Tate v. Board of Education

SHARER, Judge. The question presented in this appeal, one of first impression, is whether the voluntariness component of the defense of assumption of the risk in a civil action is negated as a matter of law because the victim’s consent is not a defense to the criminal offense of statutory rape. 1 Appellant, Tanika Tate, seeks review of a motion for judgment entered against her in the Circuit Court for Prince George’s County. Appellant sued the Board of Education of Prince George’s County after she was sexually assaulted by a family member with whom she left her high school, before the usual dismissal time, without permission. Appellant has presented for our review three questions, which we have re-cast as one for simplicity: 2 ⁵³⁹ Did the circuit court err by granting appellee’s motion for judgment on the basis that appellant assumed the risk of her injuries as a matter of law?

Although a victim’s age at the time of the sexual assault prevented her attacker from asserting consent as a defense to criminal charges, we hold that the victim was competent to consent for civil litigation purposes, and thus could be determined to have assumed the risk of her injuries. We shall affirm the judgment of the trial court. FACTS and PROCEDURAL HISTORY We note that “[bjecause we are reviewing the trial court’s decision to grant the appellees’ motion for judgment at the close of the appellant’s case, we shall recite the facts as adduced at trial in the light most favorable to the appellant.” Nelson v. Carroll, 355 Md. 593, 600 , 735 A.2d 1096 (1999) (citing Md. Rule 2 — 519(b)); Blood v. Hamami P’ship, 143 Md.App. 375, 379 , 795 A.2d 135 (2002). In November 1999, appellant was fifteen years of age and a 10th grade student at Suitland High School, a public high school under the management and direction of appellee, the Prince George’s County Board of Education.

During the Thanksgiving school holiday, her uncle-in-law, Kevin Shields, made sexual advances toward Tanika, including lifting her shirt and skirt. On the Monday after the holiday, Shields telephoned Tanika before she left home for school and informed her that “he was going to get me from school.... [SJo he could take me to his house and have sex with me.” On that same day, after her lunch period, Tanika was called from her math class to the high school’s main office. When she arrived in the office, she was informed by a member of the office staff that Shields “was there to get a key from me.” Shields apparently had sought permission to take Tanika from her class, which was denied by Kisha Garner, a secretary ⁵⁴⁰ working in the main office. Ms. Garner testified that she informed Shields she would not allow Tanika to leave school property with him without parental permission, but that she would call her from class so that she could give him the key. 3 After Tanika and Shields exchanged keys, Ms. Garner testified, they left the main office and she followed them to the main lobby.

She watched Tanika and Shields until Tanika left the lobby and walked in the direction of her classroom, and Shields left the building. Ms. Garner and Tanika both testified that neither Tanika nor Shields informed anyone of their intentions to leave the school building together. It is unclear from the record whether Tanika and Shields left the building by the same exit, or by separate exits. The record does reveal that there was a guard booth located at the main entrance to the school, but that it was not manned at the time.

Tanika testified that after she left the school grounds with Shields, they traveled together to his home in Upper Marlboro. While at his home, Shields directed Tanika to remove her clothes. Upon her refusal, Shields removed them. She testified that Shields then engaged in several sexual acts with her, including intercourse, despite her protests.

After the events at Shields’ house, he returned Tanika to school just ten minutes before dismissal time. Three months after the incident, Tanika told family members about what had occurred. As a result, Shields was charged with three sexual offenses stemming from the incident. He was convicted and sentenced to two years in prison. 4 The Board of Education’s Dismissal Policy It was Tanika’s theory at trial that agents and employees of the Board were negligent in permitting her to be taken from school by Shields, contrary to established Board policy.

Thus, ⁵⁴¹ the emphasis at trial concerned the school’s early dismissal policy and the procedures relating to the release of students to family members before the school day ends. Tanika acknowledged that students were expected to remain at school for the entire day, unless they had permission from the school staff or their parents to leave early. She also knew that if a student needed to leave early, a parent or other authorized adult was required to sign the student out. In fact, Tanika’s mother had taken her from school early on several occasions before the Monday after Thanksgiving in 1999.

Tanika knew that leaving school as she did was without permission, and contrary to regulations. The Present Case On December 18, 2001, Tanika’s mother, Darlene Gray, filed a two-count complaint on her own, and her minor daughter’s, behalf, alleging negligence by the Board of Education. When Tanika reached the age of majority, she filed an amended complaint to bring her claims in her own right. In May 2002, the Board of Education filed a third-party complaint against Shields for indemnification and contribution.

Shields did not answer, and a default judgment was entered against him on August 16, 2002. On March 4 and 5, 2003, a jury trial was held in the Circuit Court for Prince George’s County. At the close of appellant’s case, the court dismissed Darlene Gray’s claim. At the conclusion of all the evidence, the court granted the Board’s motion for judgment as to the remaining count.

