S & S Oil, Inc. v. Jackson

GREENE, J. We are asked to consider whether the trial court committed reversible error by denying Petitioner’s request to include on the special verdict sheet a question specifically addressing the assumption of the risk defense. Petitioner contends that by denying the requested question, the trial court prevented the jury from considering whether Respondent assumed the risk of her injuries and committed reversible error. We hold that under the facts of this case: (1) the intermediate appellate court was incorrect in concluding that assumption of the risk and contributory negligence were “substantially the same question;” (2) the verdict sheet, as written, would cause confusion over which defenses to consider and mislead a reasonable juror to fail to consider the defense of assumption of the risk; (3) failing to adequately present assumption of the risk constituted error because Petitioner had a right to present the defense to the jury; and (4) that error prejudiced Petitioner’s case. Facts and Procedural History On June 21, 2007, Elaine W. Jackson (“Respondent”) entered a gas station owned and operated by S & S Oil, Inc. (“Petitioner”).

The gas station, located at 9105 Annapolis Road, Lanham, Maryland, was in the process of being renovated. The process included renovating the flooring near the soda machine in the store portion of the building. Around five-o’clock in the evening, Respondent and her granddaughter drove to the station in order to buy motor oil. Respondent parked her vehicle, walked to the back aisle of the station store, picked up two quarts of oil, paid for them at the register, and exited.

When Respondent returned to her car, her granddaughter asked for a soda. Respondent agreed to buy one for her, and walked back into the building to locate the soda machine. When Respondent saw the machine, she walked toward it. During her walk, Respondent mis-stepped onto uneven ⁶²⁶ ground.

She did not fall, but she testified that her “foot twisted [her] knee” resulting in injury to her right knee and lower back. Respondent made several visits to doctors and had outpatient surgery on her right knee. In 2008, Respondent filed a negligence suit against Petitioner in the Circuit Court for Prince George’s County. During the trial, Respondent testified that she was not looking at the floor during her walk to the soda machine as she had just been inside the station store and therefore “trusted [her] environment.” She stated that after her injury she could see that the area was un-level, “sloped,” and “lumpy.” There was evidence, however, in the form of testimony from the station owner, that there was orange or red caution tape across part of the construction area and a “Watch Your Step” sign somewhere in the immediate vicinity of Respondent’s injuries.

Respondent testified that she did not see the caution tape, the warning sign, or any dangerous condition, and that she had assumed that the floor surface was level. At the close of the three-day trial, the trial judge required the jury to return its verdict by answering a series of questions on a special verdict sheet. Additionally, the trial judge provided the jury -with a series of oral instructions. Earlier, Petitioner had requested that the trial judge instruct the jury on assumption of the risk pursuant to Maryland Pattern Jury Instruction 19:13.

Respondent’s counsel objected to the instructions, asserting that there was no evidence that Respondent had assumed the risk of her injury. The trial judge overruled the objection and noted that, “that’s going to be the issue [for the jury].” At the close of the trial, the judge gave oral instructions to the jury as to the doctrine, stating specifically: A plaintiff cannot recover if the plaintiff has assumed the risk of her injury, I guess. A person assumes the risk of an injury if that person knows and understands the risk of an existing danger, or reasonably should have known and understood the risk of an existing danger and voluntarily ⁶²⁷ chooses to encounter the risk. 1 Originally, the trial judge had considered using a special verdict sheet that included the following questions: 1. Was Defendant S & S Oil, Inc. negligent with regard to the incident of June, 21, 2007? 2.

Was Defendant’s negligence a cause of injury to Plaintiff Elaine Jackson? 3. Did Plaintiff Elaine Jackson assume the risk of her injury, or was she contributorily negligent, in the incident of June [21], 2007? 4. Was Plaintiffs negligence or contributory negligence a cause of her injury? After reviewing the contemplated verdict sheet, Petitioner objected to question three as proposed, arguing that the question should be separated into two questions, one for each affirmative defense.

