Maryland State Fair & Agricultural Society, Inc. v. Lee

Eldridge, J., delivered the opinion of the Court. This is an action for damages resulting from the death of Aimee Britton when she was thrown from a runaway horse on the defendant’s premises. In April 1971 Ridgely Lee, a horse breeder and trainer, applied to stable horses at Pimlico Race Track for upcoming race events there. Because the available stalls were filled, the Pimlico Racing Secretary assigned her to accommodations at her second preference, Timonium Fair Grounds.

Mrs. Lee accepted the assignment since it was closer to her home than the other available sites at Bowie or Laurel and because it was the preference of her twenty-four ³⁷⁶ year old daughter, Aimee Britton. Additionally, Mrs. Lee testified that the alternative sites would “most likely” be exhausted by the time she appealed the Secretary’s decision and requested another racetrack. The Timonium racetrack facility is comprised of an oval track elevated approximately five feet above the barn area. The barns, located south of the track, were separated by asphalt paving from the track entrance.

To the east the barns were bordered by an approximately three and one-half foot high stone wall which separated the stabling area from York Road, a public highway. On the morning of April 14, 1971, Mrs. Lee’s daughter, Aimee Britton, was preparing to exercise one of her mother’s horses. Aimee had about 8 to 10 years’ riding experience, including previous experience at Timonium. She rode the horse from her mother’s assigned barn to a track entrance about 500 feet east of the barn; a closer and allegedly safer “paddock gate” was kept closed by the track authorities during the training hours.

The track entrance was composed of an area enclosed by two gates, and was connected to a “chute” through which Aimee proceeded on her horse in order to enter the elevated track. According to Mrs. Lee, who witnessed Aimee’s attempt to enter the track, a gust of wind blew sand and dirt which hit the horse, causing it to become slightly “fractious.” The horse backed out of the entrance and, after a horse already on the track had passed, Aimee again attempted to enter the track. The horse became “more frightened,” and again backed “sideways” out of the chute. The horse was then going in circles in the area between the two gates, and, despite Aimee’s attempt to direct it towards the track area, it went out of the gate area towards York Road.

In so doing, the horse had to traverse an asphalt path which separated the gate entrance from York Road. It then “hit the asphalt surface which also had sand on it, slipped and when it slipped, it panicked, and went in a straight line towards the wall at York Road.” As the horse jumped over the wall, Aimee fell off the horse and struck her head on the stone wall. She died a week later from the injuries to her head. ³⁷⁷ Ridgely Lee, individually and as personal representative of the estate of Aimee Britton, filed suit against the Maryland State Fair and Agricultural Society, Inc., the owner of the Timonium racetrack facility (hereinafter referred to as “Timonium”), in the Circuit Court for Baltimore County (Maguire, J.). The suit alleged that Timonium negligently maintained the racetrack and negligently permitted certain hazardous conditions to exist which caused the injuries to Aimee.

At the trial, after the presentation of the plaintiffs case, and again at the close of all the evidence, Timonium moved for a directed verdict, contending that (1) as a matter of law, the alleged defective conditions were open and obvious to Aimee, and therefore the defendant is not liable for injuries resulting from those conditions; (2) there was no legally sufficient evidence of negligence on the part of Timonium which caused or contributed to the accident; and (3) the sole proximate and legal cause of the injury was the runaway horse ridden by and in the sole control of Miss Britton. 1 The trial judge rejected the contentions, permitting four allegations of negligence to go to the jury: (1) the failure to properly maintain the racetrack by watering the racetrack prior to training horses; (2) failure to provide a dirt pathway (instead of asphalt) from the stable area to the racetrack; (3) the failure to allow the paddock gate entrance to be opened and used during training hours; and (4) the failure to enclose the stable area with chain link fencing. The jury returned a verdict for the plaintiff, and Timonium appeals. On appeal, Timonium advances four contentions. First, it argues that none of the alleged defective conditions were latent perils; rather, it claims that the conditions were “open and obvious and fully known to ... decedent, who nevertheless chose to use the premises with full knowledge ³⁷⁸ of those conditions.” Timonium asserts that under these circumstances Aimee, as a matter of law, had assumed the risks and the landowner violated no duty owed to her.

