Schroyer v. McNeal

ROBERT M. BELL, Judge. The genesis of this case was a slip and fall accident which occurred on the parking lot of the Grantsville Holiday Inn in Garrett County, Maryland. Frances C. McNeal (McNeal), ²⁷⁷ the respondent, sustained a broken ankle in the accident and, as a result, sued Thomas Edward Schroyer and his wife, Patricia A. Schroyer 1 (the Schroyers), the petitioners, in the Circuit Court for Garrett County, alleging both that they negligently maintained the parking lot and negligently failed to warn her of its condition. The jury having returned a verdict in favor of McNeal for $50,000.00 and their motion for judgment notwithstanding the verdict or for new trial having been denied, the Schroyers appealed to the Court of Special Appeals, which affirmed.

Schroyer v. McNeal, 84 Md.App. 649 , 581 A.2d 472 (1990). In its opinion, the intermediate appellate court directly addressed the Schroyers’s primary negligence and McNeal’s contributory negligence; however, although it was properly presented, that court did not specifically address whether McNeal had assumed the risk of her injury. 2 We issued the writ of certiorari at the request of the Schroyers and now reverse. We hold that, as a matter of law, McNeal assumed the risk of the injury. We need not and, therefore, ²⁷⁸ do not, reach the other issues presented. 3 The events surrounding McNeal’s accident and her subsequent complaint against the Schroyers are largely not in dispute.

McNeal arrived at the Grantsville Holiday Inn at approximately 5:30 p.m. on January 9, 1985. At that time, although approximately four inches of sleet and ice had accumulated, she obsérved that the area in front of, and surrounding, the main lobby area, where hotel guests registered, had been shoveled and, thus, was reasonably clear of ice and snow. She also noticed, however, that the rest of the parking lot had neither been shoveled nor otherwise cleared of the ice and snow. McNeal parked her car in front of the hotel while she registered.

While registering, she requested a room closest to an exit due to her need to “cart” boxes and paperwork back and forth to her room. She was assigned a room close to the west side entrance, which was at the far end of the hall, away from the lobby. This was done notwithstanding the hotel’s policy of not assigning such rooms during inclement weather. Also, contrary to policy, McNeal was not advised that she should not use the west entrance and, of course, no warnings to that effect were posted near that entrance.

Having registered, McNeal drove her car from the main entrance to within ten to fifteen feet of the west side entrance. She parked on packed ice and snow. Moreover, as she got out of her car, she noticed that the sidewalk near ²⁷⁹ the entrance had not been shoveled and, furthermore, that the area was slippery. Nevertheless, she removed her cat from the car and crossed the ice and snow carefully, and without mishap.

On the return trip to her car to retrieve the remainder of her belongings, she slipped and fell, sustaining the injury previously described. Concerning her knowledge of the parking lot’s condition, McNeal testified that, in the immediate vicinity of where she parked her car, the “packed ice and snow” was slippery and that, as a result, she entered the building “carefully.” She denied, however, that it was unreasonable for her, under the circumstances, to try to traverse the parking lot; she “didn’t think it was that slippery. I didn’t slip the first time in.” The Schroyers moved for judgment, both at the end of McNeal’s case in chief and at the conclusion of all the evidence. That McNeal had assumed the risk of her injury was one of the grounds advanced in support of those motions.

Both motions were denied. The jury having returned its verdict in favor of McNeal, the Schroyers filed a motion for judgment notwithstanding the verdict or a new trial. As in the case of the motions for judgment, they argued, inter alia, that respondent was barred from recovery by the doctrine of assumption of the risk. The trial court denied that motion.

