Martin v. ADM Partnership

ALPERT, Judge. In Schroyer v. McNeal, 323 Md. 275 , 592 A.2d 1119 (1991), the ice and snow of the winter season combined to contribute to Ms. McNeal slipping and injuring herself while attempting to traverse a snow covered path into her hotel. Ms. McNeal could have used a second path that had been cleared of the seasonal fallout but opted to take her chances with the covered path because it was closer to her room. Appellee relies significantly on the Schroyer decision in its brief, but the similarity between the Schroyer case and the case at bar is limited to the fact of an injury caused by a slippery sidewalk, and nothing more.

Appellants, Keen Tykenko Martin (“Martin”) and American Motorists Insurance Co., filed a two-count complaint against appellees 1 on February 21, 1992, seeking compensation for injuries sustained by Martin when she slipped and fell on an icy walkway while making a delivery to appellees’ property at 98 Church Street in Rockville, Maryland. Trial was held before a jury in the Circuit Court for Montgomery County on October 3-4, 1994. At the close of appellants’ case, appellees moved for judgment, arguing that Martin assumed the risk of her alleged injuries as a matter of law. Appellees’ motion for judgment was granted on October 4, 1994.

This appeal followed, wherein appellants make the following arguments: I. The trial court erred in granting appellees’ motion for judgment when the facts and inferences offered to support their affirmative defense were controverted. ⁶⁵⁶ II. The trial court erred in granting the motion for judgment in favor of the appellees when the evidence demonstrated that they failed to meet the burden of proof of their affirmative defense. We hold that the trial court erred in granting appellees’ motion for judgment, and we remand the case to the Circuit Court for Montgomery County for a new trial. Facts and Proceedings On March 8, 1989, appellant Martin, while employed as a delivery person for Ideal Reprographics, was assigned to deliver blueprints to an occupant of 98 Church Street in Rockville, Maryland, a property owned by appellees.

Martin pulled her pickup truck into the parking lot directly in front of the walkway leading up to the building. She noted that there was ice and unplowed snow on the parking lot and entrance walkway. Martin testified that she felt it was safe to enter the building despite the condition of the parking lot and walkway because she saw other cars parked in the lot, footprints on the ground, and people in the building. Furthermore, she testified that she believed she was required to make the delivery for her employer.

Martin exited her truck and went to the passenger side to retrieve the blueprints to be delivered. As she proceeded toward the walkway to the building, Martin slipped and nearly fell to the ground, catching herself from falling by grabbing onto her truck. She then walked into the building and delivered the blueprints. Upon leaving the building, Martin slipped and fell on the walkway, sustaining injuries to her lower back.

She filed suit in the Circuit Court for Montgomery County against the owners of the premises for negligence in failing to keep their property safe, and this appeal ultimately followed. Discussion Appellants argue that the trial court erred in granting appellees’ motion for judgment for two reasons: first, because the facts and inferences offered to support the affirmative ⁶⁵⁷ defense of assumption of risk were controverted, and second, because appellees failed to meet the burden of proof required for the defense of assumption of risk. Appellees disagree, contending that the evidence conclusively established that Martin voluntarily and knowingly encountered a dangerous condition which caused her injury, and therefore, she assumed the risk as a matter of law. We agree with appellants.

In reviewing a trial court’s grant of a motion for judgment in a jury trial, this Court must conduct the same analysis as the trial court, viewing all evidence in the light most favorable to the non-moving party. See Cavacos v. Sarwar, 313 Md. 248, 250 , 545 A.2d 46 (1988); Md.Rule 2-519(b). Thus, we may affirm the grant of the motion for judgment only if, when considering evidence most favorable to appellants’ claim, we conclude that there was insufficient evidence to create a jury question. Cavacos, 313 Md. at 250 , 545 A.2d 46 .

In order to establish that a plaintiff assumed the risk of injury as a matter of law, “the defendant must show that the plaintiff (1) had knowledge of the risk of danger, (2) appreciated that risk and (3) voluntarily exposed [herself] to it.” Liscombe v. Potomac Edison Co., 495 A.2d 838 , 303 Md. 619, 630 (1985) (quoting from Stancill v. Potomac Elec. Power Co., 744 F.2d 861 , 866 (D.C.Cir.1984)). Proof of negligence on the part of the plaintiff is not required, nor is it necessary to show the reasonableness of a plaintiff’s willingness to encounter a known risk. Schroyer v. McNeal, 323 Md. 275, 283 , 592 A.2d 1119 (1991).