Second, it is contended that there was no proof that the conditions complained of were the proximate cause of the accident, and that therefore there should have been a verdict directed against the plaintiff. Third, Timonium asserts that the trial court erroneously instructed the jury that the “defense of assumption of risk failed if the.jury found that the rider of the runaway horse acted reasonably in the face of an emergency situation.” Fourth, Timonium argues that Mrs. Lee was improperly allowed to express certain “expert” opinions at trial. (1) A landowner owes a duty to invitees to keep his premises in a reasonably safe condition and to protect them against dangers of which he knows, or which with reasonable care he should have discovered. Lloyd v. Bowles, 260 Md. 568, 572 , 273 A. 2d 193 (1971); Mondawmin Corporation v. Kres, 258 Md. 307, 315 , 226 A. 2d 8 (1970); Yaniger v. Calvert Bldg. & Con.

Co., 183 Md. 285, 288 , 37 A. 2d 263 (1944); Maryland Sales & Serv. Corp. v. Howell, 19 Md. App. 352, 357 , 311 A. 2d 432 (1973). However, the. landowner is not an insurer of the safety, of his business invitees. Lloyd v. Bowles, supra, 260 Md. at 572 .

Thus, the general rule is that where an invitee knows of a dangerous condition and appreciates the risks involved, yet nevertheless voluntarily chooses to negotiate it, he will be barred from recovering for the risk he chose to assume. Lloyd v. Bowles, supra, 260 Md. at 572 ; Finzel v. Mazzarella, 248 Md. 227, 230 , 235 A. 2d 726 (1967); Gibson v. Beaver, 245 Md. 418, 421 , 226 A. 2d 273 (1967); Evans v. Johns Hopkins Univ., 224 Md. 234, 238-239 , 167 A. 2d 591 (1961). Timonium’s principal contention is that the instant case falls within this general rule because Aimee both knew of and appreciated the allegedly dangerous conditions, and voluntarily assumed the risks. Thus, Timonium argues that its motion for directed verdict should have been granted ³⁷⁹ because it breached no duty owed to her, or because she was barred by the defense of assumption of risk. 2 In reviewing the denial of Timonium’s motion for directed verdict, the evidence and all reasonable inferences therefrom must be considered in the light most favorable to the plaintiff.

Moran v. Faberge, 273 Md. 538, 540 , 332 A. 2d 11 (1975); Jacobson v. Julian, 246 Md. 549, 555-556 , 229 A. 2d 108 (1967); Greyhound Lines, Inc. v. Alderson, 26 Md. App. 277, 283 , 336 A. 2d 811 , cert. denied, 275 Md. 749 (1975); Tippett v. Quade, 19 Md. App. 49, 56 , 309 A. 2d 481 (1973). The record reveals that Aimee did have knowledge of three of the allegedly negligent conditions: (1) the existence of the asphalt pathway (instead of a dirt pathway); (2) the closure of the paddock gate; and (3) the three and one-half foot stone wall bordering the stable area. Mrs. Lee testified that Aimee knew of the asphalt pathway and the stone wall, and that she and Aimee had complained, at least to each other, about the asphalt pavement. When asked whether Aimee knew of the paddock gate being closed, Mrs. Lee answered, “You can see that it was closed.” However, while Mrs. Lee said she herself had complained about the paddock gate and the stone wall, she testified that Aimee had not done so.

While Mrs. Lee’s testimony shows that Aimee had prior knowledge of the above-mentioned three conditions, the evidence does not disclose Aimee’s knowledge of the sandy conditions caused by Timonium’s alleged failure to properly ³⁸⁰ water the track. Although the testimony showed that Aimee knew the track was dry and sandy on the day before the accident, the condition was not a permanent one, and Aimee could reasonably have expected it to be remedied by the next morning. In fact, a track official testified that the race course was watered “as it needs watering.” The previous day’s dry conditions, then, could have reaffirmed her expectations that the track would be appropriately watered the next day. According to Mrs. Lee, on the day of the accident Aimee did not realize that the course was dry and sandy until the horse became unruly at the gust of wind-blown sand.

