Neal v. Prince George's County

HOLLANDER, Judge. In this case, we must analyze the concept of voluntariness in deciding whether a recipient of social service benefits assumed the risk of falling when she walked on an icy sidewalk in order to keep a scheduled appointment with the Maryland Department of Social Services (“DSS”), rather than risk adverse consequences from missing the appointment. Janet L. Neal, appellant, brought a negligence action against Prince George’s County and Palmer Park Condominium Association, appellees, for injuries she sustained when she fell on January 24,1994 on an ice-covered sidewalk leading to the DSS office in Landover. At the time, appellant had an appointment with DSS to obtain medical assistance benefits for her young son; the accident occurred as appellant was approaching the only entrance to the DSS office.

Appellees moved for summary judgment, claiming that appellant assumed the risk when she walked on the icy sidewalk. Appellant denied that her action was voluntary. Following a hearing, the Circuit Court for Prince George’s County concluded that appellant assumed the risk of the occurrence, and granted appellees’ motion. Thereafter, appellant timely noted her appeal.

She presents a single question for our review, which we have rephrased: Did the court err in granting summary judgment in favor of the defendants when there was a dispute of material fact as to whether plaintiff voluntarily encountered a known risk? ⁴⁶³ We conclude that the circuit court erred in granting summary judgment. In our view, it is for the jury to determine whether appellant voluntarily assumed the risk of falling on the ice. Accordingly, we shall reverse and remand for further proceedings. Factual Background Appellant had an appointment with DSS on January 24, 1994 at 9:45 a.m. at its office in Landover, for the purpose of obtaining medical assistance benefits for her son, Derek, who was then four years old.

Appellant arrived at about 9:00 a.m., parked her car, and observed that snow was on the ground and that the parking lot was icy. There was only one sidewalk leading to the entrance to the DSS office, which was also covered with ice. Nevertheless, the DSS office was open for business and so appellant, who was wearing boots, proceeded across the parking lot and up to the sidewalk, from which she entered the office without incident. After waiting approximately 20 minutes for her interview, appellant was informed that she needed identification to register Derek for medical assistance.

Consequently, she was “told” to return home to retrieve her identification. Neal exited the building and proceeded on the icy sidewalk. After taking about ten or fifteen steps, she slipped on the ice but did not fall. Appellant then drove to her home, which was located a few minutes away, obtained the necessary identification, drove back to DSS, and parked in the identical parking space that she had previously used.

As there was only one path available to appellant to reach the DSS entrance, she again traversed the icy path. Appellant took about three or four steps and slipped at approximately the same location where she had slipped earlier. Unfortunately, this time appellant fell and fractured her left tibia and fibula. At her deposition, appellant said of her decision to cross the ice another time: “I looked and I was scared to walk there, but I couldn’t find another place to walk.” She added: I was cautious when I went back because I knew I had already slipped.

So I was trying to watch where I was ⁴⁶⁴ going. I was trying to find a place that I didn’t have to go back the same way. And since I didn’t, I just took my chances, went on across. And once I got right smack in the middle, I fell backwards, slid backwards.

(Emphasis added.) Appellant also explained at her deposition that she thought her appointment was mandatory; while she did not “want to come [to DSS] that day,” because of the weather, she thought she “had to be there.” When asked whether she could have rescheduled the appointment, she responded: I’m not sure. Because usually when you do that, if you have an appointment there and you don’t keep it, they’ll close your case or — sometimes you got to wait like 30 days to get another appointment. Appellant also explained that she had no health insurance for her son, and needed medical assistance in order to obtain a physical examination and vaccinations for him that were required for school and child care. Appellant also believed that her public assistance benefits would be terminated if she did not take her child to the doctor.

Thereafter, appellees moved for summary judgment, asserting the affirmative defense of assumption of the risk. At the hearing, the circuit court concluded: “I think that she took a chance, that she in her own words ‘took my chances.’ I think that there was assumption of the risk, and the motion for summary judgment is granted.” Standard of Review “In deciding a motion for summary judgment ... the trial court must decide whether there is any genuine dispute as to material facts and, if not, whether either party is entitled to judgment as a matter of law.” Bagwell v. Peninsula Regional Medical Ctr., 106 Md.App. 470, 488 , 665 A.2d 297 (1995), cert. denied, 341 Md. 172 , 669 A.2d 1360 (1996); see Md. Rule 2-501; Davis v. DiPino, 337 Md. 642, 648 , 655 A.2d 401 (1995); Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737-38 , 625 ⁴⁶⁵ A.2d 1005 (1993); Tennant v. Shoppers Food Warehouse, 115 Md.App. 381, 386 , 693 A.2d 370 (1997). In our review of the trial court’s decision granting a motion for summary judgment, we must undertake the same analysis as the trial court. cf. Martin v. ADM Partnership, 106 Md.App. 652, 657 , 666 A.2d 876 (1995) (construing motions for judgment), cert. granted, 341 Md. 719 , 672 A.2d 659 (1996). This requires us to resolve all factual disputes in Neal’s favor, and to construe all inferences reasonably drawn from those facts in her favor as well.

Tennant, 115 Md.App. at 387 , 693 A.2d 370 ; Bagwell, 106 Md.App. at 488 , 665 A.2d 297 . If the facts generate a jury question, then summary judgment is not warranted. Martin, 106 Md.App. at 657 , 666 A.2d 876 . In the absence of a dispute as to material fact, we must also consider whether the trial court’s decision was legally correct.

