Menish v. Polinger Company

0’Donnell, J., delivered the opinion of the Court. In this case, we are called upon to adjudge whether the appellant, Maryal V. Menish, was guilty of contributory negligence as a matter of law, when she slipped and fell on a patch of ice, upon a walkway beneath the marquee at an entrance to the Highland House, in Chevy Chase, Maryland. That building was owned and operated by the appellee, Polinger Company. The morning of February 14, 1973, was cold and drizzly.

Mrs. Menish, a real estate salesperson, affiliated with CBS Realty, whose offices were in the Highland House, had an appointment with a client, Mrs. Lela Mead, to revisit a home which Mrs. Mead had purchased through her. When Mrs. Mead departed her home to pick up Mrs. Menish, at about 11 a.m., there was no indication that any of the precipitation, which had been falling as a fine mist since at least 8 a.m., was freezing, either upon her automobile, or upon the highways or adjacent sidewalks. 1 The appellant walked a ⁵⁵⁶ distance of approximately 50 feet, down the sidewalk from her residence, in the District of Columbia, to embark in Mrs. Mead’s automobile, without encountering any slippery conditions. The two ladies drove to Highland House in order that Mrs. Menish might obtain from the offices of CBS Realty, the keys for the residence they were en route to inspect. During the 10 or 15-minute drive from the Menish residence to Highland House, there was no indication of any freezing conditions.

The appellant disembarked from the Mead automobile, walked across .a driveway and along a cement sidewalk, again without encountering any icing conditions. She noted nothing unusual about the condition of the concrete sidewalk approaching the marquee, other than “that it was wet.” As she got upon a brick walkway leading from the concrete sidewalk and under the marquee at the- Park Avenue entrance to the Highland House, and after she had walked “about a third of the way under the marquee” toward the doorway, her foot slipped upon an icy area and she fell and broke her right ankle. It was only as she lay upon the ground that she was aware of the presence of ice; the glazed coating was transparent, with the bricks of the sidewalk showing through it. As she lay there, awaiting assistance, she noticed that water was dripping from an overhead recessed fixture in the ceiling of the marquee.

At the time of the incident, the appellant was wearing low walking shoes with leather soles and rubber heels. Mrs. Mead, waiting in her automobile, saw Mrs. Menish slip and fall when whe was “about a third of the way into the brick walkway which led from the cement walk to the door of the Highland House.” As she walked along the concrete sidewalk, en route to assisting Mrs. Menish, she found no slippery conditions on it. Although forewarned by Mrs. Menish’s predicament, as she got to “about the same spot [where Mrs. Menish was, she] slipped and fell, too,” but was uninjured. There was testimony offered in the trial court on behalf of the appellee from Mrs. Rose Berlin, resident manager of the Highland House, that before being advised of Mrs. Menish’s ⁵⁵⁷ injury, she had received no notice that morning that ice was forming on any of the sidewalks adjacent to the building.

There was also testimony from Jorge Carmouze, the garageman and outside porter at the Highland House, that prior to the report of Mrs. Menish’s fall, he had neither heard of, nor seen, the accumulation of any ice upon the sidewalks adjacent to the building; it was his view that a “freezing rain” had begun about “10 minutes before” he heard of the incident. When he arrived at the place where Mrs. Menish had fallen, he confirmed that there was ice upon the brick walk area beneath the marquee and applied a commercial thawing agent. During the course of the trial in the Circuit Court for Montgomery County, the trial judge (Mitchell, J.), in accordance with Maryland Rule 552 c, reserved decision, both at the conclusion of the appellant’s evidence, as well as at the close of all the evidence, upon the appellee’s motions for a directed verdict, predicated upon contentions (a) that there was no legally sufficient evidence of primary negligence on the part of the appellee, and (b) that the appellant, Maryal V. Menish, was guilty of contributory negligence as a matter of law. The jury returned verdicts in favor of Mrs. Menish in the amount of $4,766.30 as her damages, and in favor of her and her husband, the appellant, George T. Menish, in the amount of $200.00 for loss of consortium.

After the rendition of these verdicts, the trial court, pursuant to Rule 563, entered judgments N.O.V. in favor of the appellee upon each count solely upon the ground that Maryal V. Menish was guilty of contributory negligence as a matter of law. From such judgments, the Menishes appealed to ti e Court of Special Appeals; we granted a writ of certiorari before the case was heard in that court. See Maryland Code (1974), Courts and Judicial Proceedings Article, § 12-203. Although “primary negligence and contributory negligence are often thought of as simply opposite sides of the same coin,” there is a significant difference between them; while “primary negligence involves a breach of duty ⁵⁵⁸ owed to another, contributory negligence involves a failure to take proper precautions for one’s own safety.” Baltimore County v. State, Use of Keenan, 232 Md. 350, 362 , 193 A. 2d 30, 37 (1963).