Thus, despite her attempt to reenter the track, the transaction had arguably begun, and a jury could reasonably find that she had no prior knowledge of the alleged dangerous condition created by the dry track surface. As to the three conditions of which Aimee had knowledge, arguably a jury question was presented as to whether she appreciated the risks involved. Although Aimee had been riding for over eight years, and “complained” about one of the conditions, the conclusion is not inescapable that she appreciated the risks involved. In McKenzie v. Egge, 207 Md. 1 , 113 A. 2d 95 (1955), a tenant continued to use her rear porch despite previous notice to the landlord that it was defective, and the landlord argued that the tenant was either contributorily negligent or had assumed the risks of personal injury sustained when the railing collapsed.

The Court of Appeals held that the issues were for the jury’s consideration, noting that “it does not follow that because she knew of the defective condition and complained of it, she was necessarily aware of the full extent of the risk.” 207 Md. at 10 , 113 A. 2d at 99 . An objective test is to be applied in determining whether an invitee realizes the risks, Glaze v. Benson, 205 Md. 26, 33 , 106 A. 2d 124 (1954). As stated in Prosser, Torts § 55, 303 (2d ed. 1955), and quoted with approval in Gibson v. Beaver, supra, 245 Md. at 421 , “where it is clear that any person of normal intelligence in his position must have understood the danger, the issue must be decided by the Court.” In the ³⁸¹ present case, however, the record does not show that the dangers posed by negligent conditions such as those alleged would be necessarily comprehended by “any person of normal intelligence in . . . [Aimee’s] position.” Absent proof of sufficient expertise, an invitee at the Timonium racetrack like Aimee cannot be said to have fully appreciated certain dangers merely because he or she was aware of them. The trial court below, in rejecting defendant’s motion for a directed verdict, concluded that “it is a matter for the jury’s determination as to the risk of injury, whether or not it was evident to the Plaintiff. . . .” (Emphasis supplied.) In light of the directed verdict standard to be applied here, a jury issue was presented as to whether Aimee had both knowledge and appreciation of the negligent conditions.

Moreover, there is an additional reason why the issue of assumption of risk was properly submitted to the jury in this case. The trial judge instructed the jury “that the defendant cannot rely on contributory negligence or assumption of risk as a defense if the negligence of the defendant interfered with a right or privilege of Aimee Britton to use the race track facilities, unless the conduct of Aimee Britton was unreasonable under the circumstances. In any event, if the conduct and behavior of Aimee Britton was not unreasonable under the circumstances, she is not guilty of any contributory negligence or assumption of the risk which would preclude a recovery in this case.” The issuance of this instruction was not objected to below. However, even if the instruction had been objected to, we believe that it embodies a correct statement of Maryland law in light of the facts of this case.

Even if Aimee knew of and appreciated the risks inherent in the allegedly negligent conditions, the jury was entitled to find that she acted reasonably under the circumstances and therefore was entitled to recover. In certain situations, an invitee will not be barred from recovery, despite his comprehension of the dangerous ³⁸² conditions presented, unless he acted unreasonably under the circumstances. As expressed in Restatement of Torts (2d) § 343A (1) (1965) (emphasis supplied): “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm, despite such knowledge or obviousness. ” Comment (f) to that section provides (emphasis supplied): “There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection.

This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm. “Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, . .. where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk.... It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances. ” While the Maryland appellate courts have not expressly dealt with § 343 (1) of the Restatement 2d, the Court of ³⁸³ Appeals has expressly endorsed a somewhat similar section, Restatement of Torts (2d) § 473 (1965). which provides with respect to contributory negligence: “If the defendant’s negligence has made the plaintiff’s exercise of a right or privilege impossible unless he exposes himself to a risk of bodily harm, the plaintiff is not guilty of contributory negligence in doing so unless he acts unreasonably.” Ensor v. Ortman, 243 Md. 81, 89 , 220 A. 2d 82 (1966); McKenzie v. Egge, supra, 207 Md. at 11 . Although, by its terms, § 473 does not deal with the doctrine of assumption of risk, it appears that some cases have adopted the section in that context.

In Sacks v. Pleasant, 253 Md. 40 , 251 A. 2d 858 (1969), a tenant sought recovery from the landlord for damages sustained when she fell from a defective toilet seat in her apartment. The landlord contended that the plaintiff had either assumed the risk or was contributorily negligent because she was aware that the toilet seat was loose. The Court noted that it did not regard the tenant’s use of the toilet seat as an “exposure to a known or obvious danger,” since, although she knew the seat to be loose, it had never come off before and