Beatty, 330 Md. at 737 , 625 A.2d 1005 ; Tennant, 115 Md.App. at 386 , 693 A.2d 370 ; Bagwell, 106 Md.App. at 488 , 665 A.2d 297 . To defeat a motion for summary judgment, the non-moving party must present admissible evidence to show the existence of a dispute of material fact. Tennant, 115 Md.App. at 386 , 693 A.2d 370 ; Bagwell, 106 Md.App. at 488 , 665 A.2d 297 ; Commercial Union Ins. Co. v. Porter Hayden, 97 Md. App. 442, 451 , 630 A.2d 261 (1993), rev’d on other grounds, 339 Md. 150 , 661 A.2d 691 (1995).

Mere formal denials or general allegations of disputed facts are insufficient to defeat a motion for summary judgment, however. Tennant, 115 Md.App. at 386-87 , 693 A.2d 370 ; Bagwell, 106 Md.App. at 488 , 665 A.2d 297 ; Seaboard Sur. Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 243 , 603 A.2d 1357 (1992). Moreover, the evidence presented by the non-moving party to defeat the motion must be sufficiently detailed and precise so as to enable the trial court to assess the materiality of the proffered facts.

Beatty, 330 Md. at 738, 625 A.2d 1005 ; Tennant, 115 Md.App. at 387 , 693 A.2d 370 ; Bagwell, 106 Md.App. at 489 , 665 A.2d 297 . Only a material fact, i.e., “a fact that will alter the outcome of the case depending upon how the factfinder resolves the dispute over it,” Bagwell, 106 Md. App, at 489, 665 A.2d 297 , will be considered for purposes of the motion. See King v. Bankerd, ⁴⁶⁶ 303 Md. 98, 111 , 492 A.2d 608 (1985); Tennant, 115 Md.App. at 387 , 693 A.2d 370 . Discussion The elements of the affirmative defense of assumption of the risk are well settled.

The defendant must show that: (1) the plaintiff had knowledge of the risk of danger; (2) the plaintiff appreciated the nature of the risk of danger; and (3) the plaintiff voluntarily encountered the risk of danger. Liscombe v. Potomac Edison Co., 303 Md. 619, 630 , 495 A.2d 838 (1985); Martin, 106 Md.App. at 657 , 666 A.2d 876 ; W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68, at 487 (5th ed.1984); see also Janelsins v. Button, 102 Md.App. 30, 41 , 648 A.2d 1039 (1994) (stating that assumption of risk involves “cognizance of a danger and volition in encountering it”). Ordinarily, it is for the jury to determine whether a plaintiff knew of the danger and appreciated the risk. Martin, 106 Md.App. at 657 , 666 A.2d 876 ; see also Keeton et al., supra, § 68, at 487. “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 [concerning knowledge and appreciation of the danger] is for the court.” Schroyer v. McNeal, 323 Md. 275, 283-84 , 592 A.2d 1119 (1991).

The parties do not dispute that appellant was aware of the risk and appreciated the danger presented by the icy sidewalk. The only element at issue concerns voluntariness in encountering the danger. The trial court reasoned that appellant “took a chance, that she in her own words ‘took my chances.’ ” Therefore, the court below concluded that Neal’s action was barred by the doctrine of assumption of risk. We see it differently.

Relying upon Martin, 106 Md.App. 652 , 666 A.2d 876 , and Rountree v. Lerner Development Co., 52 Md.App. 281 , 447 ⁴⁶⁷ A.2d 902 (1982), 1 appellant contends that she did not voluntarily negotiate the icy path. Appellant argues that “voluntariness” in assumption of the risk cases does not mean simply that appellant elected to walk on the icy sidewalk. Rather, she contends that even when an act is the product of a rational decision, it is not voluntary if the decision is prompted by a reasonable fear of adverse consequences flowing from a decision not to encounter the risk, or if the risk is encountered in order to pursue a legal right or entitlement. In this regard, Neal claims that she was not merely acting for her own convenience or benefit.

To the contrary, she argues that her actions were for the benefit of her young son, in order to obtain medical care for him. Moreover, she avers that she owed a duty to her son to provide him with health care, and had a legal entitlement to obtain medical assistance benefits for him. She also argues that her subjective beliefs, if reasonable, are relevant in regard to determining voluntariness; she avers that she reasonably believed that failure to keep her scheduled appointment would result in the closure of her case or a delay in her receipt of benefits. Moreover, she points out that there was only one entrance to the DSS office, and thus she lacked a safe, alternative route.

Therefore, in appellant’s view, she generated a jury question as to whether she voluntarily encountered a known risk when she walked across the ice-covered path. In Martin, 106 Md.App. at 656 , 666 A.2d 876 , a woman employed as a delivery person was assigned on the day in question to deliver blueprints to her employer’s client. When she arrived at the customer’s building, the employee observed that the parking lot and walkway were covered by ice and unplowed snow. The employee “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 ⁴⁶⁸ ground, and people in the building.” Id.

As the employee proceeded toward the walkway, she slipped but avoided falling by grabbing onto her truck. Martin then continued along the walkway and into the building without incident, and delivered the blueprints. As she was leaving the building, however, Martin slipped and fell on the walkway, injuring her back. At trial, she testified to her belief that she was required to complete the delivery for her