The trial judge responded by striking the reference to assumption of the risk altogether, reasoning that: [Assumption of risk is a form of negligence ... [Assumption of [the] risk is part of contrib[utory negligence] or negligence. So it’s covered and it — in other words, assump ⁶²⁸ tion of the risk is negligence on the part of the Plaintiff____ [I]f the question says negligent or contributorily negligent, it covers assumption of risk and contrib[utory negligence]. Thus, the third question placed on the verdict sheet read: “Was Plaintiff Elaine Jackson negligent or contributorily negligent, in the incident of June [21], 2007?” 2 Petitioner noted an objection to the question and an exception to the wording of the verdict sheet. The trial judge attempted to connect her oral instructions to the particular questions on the verdict sheet, stating that “the instructions that I’ve given you about premises liability, negligence, foreseeable circumstances, contributory negligence, and assumption of [the] risk, are the instructions that go into the first and third questions.” The jury returned a verdict in favor of Respondent, finding that Petitioner was negligent and that its negligence caused Respondent’s injuries.

As to question three, the jury found that Respondent was not “negligent or contributorily negligent” under the circumstances. The jury awarded Respondent $12,416.41 for past medical expenses and $131,000.00 in non-economic damages, for a total award of $143,416.41. The trial court entered judgment in favor of Respondent. Following unsuccessful post-trial motions, Petitioner appealed the judgment to the Court of Special Appeals.

Petitioner argued that the trial judge committed error in both admitting evidence of certain medical bills 3 and in not presenting the defenses of assumption of the risk and contributory negligence on the verdict sheet as separate questions. The intermediate appellate court issued an unreported opinion affirming the trial court’s judgment, holding that there was no error by the trial judge as to either claim. In affirming the trial judge’s refusal to include a question about assumption of the risk on the verdict sheet, the Court of Special Appeals concluded that ⁶²⁹ “[i]f the jury determined that [Respondent] assumed the risk of her injury, it would necessarily find that she was contributorily negligent.” The intermediate appellate court, therefore, determined that the two issues were “the same substantial question” and it was proper to ask only about contributory negligence on the verdict sheet. The Court of Special Appeals, however, did not consider that a plaintiff might assume the risk of danger, but that risk might be reasonable, and therefore, not necessarily contributorily negligent.

We issued a writ of certiorari in this case, 424 Md. 628 , 37 A.3d 317 , to address the following question: Whether a trial court may instruct a jury on the separate and distinct affirmative defenses of contributory negligence and assumption of the risk, yet only include a specific question on the verdict sheet as to contributory negligence, thus taking assumption of the risk away from the province of the jury and finding as a matter of law that assumption of the risk is included in the contributory negligence defense. Standard of Review We review the trial judge’s decisions with respect to the jury instructions given in this case under the abuse of discretion standard. We have previously held that “the decision to use a particular verdict sheet ‘will not be reversed absent abuse of discretion.’ ” Consol. Waste Indus. v. Standard Equip.

Co., 421 Md. 210, 220 , 26 A.3d 352, 358 (2011) (quoting Applied Indus. Techs. v. Ludemann, 148 Md.App. 272, 287 , 811 A.2d 845, 854 (2002)). Under the abuse of discretion standard, this Court will overturn a trial judge’s decision to use a particular verdict sheet if we find both that the trial judge committed an error and that the error prejudiced Petitioner’s case. See Consol.

Waste Indus., 421 Md. at 220 , 26 A.3d at 358 (citing Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500, 526 , 682 A.2d 1143, 1155 (1996)) (holding that “Maryland appellate courts generally will not reverse even an unreasonable decision [with regards to the use of a particular verdict sheet] without ⁶³⁰ evidence of prejudice/harm”); See also Fry v. Carter, 375 Md. 341, 355, 825 A.2d 1042, 1050 (2003) (citation omitted) (determining that a trial court’s “judgment [regarding jury instructions] will not be reversed unless the complaining party can show both error and prejudice”). Analysis The trial judge committed reversible error in this case by preventing the jury from considering the defense of assumption of the risk. The Court of Special Appeals erred when it upheld the trial court’s judgment based on an incorrect determination that the defenses of contributory negligence and assumption of the risk presented the “same substantial question.” In this case, Petitioner requested a jury instruction directing the jury to consider assumption of the risk. As requested, the trial judge gave an oral instruction on the defense.