Although the appellee has devoted a substantial portion of its brief to its contention that there was no legally sufficient evidence of primary negligence on its part, the trial court, in granting the appellee’s motion for judgment N.O.V., did so on the ground that, as a matter' of law, Mrs. Menish was guilty of negligence which contributed to the cause of the accident. As the appellee conceded at argument' before us, implicit in this was a finding by the court that there had been sufficient evidence of negligence on the part of the appellee to go to the jury. No cross-appeal was filed by the Polinger Company pursuant to Maryland Rule 1012 b, and none was required, Burkert v. Smith, 201 Md. 452, 454-55 , 94 A. 2d 460, 461 (1953): “Although no mention was made by the trial court of the question of the defendants’ primary -negligence, it was argued in the briefs and orally in this court. The question is necessarily involved in an examination of the Circuit Court’s action, for even if it should be found to have been in error in holding the plaintiff guilty of contributory negligence the action may still not be disturbed if there was no sufficient evidence of the defendants’ negligence to require submission to the jury.

Accordingly, our inquiry is as to both primary and contributory negligence.” As a consequence, we have made an independent review of the testimony, and have concluded that the evidence, and reasonable inferences 'to be drawn therefrom, were sufficient to warrant the submission of the issue of primary negligence to the jury. We now turn to the question of contributory negligence. The law contemplates that every person having the capacity to exercise ordinary and reasonable care for his ⁵⁵⁹ own protection against injury, will do so; it is when he fails to use such care that he is guilty of contributory negligence. See Southern Maryland Elec.

Co-Op., Inc. v. Blanchard, supra; Baltimore County v. State, Use of Keenan, supra. “Contributory negligence is the failure to observe ordinary care for one’s own safety. ‘It is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances.’ Potts v. Armour & Co., 183 Md. 483, 490 , [ 39 A. 2d 552, 556 ] (1944).” Kasten Constr. Co. v. Evans, 260 Md. 536, 541 , 273 A. 2d 90, 92 (1971). See also Campfield v. Crowther, 252 Md. 88, 93 , 249 A. 2d 168, 172 (1969). In Craig v. Greenbelt Consumer Services, Inc., supra, citing Restatement (Second) of Torts § 463 (1965) and W. Prosser, Torts § 64, at 427 (3rd ed. 1964), “contributory negligence” is defined as “conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiffs harm.” 244 Md. at 97, 222 A. 2d at 837.

In measuring contributory negligence, the standard of care to be used as the criterion is that of an ordinarily prudent person under the same or similar circumstances, not that of a very cautious person. Sanders v. Williams, 209 Md. 149, 153 , 120 A. 2d 397, 399 (1956); and what an ordinarily prudent and careful person would do under a given set of circumstances is usually controlled by the instinctive urge of one to protect himself from harm. Greer Lines Company v. Roberts, 216 Md. 69, 79 , 139 A. 2d 235, 239 (1958); Martin v. Sweeney, 207 Md. 543, 548 , 114 A. 2d 825, 827 (1955). In the trial court, as here, the appellee, in contending that the appellant was guilty of contributory negligence, argued that “she doesn’t know whether she even looked [at] the brick area to see if ice was there,” and cites testimony, ⁵⁶⁰ elicited from Mrs. Menish, upon cross-examination by the appellee, as follows: “Q. And you did not have any difficulty walking on the sidewalk?

A. No. Q. Did you look down at the sidewalk as you were walking on it? A. Just glanced at it. Q. Did you see anything unusual about it? A. It was wet. * * * “Q. Did you look down at the brick as you were walking on it?

A. I probably just glanced at it. I don’t remember looking at it. There really wasn't that much time. * * * “Q. Then as you started walking up the walkway, this brick walkway, did you look down at all? A. I don’t know that I did.

It happened so fast, I took about three steps on it, and on the third step my feet just went from under me and I fell. “Q. As you were walking in the building did you notice any ice on the brick sidewalk, brick walkway? A. As I was walking in? Q. Yes. A. I don’t even know I looked at the brick other than to notice there was nothing, you know, that I should trip on, for instance, a bicycle or something, there was nothing there.” Before the doctrine of contributory negligence can be successfully invoked, it must be demonstrated that the ⁵⁶¹ injured party acted, or failed to act, with knowledge and appreciation, either actual or imputed, of the danger of injury which his conduct involves.

