Boddie v. Scott

SALMON, Judge. Appellant, Barbara Boddie, negligently started a fire in her kitchen. She called to appellee, Astley Scott, to help her extinguish the fire. Mr. Scott successfully put the fire out, but in doing so, severely burned his hands.

A jury in the Circuit Court for Prince George’s County found that Ms. Boddie was liable for the injury Mr. Scott received. Ms. Boddie contends on appeal that Mr. Scott is barred from recovery against her by the assumption of the risk doctrine. Whether Ms. Boddie is right depends on how we resolve a question of first impression in this state, viz: Is the defense of assumption of risk available when a plaintiff is injured while attempting to save property from a peril created by the defendant’s negligence? We hold that the doctrine is unavailable when a plaintiff is injured in attempting such a rescue, so long as the plaintiff acts reasonably under the circumstances.

I. FACTS 1 On October 6, 1995, appellant was at her home in Ft. Washington, Maryland, when she phoned Warner Electric and asked that they send an electrician to her home to fix a problem with one of her electrical outlets. While waiting for an electrician to arrive, she began to prepare dinner. Ms. ³⁷⁸ Boddie poured cooking oil into a frying pan and lit the stove.

After the oil had heated for five minutes or so, the doorbell rang. Ms. Boddie, leaving the oil cooking, went to the front door and greeted appellee, Astley Scott, an electrician employed by Warner Electric. Forgetting the cooking oil, Ms. Boddie escorted Mr. Scott to the basement recreation room and told him of the problem with an outlet. The two were in the basement for approximately ten minutes when Mr. Scott asked Ms. Boddie to go upstairs to get some appliance that she regularly used (such as a hair dryer) so that he could test the electrical outlet.

Ms. Boddie got as far as the top of the basement steps when she yelled, “[P]lease, sir, come help me, my house is on fire.” She yelled the same plea a second time, and Mr. Scott ran upstairs to the kitchen. There he saw flames rising in a huge column above the frying pan. In Mr. Scott’s words, “She had like about six feet of flames towering all the way up to the ceiling.” The flames were “curling over” the ceiling, and the kitchen cabinets were already blackened. He thought, “The place [will] be burned down in no time.” With his “adrenaline ... flowing” and in an excited tone, Mr. Scott inquired, “Miss Boddie, what do I put this out with[?]” Ms. Boddie, who had a fire extinguisher under her sink, made no response but stood “scared” and immobile.

Mr. Scott repeated the question, but again got no response. He then asked Ms. Boddie if she had something he could use to hold the frying pan. Once again, Ms. Boddie made no response. Mr. Scott saw no dish towels or potholders in the vicinity.

He did, however, espy a newspaper. After asking Ms. Boddie to open the front door, Mr. Scott grabbed a part of the newspaper, put it around the frying plan handle, seized the handle of the frying pan in both hands, and started to walk briskly towards the front door, which was approximately eighteen feet away. As he walked, the flames from the cooking oil traveled toward him, burning his hands. Because his hands were being burned, he hurled the flaming pan out the front door — which was held open by Ms. Boddie’s six-year- ³⁷⁹ old grandson, Anton Hale.

When he threw the pan, grease splashed onto Mr. Scott’s hands and seriously injured him. Approximately thirty seconds elapsed between the instant Mr. Scott first saw the flames and the point when he picked up the frying pan. Mr. Scott described his state of mind immediately prior to picking up the pan by saying: “I was scared, but I wasn’t scared stiff.” Mr. Scott was about seven feet from the front door when he threw the pan. His hands were not burned from holding the frying pan handle — presumably because the palms of his hands were insulated by the newspaper he had wrapped around the handle.

Mr. Scott knew the oil was hot and knew when he threw the pan that this action could be a risk to his own safety, but he decided to throw the pan anyway to save himself because the flames were coming back in his direction and he feared that if he did not throw the pan he “would be engulfed in flames.” Mr. Scott sued Ms. Boddie in the Circuit Court for Prince George’s County for negligence. On September 3, 1997, a jury trial was held (Sothoron, J., presiding) on the issue of liability only. Ms. Boddie made a motion for judgment in her favor at the end of the plaintiff’s case and at the conclusion of the entire case. She contended, inter alia, that Mr. Scott’s claim was barred by the assumption of the risk doctrine.

The trial judge denied the motions for judgment. The jury determined (1) that Ms. Boddie negligently caused plaintiff injury, (2) that Mr. Scott was not contributorily negligent, and (3) that Mr. Scott did not assume the risk of injury. Based on a stipulation as to damages, Judge Sothoron entered a judgment in the amount of $100,000 against Ms. Boddie and in favor of Mr. Scott. ANALYSIS The most recent Court of Appeals decision concerning the doctrine of assumption of risk is ADM Partnership v. ³⁸⁰ Martin, 348 Md. 84, 702 A.2d 730 (1997), in which the Court said: In Maryland, it is well settled that in order to establish the defense of assumption of risk, the defendant must show that the plaintiff: (1) had knowledge of the risk of the danger; (2) appreciated that risk; and (3) voluntarily confronted the risk of danger.

(Citations omitted.) “The 'doctrine of assumption of risk rests upon an intentional and voluntary exposure to a known danger and, therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of conduct toward [her] and to take [her] chances from harm from a particular risk.” Rogers v. Frush, 257 Md. 233, 243 , 262 A.2d 549 (1970). See also W. Page Keeton, Prosser and Keeton on the Law of Torts § 68 at 490 (5th ed.1984) (hereinafter Prosser and Keeton). Assumption of risk means “voluntary incurring that of an accident which may not occur, and which the person assuming the risk may be careful to. avoid after starting.” Schroyer[ v. McNeal], 323 Md. [275,] 281, 592 A.2d 1119 [ (1991) ]. Thus, if established, it functions as a complete bar to recovery because “it is a previous abandonment of the right to complain if an accident occurs.” Warner [v. Markoe], 171 Md. [351,] 360 [ 189 A. 260 (1937) ].