The trial judge, however, refused Petitioner’s request to put a specific question on the verdict sheet specifically asking the jurors to consider assumption of the risk. The trial judge refused Petitioner’s request because the judge determined that assumption of the risk was included in the contributory negligence defense. It was error for the Court of Special Appeals to conclude that the issues of contributory negligence and assumption of the risk overlapped and that it was proper to ask only about contributory negligence. The task before this Court is two-fold.

First, we will address the Court of Special Appeals’s and the trial judge’s incorrect conclusion that, in this case, assumption of the risk was the same as or was included in the defense of contributory negligence. Then, we will discuss how the effect of this incorrect conclusion prejudiced Petitioner. A. Assumption of the risk is distinct from contributory negligence. The Maryland Rules of Civil Procedure indicate that the trial court “need not grant a requested [jury] instruction if the matter is fairly covered by the instructions actually given.” Md. Rule 2-520(c).

We have previously stated: ⁶³¹ In framing issues to be submitted for determination by a court of law, sitting either with or without a jury, the objective is to draft issues that are simple, concise and couched in plain and easily understood terms. It is also desirable that tedious duplicity be avoided by eliminating overlapping issues ... In our opinion, the correct rule to be observed, and the one which will best subserve the purpose of justice, is to grant no more than one issue presenting the same substantial question, and secondly, not to multiply the issues unnecessarily, and to grant such only as distinctly present the real questions in dispute. Kruszewski v. Holz, 265 Md. 434, 446 , 290 A.2d 534, 541 (1972) (internal quotations and citations omitted).

The intermediate appellate court concluded that, under the facts of this case, both contributory negligence and assumption of the risk would be adequately addressed in one question asking the jury to consider contributory negligence. Essentially, the appellate court determined that the trial judge was correct in deciding, as a matter of law, that under the facts of this case, the two defenses completely overlapped and were “the same substantial question.” Therefore, the Court of Special Appeals concluded that the trial judge did not commit error in refusing to present a separate question about assumption of the risk. Assumption of the risk and contributory negligence are separate and distinct defenses. See Poole, 423 Md. at 111, 31 A.3d at 224 (holding that the doctrines of contributory negligence and assumption of the risk are “in fact, distinct”); Schroyer v. McNeal, 323 Md. 275, 281 , 592 A.2d 1119, 1122 (1991) (“There is, however, a distinction, and an important one, between the defenses of assumption of the risk and contributory negligence.”).

A trial judge can combine the two defenses into one question about contributory negligence when all reasonable jurors would conclude that the risk assumed is unreasonable and, therefore, the act of assuming the risk is necessarily negligent. The present case was not one of those situations. ⁶³² Our cases have shown that the two defenses completely overlap and should be presented as one defense when the risk allegedly assumed is unreasonable: As noted previously by this Court, assumption of the risk and contributory negligence are closely related and often overlapping defenses and, the same conduct of a plaintiff can amount to both assumption of the risk and contributory negligence. Indeed, the overlap between assumption of the risk and contributory negligence is a complete one where the plaintiffs conduct in voluntarily encountering a known risk is itself unreasonable. When the overlap occurs, a discussion of contributory negligence may necessarily include assumption of the risk and the bar to recovery is two-pronged: 1) because the plaintiff assumed the risk of injury and 2) because the plaintiff was contributorily negligent.