Ordinarily, the test of whether a plaintiff is aware of and appreciates the risk involved in a situation is an objective one, to be resolved by a jury. Id. “On the other hand, when it is clear that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.” Id. at 283-84 , 592 A.2d 1119 . Knowledge of the Danger Martin testified at her trial that when she pulled into the parking lot of 98 Church Street, she saw “snow and stuff ⁶⁵⁸ still there.” She explained that it had been a couple of days since the snow had fallen, and when she drove up to the front door of the building she saw footprints in the snow and people in the building working. Therefore, Martin explained, she decided to attempt to deliver the blueprints.

On cross-examination, Martin admitted that prior to exiting her truck, she had seen that the walkways leading up to 98 Church Street were icy: [DEFENDANTS’ ATTORNEY] And while you were still in the truck, before you ever got out of the truck, you saw that the walkways, by your description, were icy, correct? [MARTIN] Correct. Martin further explained that when she first exited the truck, she went around to the passenger side to get the blueprints and she slipped on the ice, grabbing onto the truck to prevent herself from falling. Martin’s admission that she had seen that the walkways were icy and that she had slipped on the ice prior to the slip- and-fall that formed the basis for this claim, both support the trial court’s finding that Martin was aware of the risk. Thus, the first prong of the test to determine assumption of risk is satisfied.

Appreciation of the Risk Appellants argue that there is no evidence that Martin appreciated the risk because she testified that, based on the presence of footprints in the snow and people in the building, she thought it was safe to traverse the property. Appellants cite no legal authority for the principle that if a person believed it safe to encounter a known risk, a person could not be held to have assumed that risk. In fact, Schroyer makes clear that “[a] plaintiff who proceeds reasonably, and with caution, after voluntarily accepting a risk, not unreasonable in itself, may not be guilty of contributory negligence, but may have assumed the risk.” Schroyer, 323 Md. at 283 , 592 A.2d 1119 citing Pinehurst Co. v. Phelps, 163 Md. 68, 72 , 160 A. 736 (1932). Thus, that Martin may have thought it was ⁶⁵⁹ safe to traverse the icy walkway has no bearing on whether she had an appreciation of the risk.

The Court of Appeals noted in Schroyer that “[t]he danger of slipping on ice was identified in Prosser as one of the ‘risks which any one of adult age must be taken to appreciate.’ ” Schroyer, 323 Md. at 284 , 592 A.2d 1119 (quoting W. Prosser, Handbook of the Law of Torts § 55 at 310 (2d ed.)). The trial court did not err, therefore, in finding that Martin, a person of adult age, appreciated the risk of slipping on the ice. Thus, the second prong of the test for assumption of risk is satisfied. Voluntariness Appellants would distinguish Schroyer from the instant case by arguing that Martin, unlike McNeal, the plaintiff in Schroyer , had no alternative means of entering the building, and was not proceeding for her own convenience.

Therefore, they argue that Martin did not voluntarily walk across the icy walkway. We agree to this extent: the question of voluntariness should have been submitted to the jury. In Schroyer , the plaintiff who slipped and fell on an icy sidewalk chose to use an unplowed side entrance to the building, rather than the plowed front entrance, so she could more easily unload boxes and paperwork to her hotel room. Schroyer, 323 Md. at 278 , 592 A.2d 1119 .

The Court of Appeals held in Schroyer that McNeal’s actions were voluntary because she was not acting for her employer, but rather, was acting for her own benefit. The Court, therefore, did not need to examine the significance, if any, that having access to a safe alternative entrance had on the finding of assumption of risk. [McNeal] knew that the area was ice and snow covered and that the ice and snow were slippery. Nevertheless, she parked in the area and, notwithstanding, according to her testimony, that she proceeded carefully, she took a chance and walked over the ice and snow covered parking lot and sidewalk because she did not think it was ‘that’ slippery. ⁶⁶⁰ It is clear, on this record, that McNeal took an informed chance. Fully aware of the danger posed by an ice and snow covered parking lot and sidewalk, she voluntarily chose to park and traverse it, albeit carefully, for her own purposes, i.e. her convenience in unloading her belongings ....

With full knowledge that the parking lot and sidewalk were ice and snow covered and aware that the ice and snow were slippery, McNeal voluntarily chose to park on the parking lot and to walk across it and the sidewalk, thus indicating her willingness to accept the risk and relieving the Sehroyers of responsibility for her safety. Consequently, while the issue of her contributory negligence may well have been for the jury, the opposite is true with respect to her