Martin, 348 Md. at 90-91 , 702 A.2d 730 . In the case sub judice, there can be no doubt but that Mr. Scott had knowledge of the risk of danger and that he appreciated the risk when he decided to carry the flaming pan outside. There is a question, however, as to whether Mr. Scott voluntarily assumed the risk of injury. In regard to ■ voluntariness, the Court said in Martin: [I]n order for a plaintiff to assume voluntarily a risk of danger, there must exist “the willingness of the plaintiff to take an informed chance,” Schroyer, 323 Md. at 283 , 592 A.2d 1119 ; there can be no restriction on the plaintiffs freedom of choice either by the existing circumstances or by coercion emanating from the defendant.

This is so because ³⁸¹ [e]ven where the plaintiff does not protest, the risk is not assumed where the conduct of the defendant has left him no reasonable alternative. Where the defendant puts him to a choice of evils, there is a species of duress, which destroys the idea of freedom of election. Prosser and Keeton § 68 at 490-91. Martin, 348 Md. at 92-93, 702 A.2d 730 .

In 4 Fowler V. Harper et al., The Law of Torts § 21.1, at 204-05, 208-10 (2d ed.1986), the authors say: It is clear then that the concept of assumption of risk in the primary sense is not to be considered in a situation where defendant has breached a duty towards plaintiff.... This means specifically that even when a danger is fully known and comprehended plaintiff is not barred from recovery simply because he chooses deliberately to encounter it, in the following situations: (7) Where plaintiff seeks to rescue another person, or his own or another’s property which is endangered by defendant’s negligence____ Of course the means of rescue chosen might be so unreasonable as to amount to negligence even in the light of the emergency. If so, plaintiff will be barred for contributory negligence but not for want of breach of duty towards him. Id.

(footnotes omitted). W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68, at 491 (5th ed.1984), agrees with Harper & James but expresses the rule in a slightly different manner: Those who dash in to save their own property, or the lives or property of others, from a peril created by the defendant’s negligence, do not assume the risk where the alternative is to allow the threatened harm to occur. In all of these cases, of course, the danger may be out of all proportion to the value of any benefits involved, and so the plaintiff may be charged with contributory negligence for unreasonably choosing to confront the risk. And where there is a reason ³⁸² ably safe alternative open, the plaintiffs choice of the dangerous way is a free one, and may amount to assumption of risk, negligence or both.

(Footnotes omitted.) The rule set forth in Harper & James and by Prosser and Keeton has been adopted in Maryland in situations when the plaintiff acts to save his own or someone else’s life. See Scott v. John H. Hampshire, Inc., 246 Md. 171, 175 , 227 A.2d 751 (1967); Maryland State Fair and Agric. Soc’y v. Lee, 29 Md.App. 374, 388 , 348 A.2d 44 (1975). Both Scott v. John H. Hampshire, Inc. and Lee are distinguishable from the case at hand, however, because neither deals with attempts to save property.

In Scott v. John H. Hampshire, Inc., the plaintiff, an ironworker, noticed that steel was being unloaded from a truck in a dangerous manner. See 246 Md. at 174 , 227 A.2d 751 . He left a place of safety and went to within twenty feet of the unloading operation and commanded that everyone “stop what you’re doing.” Id. The foreman was then warned by the plaintiff that it was dangerous to wrap the steel with the type of chain that was being used and that someone was likely to get hurt.

See id. The foreman temporized by saying he would move the steel a little further and would then stop, but as he again moved the steel, the chain broke and struck plaintiff on the head. See id. The ironworker sued John H. Hampshire, Inc. — the owner of the steel.

At the end of the plaintiffs case, the trial court ruled that the plaintiff was guilty of contributory negligence and had assumed the risk of injury; the court therefore directed a verdict in favor of John H. Hampshire, Inc. See id. The Court of Appeals reversed, saying: So regardless of whether the defense was contributory negligence or assumption of risk, neither defense is applicable in this case where the conduct of the defendant appears to have created such a situation as to justify if not to compel the plaintiff to undergo the risk of being injured in order to warn others and avert their harm. People’s Drug Stores v. ³⁸³ Windham, 178 Md. 172 , 12 A.2d 532 (1940); Restatement of Torts, § 893. Also see Green v. Standard Wholesale Phosphate and Acid Works, 29 F.2d 746 (D.Md.1928); Dunagan v. Appalachian Power Co., 11 F.2d 65 (4th Cir.1926); Restatement of Torts 2d, § 472.

This Court, in recognizing the principle that it is commendable to save life, has consistently held that a person who endeavors to avert the consequences of the negligence of another person, by an act which is dangerous but not reckless, is not precluded from recovering damages for injury suffered as a consequence of having interposed. Maryland Steel Co. v. Marney, 88 Md. 482 , 42 A. 60 (1898); American Express Co. v. Terry, 126 Md. 254 , 94 A. 1026 (1915); State use of Dove v. M. & C.C. of Baltimore, 141 Md. 344 , 118 A. 753 (1922); Lashley v. Dawson, 162 Md. 549 , 160 A. 738 (1932). In Marney it was said (at p. 498, 42 A. 60 ) that the “law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness.” The same statement of law was cited with approval in Terry and Dove. And in Lashley it was also said (at p. 564, 160 A. 738 ) that “the law measures acts done under the spur and stress of sudden emergencies ..., when done for the purpose of averting serious or even fatal consequences to others, with more indulgence than when they are impelled by no such motive.” In a case such as this, the incurring of danger was not negligence per se and the question of whether the giving of the warning was justified is ordinarily one for the jury to