Conversely, the facts may warrant conflicting results under the theories, for example, 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. Thomas, 423 Md. at 418-19, 31 A.3d at 602-603 (internal citations, quotations, and emphasis omitted); See also Schroyer, 323 Md. at 284 n. 5, 592 A.2d at 1123 -24 n. 5 (citing Restatement (Second) of Torts § 496A cmt. c, at 561-62 (1965)) (noting that “when the plaintiffs undertaking of a known risk is itself unreasonable” it constitutes contributory negligence). 4 A risk is an unreasonable risk where the risk of ⁶³³ danger is out of proportion to the interest a plaintiff is seeking in assuming the risk, such as when a plaintiff “dashes into a burning building to save his hat.” Schroyer, 323 Md. at 280-81 , 592 A.2d at 1122 (quoting Restatement (Second) of Torts § 496A cmt. d, at 562). Whether an action is negligent or a risk is unreasonable is generally a decision for the trier of fact. The trial court should rule that a risk is unreasonable as a matter of law only when reasonable jurors would not differ as to that conclusion.

See Sanner v. Guard, 236 Md. 271, 274 , 203 A.2d 885, 887 (1964) (“It is fundamental that the issue as to the existence vel non of negligence, whether primary or contributory, should ordinarily be left for determination by the jury. Each case must be judged on its own facts, and the court should rule as a matter of law that there is no contributory negligence only where the circumstances are such that reasonable minds could not reach differing conclusions on the issue.”); McSlarrow v. Walker, 56 Md.App. 151, 161 , 467 A.2d 196, 200 (1983) (citation omitted) (“Contributory negligence as a matter of law requires a finding that the negligent act of the plaintiff ... relied upon must be prominent, decisive and one about which ordinary minds would not differ in declaring it to be negligence.”). The danger Respondent allegedly assumed walking in an area where there were renovations being done is not an extreme danger akin to entering a burning building. While it is unreasonable to conclude that the minor interest of saving one’s hat is in proportion with the danger of serious injury assumed from going into a burning building, reasonable minds ⁶³⁴ might conclude that walking where there are renovations on the floor is not out of proportion with Respondent’s interest in obtaining a soda for her granddaughter.

Therefore, the risk Respondent allegedly assumed in this case was not unreasonable as a matter of law, and the jury might have determined that Respondent assumed the risk without necessarily finding that Respondent was contributorily negligent. Because determining that Respondent assumed the risk of her injuries did not necessarily require the jury to find that Respondent was contributorily negligent, the jury’s verdict in this case, that Respondent was not contributorily negligent, left open the possibility that the jury might have still determined that Respondent assumed the risk of her injuries. Combining the two defenses under one question improperly took that opportunity away from the jury. See Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500, 525-26 , 682 A.2d 1143, 1155 (1996) (reasoning that it was proper to combine two issues if it is not confusing to the jury and does not prevent the jury from answering the applicability of the defenses with specificity); Randall v. Warnaco Inc., 677 F.2d 1226, 1231-32 (8th Cir.1982) (finding that, because the jury might have determined that the defendant was liable for negligence without determining that the plaintiff was also liable under a strict liability theory, it was an error to ask only about strict liability and not negligence).

B. Based on the incorrect conclusion that assumption of the risk is “part of contributory negligence,” the trial court misled the jury and took the determination of whether Respondent assumed the risk of her injuries away from the jurors. This Court is not persuaded that the jury in this case was given an opportunity to consider the defense of assumption of the risk. Reviewing courts are “strictly limit[ed]” in the “ability to inquire, post-verdict, into ‘the sworn juror’s mental processes in connection with the verdict.’ ” Barksdale v. Wilkowsky, 419 Md. 649, 665 , 20 A.3d 765, 774 (2011) (citation omitted). It was reasonable, however, in light of the ⁶³⁵ verdict sheet not explicitly including a question about assumption of the risk, for the jurors to not consider whether Respondent assumed the risk of her injuries.