As indicated earlier, the Court of Special Appeals did not directly address whether McNeal assumed the risk of injury. Although it recognized that she “knew of the dangerous condition” and, presumably, acted voluntarily when she started to cross the ice and snow covered parking lot and sidewalk, the court perceived the question to be “whether she acted reasonably under the circumstances.” 84 Md. App. at 657 , 581 A.2d at 476 . It concluded that whether McNeal was contributorily negligent, i.e., acted reasonably in light of the known risk, was a question appropriately left to the jury for decision. 84 Md.App. at 658 , 581 A.2d at 476 . ²⁸⁰ Assumption of the risk and contributory negligence are closely related and often overlapping defenses. Sacks v. Pleasant, 253 Md. 40, 46 , 251 A.2d 858, 862-63 (1969); Honolulu Ltd. v. Cain, 244 Md. 590, 599-600 , 224 A.2d 433, 438 (1966); Burke v. Williams, 244 Md. 154, 157 , 223 A.2d 187, 189 (1966); Baltimore County v. State, Use of Keenan, 232 Md. 350, 359 , 193 A.2d 30, 35-36 (1962); McManamon v. High’s Dairy Corp., 230 Md. 370, 372 , 187 A.2d 318, 319 (1963); Evans v. Johns Hopkins Univ., 224 Md. 234, 239 , 167 A.2d 591, 594 (1961); Warner v. Markoe, 171 Md. 351, 359 , 189 A. 260, 264 (1937); Casper v. Chas F. Smith & Son, 71 Md.App. 445, 472 , 526 A.2d 87, 99-100 (1987); Restatement (Second) of Torts § 496A, comments c 4 and d (1965); W. Page Keeton, Prosser and Keeton on the Law of Torts § 68 at 481-82 (5th ed. 1984) [hereinafter Prosser and Keeton ].

They may arise from the same facts and, in a given case, a decision as to one may necessarily include the other. Keenan, 232 Md. at 361 , 193 A.2d at 37 . See Bull Steamship Lines v. Fisher, 196 Md. 519 , 77 A.2d 142 (1950), in which an instruction was upheld which did not use the term “assumption of the risk,” an issue clearly generated, but which discussed the liability issue in such a way as to enable the jury, in the context of contributory negligence, to decide whether the plaintiff assumed the risk. See also Velte v. Nichols, 211 Md. 353, 356-57 , 127 A.2d 544, 546 (1956) (mounting ladder without checking its stability estops the plaintiff, who was injured when the ladder slipped on ice, to recover, either because he assumed the risk or was contributorily negligent); Warner, 171 Md. at 359 , 189 A. at 263 (evidence of plaintiffs prior experience with driver and of his silence concerning the driver’s high rate of speed was sufficient to generate a jury question as to both assumption of the risk and contributory negligence); Evans, 224 Md. at 238 , 167 A.2d at 593 (performing experiment in a laboratory the plaintiff knew to be unsafe constituted assumption of the risk, as well as contributory negligence).

The relationship between the defenses has also been addressed in the Restatement (Second) of Torts: ²⁸¹ The same conduct on the part of the plaintiff may ... amount to both assumption of risk and contributory negligence, and may subject him to both defenses. His conduct in accepting the risk may be unreasonable and thus negligent, because the danger is out of all proportion to the interest he is seeking to advance, as where he consents to ride with a drunken driver in an unlighted car on a dark night, or dashes into a burning building to save his hat. Likewise, even after accepting an entirely reasonable risk, he may fail to exercise reasonable care for his own protection against that risk. § 496A, comment d, at 562. 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____” § 496A, comment c 4.

When that occurs, the bar to recovery is two-pronged: 1) because the plaintiff assumed the risk of injury and 2) because the plaintiff was contributorily negligent. There is, however, a distinction, and an important one, between the defenses of assumption of the risk and contributory negligence. That distinction was stated in Warner, supra, thusly: The distinction between contributory negligence and voluntary assumption of the risk is often difficult to draw in concrete cases, and under the law of this state usually without importance, but it may be well to keep it in mind. Contributory negligence, of course, means negligence which contributes to cause a particular accident which occurs, while assumption of risk of accident means voluntary incurring that of an accident which may not occur, and which the person assuming the risk may be careful to avoid after starting.