Hooper v. Mougin, 263 Md. 630, 634 , 284 A. 2d 236, 239 (1971); Rogers v. Frush, 257 Md. 233, 239 , 262 A. 2d 549, 552 (1970); Honolulu, Ltd. v. Cain, 244 Md. 590, 599 , 224 A. 2d 433, 438 (1966); Tie Bar, Inc. v. Shartzer, 249 Md. 711, 715-16 , 241 A. 2d 582, 585 (1968); Sanders v. Williams, supra, at 152, 120 A. 2d at 399 . Stated another way, when one who knows and appreciates, or in the exercise of ordinary care should know and appreciate, the existence of danger from which injury might reasonably be anticipated, he must exercise ordinary care to avoid such injury; when by his voluntary acts or omissions he exposes himself to danger of which he has actual or imputed knowledge, he may be guilty of contributory negligence. Burkert v. Smith, 201 Md. 452, 456-59 , 94 A. 2d 460, 461-63 (1953); Yaniger v. Calvert Bldg. and Constr. Co., 183 Md. 285, 291 , 37 A. 2d 263, 265 (1944).

In Sanders v. Williams, supra, our predecessors, speaking through Judge Hammond, concerning the foreseeability of harm in connection with the invocation of contributory negligence, stated: “As is true of primary negligence, one measure of contributory negligence is the need, in a given situation, to anticipate danger. Presence or absence of reasonable foresight is an essential part of the concept. One is charged with notice of what a reasonably and ordinarily prudent person would have foreseen and so must foresee what common experience tells may, in all likelihood, occur, and to anticipate and guard against what usually happens. * * * Absent actual or constructive knowledge to the contrary, one may act on the assumption that he will not be exposed to danger that will come only by the breach of duty which another owes him. He is not bound to anticipate negligent acts or omissions on the part of others unless, under the circumstances, an ordinarily prudent person would ⁵⁶² know, or should know, that it was not safe to make the assumption of due care on the part of the other person.” 209 Md. at 152 , 120 A. 2d at 398-99 .

(citations omitted, emphasis added) ■ The principle stated in Sanders v. Williams, supra, was quoted with approval and followed in Hensley v. Pirzchalski, 212 Md. 471, 474, 129 A. 2d 691, 693 (1957). See also Tie Bar, Inc. v. Shartzer, supra. Thus, in the application of the doctrine of contributory negligence, a critical element is whether or not the plaintiff, chargeable with notice of what a reasonably and ordinarily prudent person would have foreseen, and chargeable with foreseeing what common experience tells may, in all likelihood, occur, took proper precautions for his own safety. Baltimore County v. State, Use of Keenan, supra.

See also Kasten Constr. Co. v. Evans, supra; Hooper v. Mougin, supra; Sanders v. Williams, supra; Restatement (Second) of Torts § 466 (1965). The rule to be applied, in determining whether the facts justify a holding that the plaintiff was guilty of contributory negligence as a matter of law, is that “the act [or omission] so relied on must be distinct, prominent and decisive, and one about which reasonable minds would not differ in declaring it to be negligence.” Reiser v. Abramson, 264 Md. 372, 378 , 286 A. 2d 91, 93 (1972); Kasten Constr. Co. v. Evans, supra, at 541-42, 273 A. 2d at 93 ; Gast, Inc. v. Kitchner, 247 Md. 677, 686 , 234 A. 2d. 127, 132 (1967); Vokroy, Admr. v. Johnson, 233 Md. 269, 273 , 196 A. 2d 451, 453 (1964).

In Reiser v. Abramson, supra, Judge Smith, writing for this Court, stated: “The burden of proving contributory negligence is on the defendant. Baltimore & O.R.R. v. Plews, 262 Md. 442, 454 , 278 A. 2d 287 (1971). As we observed in Rogers v. Frush, 257 Md. 233, 239 , 262 A. 2d 549 (1970), ‘It is not every action on the part of a litigant which an opponent by way of “second guessing” or hindsight may successfully label as ⁵⁶³ contributory negligence.’ Also, as this Court said in Abraham v. Moler, 253 Md. 215 , 252 A. 2d 68 (1969): “ ‘Contributory negligence is an affirmative defense which was available to appellants and they had the burden of proving not only that a reasonably prudent person would, in the circumstances, have taken certain precautions but also that Mrs. Moler failed to take those precautions and that her failure so to do directly contributed to her injury.’Id. at 218. “The question of contributory negligence must be considered in the light of all the inferences favorable to the plaintiffs case that may be fairly deduced from the evidence. Where there is a conflict of evidence as to material facts relied on to establish contributory negligence,