Therefore, we will treat the decision to deny a request for a question on the verdict sheet about assumption of the risk as removing the issue from the consideration of the jury. Effectively withdrawing assumption of the risk from the jury after giving oral instructions that the jury should consider the defense would reasonably mislead and confuse the jury over whether to consider assumption of the risk. Maryland Rule 2-522(c), which governs the use of special verdicts, indicates that when a trial court requires a jury to make written findings, “[t]he court shall instruct the jury as may be necessary to enable it to make its findings upon each issue.” Petitioner sought to present both the affirmative defenses of assumption of the risk and contributory negligence. The trial judge gave separate oral instructions directing the jurors that Petitioner should not be held liable if Respondent was contributorily negligent and Petitioner should not be held liable if Respondent assumed the risk of her injuries.

Nevertheless, when the trial judge altered the verdict sheet and removed any explicit reference to assumption of the risk, the trial court nullified the effect of the separate oral instructions and created confusion. The verdict sheet that was proposed initially asked the jurors to determine whether Respondent “assume[d] the risk of her injury, or was she contributorily negligent, in the incident of June [21], 2007?” When the trial judge changed the language to ask only whether Respondent was negligent or contributorily negligent, Petitioner requested that there be a separate question that specifically addressed whether plaintiff assumed the risk of her injuries. The trial judge denied the request reasoning that assumption of the risk was part of contributory negligence or negligence and “if the question says negligent or contributorily negligent, it covers assumption of risk and contributory negligence].” As noted above, under the facts of this case, the jury should have considered the two defenses separately. Based on this incorrect determi ⁶³⁶ nation that it was proper to consolidate the two defenses, the trial judge denied Petitioner’s request and the only question on the verdict sheet instructing the jury to consider an affirmative defense read, “Was Plaintiff Elaine Jackson negligent or contributorily negligent, in the incident of June [21], 2007.” When the trial judge gave oral instructions to the jury on how to reach a verdict, she instructed the jury, “[i]n this case, it will be your duty to return your verdict in the form of written answers to the written questions, which are submitted to you by the [trial court].

It is your duty to answer each of these questions in accordance with the evidence in the case.” Essentially, the trial judge instructed the jurors to reach a verdict by considering four questions that addressed: (1) whether Petitioner was negligent; (2) whether Petitioner’s negligence caused Respondent’s injuries; (3) whether Respondent was contributorily negligent; and (4) whether Respondent’s contributory negligence caused her own injuries. Additionally, the trial judge gave oral instructions directing the jurors that “you each have a copy of the verdict sheet which is for your use during deliberations. You do not have to write on it. If you wish to, you may.

It’s just for your use during your deliberations.” The jurors were instructed that when they were deliberating on the facts of the case, they should use the verdict sheet as a guide. The verdict sheet made no mention of assumption of the risk. We presume that the jurors followed the trial judge’s directions in this regard. Thus, the jurors, with the verdict sheet in front of them as a guide, were instructed to reach a verdict by submitting written answers to written questions, none of which mentioned assumption of the risk.

There is a suggestion that, despite the trial judge’s decision to refuse to put a question on the verdict sheet that asked specifically about assumption of the risk, a particular juror might have considered the defense nevertheless. It is possible that a juror might have remembered the trial judge’s oral instructions that “[a] plaintiff cannot recover if the plain ⁶³⁷ tiff has assumed the risk of her injury....” Additionally, in approving the trial judge’s decision, the Court of Special Appeals implied that by giving a further instruction the trial judge cured any inability of the jury to consider the assumption of the risk defense. The further instruction was that the trial judge informed the jury that “the instructions I’ve given you about premises liability, negligence, foreseeable circumstances, contributory negligence, and assumption of the risk, are the instructions that go into the first and third questions [on the verdict sheet].” The third question on the verdict sheet was about contributory negligence. It is possible that if a particular juror remembered all five issues that the judge instructed him or her to consider when deliberating on contributory negligence, that juror might have considered assumption of the risk.