Contributory negligence defeats recovery because it is a proximate cause of the accident which happens, but assumption of the risk defeats recovery because it is a previous abandonment of the right to complain if an accident occurs. 171 Md. at 359-60 , 189 A. at 264 . The distinction is no less clearly made by reference to the rationale underlying the ²⁸² doctrine of assumption of the risk. We explicated that rationale in Gibson v. Beaver, 245 Md. 418, 421 , 226 A.2d 273, 275 (1967) (quoting W. Prosser, Handbook of the Law of Torts § 55 at 303 (2nd ed. 1955)): “The defense of assumption of risk rests upon the plaintiffs consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of harm from a particular risk. Such consent may be found: * * * by implication from the conduct of the parties.

When the plaintiff enters voluntarily into a relation or situation involving obvious danger, he may be taken to assume the risk, and to relieve the defendant of responsibility. Such implied assumption of risk requires knowledge and appreciation of the risk, and a voluntary choice to encounter it.” See also Restatement (Second) of Torts § 496A, comment d, at 562 and § 496C, at 569-574. 4 Assumption of the risk, then, “implies an intentional exposure to a known danger which may or may not be true of contributory negligence.” Burke v. Williams, 244 Md. at 157, 223 A.2d at 189 . Whether they overlap or not, the critical distinction between contributory negligence and assumption of the risk is that, in the latter, by virtue of the plaintiffs voluntary actions, any duty the defendant owed the plaintiff to act reasonably for the plaintiffs safety is superseded by the plaintiffs willingness to take a chance. Consequently, unlike the case of contributory negligence, to establish assumption of the risk, negligence is not an issue—proof of ²⁸³ negligence is not required.

The plaintiff need only be aware of the risk, which he or she then voluntarily undertakes. Restatement (Second) of Torts, § 496A, comment d, at 562; Prosser and Keeton § 68 at 485-86; Keenan, 232 Md. at 360 , 193 A.2d at 36 ; Bull Steamship Lines v. Fisher, 196 Md. at 524-25 , 77 A.2d at 146 . It is, in short, the willingness of the plaintiff to take an informed chance that distinguishes assumption of the risk from contributory negligence. Thus, just as the facts of a given case may warrant the same result on either theory, the facts in another may warrant conflicting results.

In other words, “either may constitute a defense, with or without the other.” Evans, 224 Md. at 239 , 167 A.2d at 594 . 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. See Pinehurst Co. v. Phelps, 163 Md. 68, 72 , 160 A. 736, 737 (1932) (“A risk, while obvious, may not be so imminently dangerous that a prudent man would necessarily avoid it, yet if it shall be freely encountered it will in general be held to be so far assumed that no recovery for consequent injury is possible.”). That plaintiff may be barred from recovery on the ground of assumption of the risk, while he or she would recover were the defense theory contributory negligence.

The test of whether the plaintiff knows of, and appreciates, the risk involved in a particular situation is an objective one, Gibson v. Beaver, 245 Md. at 421 , 226 A.2d at 275 , and ordinarily is a question to be resolved by the jury. Id.; Kahlenberg v. Goldstein, 290 Md. 477, 494-95 , 431 A.2d 76, 86 (1981). Thus, “the doctrine of assumption of risk will not be applied unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff.” (Emphasis in original) Kasten Constr. Co. v. Evans, 260 Md. 536, 544 , 273 A.2d 90, 94 (1971).

On the other hand, when it is clear that a person of normal intelligence in the position of the plaintiff must have understood ²⁸⁴ the danger, the issue is for the court. Gibson v. Beaver, 245 Md. at 421 , 226 A.2d at 275 (quoting W. Prosser, Handbook of the Law of Torts § 55 at 310 (2nd ed.)). See also Evans v. Johns Hopkins Univ., 224 Md. 234 , 167 A.2d 591 (1961). In Gibson , the obvious danger identified was “the possible physical effects on a man [of the plaintiffs] age of the effort to lift ... or drag [a heavy fuel hose] through the snow.” 245 Md. at 422 , 226 A.2d at