We are not persuaded, however, that this instruction was effective to cure the trial judge’s failure to provide the jury with an opportunity to specifically address assumption of the risk. Premises liability, negligence, foreseeable circumstances, and contributory negligence are all aspects of contributory negligence. Assumption of the risk is a distinct defense. Grouping it in with issues that all are aspects of contributory negligence in a question that only asks about contributory negligence undermines a reasonable juror’s ability to properly consider assumption of the risk on its own merits.

In the very least, it would cause confusion in the mind of a reasonable juror whether to consider the defense of assumption of the risk. A jury instruction is improper if it will confuse or mislead a jury. See Hambleton & Co. v. Union Nat. Bank, 161 Md. 318, 327 , 157 A. 404, 408 (1931) (finding that a court has a “duty” to “reject all instructions which ... are likely to confuse or mislead the jury”); See also Denson v. State, 331 Md. 324, 330-331 , 628 A.2d 182, 185 (1993) (noting that “when a trial court does instruct the jury ... the court must be careful not to mislead or confuse the jury”).

Giving oral instructions directing the jurors to consider both defenses and then providing an opportunity to address only contributory negligence on the verdict sheet would both confuse and mis ⁶³⁸ lead a reasonable juror over whether to consider assumption of the risk. Therefore, the trial judge committed error in that regard. First, the oral instructions themselves likely created confusion over which defenses to consider. The trial judge issued oral instructions that presented assumption of the risk and contributory negligence as two distinct defenses, and then moments later incorrectly instructed the jurors that assumption of the risk “go[es] into” the determination of contributory negligence.

This would confuse a reasonable juror as to whether the juror should consider separately the defense of assumption of the risk. This confusion was compounded by the jury being instructed to consider assumption of the risk and then being instructed to reach a verdict by answering questions on a verdict sheet that did not give the jurors an opportunity to explicitly rule on the defense. Second, even if the jury instructions did not cause confusion in the minds of the jurors, the trial judge’s decision to refuse to include a question specifically addressing assumption of the risk would cause a reasonable juror to fail to consider the defense. Instructing the jury to reach a verdict by answering a series of questions, none of which addressed assumption of the risk, would divert a reasonable juror’s attention away from considering that defense. 5 This constitutes an error because, ⁶³⁹ as indicated below, the defense should have been presented to the jury.

Our opinion in Collins v. Amtrak, 417 Md. 217 , 9 A.3d 56 (2010) demonstrates this point. In Collins , the widow of an Amtrak employee brought a lawsuit, pursuant to the Federal Employers’ Liability Act (“FELA”), against Amtrak alleging that Amtrak’s negligence caused the death of her husband. The deceased worker was electrocuted while taking alignment readings of an overhead electrical wire on a span of railroad. The FELA expressly bars the use of an assumption of the risk defense, but not contributory negligence. 6 At trial, the plaintiff requested a jury instruction explaining to the jury that Amtrak could not use an assumption of the risk defense to defend against a negligence claim.

The trial judge denied this proposed instruction and the jury returned a verdict in favor of Amtrak. After the Court of Special Appeals affirmed the judgment, we reversed. We noted that “a notable portion of the evidence presented by Amtrak addressed elements relevant to the defense of assumption of risk and not necessarily relevant to contributory negligence.” 417 Md. at 227 , 9 A.3d at 62 . Although we could not be exactly sure if the jury actually considered assumption of the risk, this Court held that because the jury may have inappropriately considered the defense when it rendered judgment for the defendant, the trial judge committed error in not giving the requested jury instruction. 417 Md. at 256 , 9 A.3d at 79 .

Similarly, in the present case, because the verdict sheet instructed the jury to consider only contributory negligence, this Court cannot be certain that the jury addressed whether Respondent assumed the risk of her injuries. ⁶⁴⁰ C. It was an error to take consideration of assumption of the risk away from the jury. Where a jury instruction would cause a reasonable juror to fail to consider a defense that should