In so doing, the court ruled: All right. The case that neither side cited to me, but the court found on its own, I find to be particularly controlling here, the case Casper v. Charles F. Smith and Sons Company, which is at 71 Md. [App.] at 445[ 526 A.2d 87 ] Court of Special Appeals opinion from 1987. It arose from an incident in which a 7- and an 8-year old girls were severely and permanently injured when they fell into a stream located in Baltimore City and were submerged in icy water. As a ⁵⁴² result, both children were profoundly brain-damaged and suffered from, among other things, spastic quadriplegic.

And in that case, the court deals with a number of issues, but one is the assumption of the risk. They cite Zachs v. Pleasant for the proposition. I[’]ll quote it, that assumption of the risk implies an intentional exposure to a known danger, and they do go through, to some extent, the distinction between contributory negligence and assumption of the risk; that while may overlap often and may certainly result in the same result, they are not the same. And assumption of the risk, obviously, is where the risk of danger was known and understood by the plaintiff, and the plaintiff consented, voluntarily chose to encounter the risk.

In this case, in Casper, they found where the plaintiff voluntarily enters into a situation involving obvious danger, he or she may be found to have assumed the risk. There is no doubt of tender years can assume the risk of his or her actions. In determining whether or not a plaintiff had knowledge and appreciation of the risk, an objective standard must be applied, and a plaintiff will not be heard to say that he did not comprehend the risk which must have been obvious to me. In this case, the facts do permit only one conclusion.

The facts as stated by the plaintiff herself were that several days before the incident, she had been the subject of sexual advances, verbal advances, and compliments I guess about how pretty she was and the like, accompanied by some form of sexual assault, exposing her body by lifting up her clothing. That was followed within days on the day of the incident by a phone call from her uncle, where he directed [sic ] stated that he was going to come to the school and pick her up and take her to his house, where they would have sex. So, there can be but one conclusion, that the plaintiff knew of the risk that was involved. I don[’]t find the distinction either in the law or in the facts here.

The ⁵⁴³ plaintiff is arguing between consensual sex and nonconsensual sex. The question then, the only question left is whether she voluntarily exposed herself to that risk of harm. And there are some cases that do say there may not be assumption of the risk where there is no alternative available. Usually, they[’]re questions of pathways, and people walking, and the like, and they had to be somewhere, and there was only one available pathway.

Certainly in this case, the evidence would suggest that there were a number of alternatives available to the plaintiff. She testified that she had been told by her mother that she could come and should come to her when anybody did anything that made her uncomfortable, particularly in the area of sexual advances. Going to her mother would have been an alternative. Any number of other alternatives existed at the school.

When she came into contact with Mr. Shields in the office, she could have handed over the key which was the purported reason for the visit, and left. She could have said, I[’]m not going to leave the office and simply stayed. She could have asked, excused herself to use the restroom. She could have done any number of things.

Or she could have expressly told somebody, I[’]m going with him; he has told me he wants to take me to his house for sex. She did not avail herself of any of those alternatives. And thus, I can[’]t find that it was involuntary. As regards the criminal statute, the criminal statute certainly says that, as a matter of criminal law, consent by someone of this age can never [be] validly given.

And it may be that that policy that[’]s invited there may prevent the claim of assumption of the risk to be raised by the abuser, had this been a case against Mr. Shields. We[’]ve already reviewed cases early on in connection with your motion in limine about defense of contributory negligence and how the abuser may not raise that. And it may be that the Maryland law would not allow that with regard to the assumption of the risk. But I don[’]t think that[’]s the case ⁵⁴⁴ with regard to a claim against a third party, which is what we have here today.

This timely appeal followed. STANDARD of REVIEW Maryland Rule 2-519, governing motions for judgment, provides: (a) Generally. A party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all the evidence. The moving party shall state with particularity all reasons why the motion should be granted.

No objection to the motion for judgment shall be necessary. A party does not waive the right to make the motion by introducing evidence during the presentation of an opposing party’s case. (b) Disposition. When a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff or may decline to render judgment until the close of all the evidence.

When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made. Md. Rule 2-519(a),(b) (2003). Recently, this Court reiterated the standard of review of a motion for judgment: We review the grant of a motion for judgment under the same standard as we review grants of motions for judgment notwithstanding the verdict. Johnson & Higgins of Pa., Inc. v. Hale Shipping Corp., 121 Md.App. 426, 450 , 710 A.2d 318 (1998) (citation omitted).

We assume the truth of all credible evidence on the issue, and all fairly deducible inferences therefrom, in the light most favorable to the party against whom the motion is made. Nissan Motor Co. Ltd. v. Nave, 129 Md.App. 90, 116-17 , 740 A.2d 102 (1999) ⁵⁴⁵ (citations omitted), cert. denied, 357 Md. 482 , 745 A.2d 437 (2000). Consequently, if there is any evidence, no matter how slight, that is legally sufficient to generate a jury question, the case must be submitted to the jury for its consideration. Washington Metro.

Area Transit Auth. v. Reading, 109 Md.App. 89, 99 , 674 A.2d 44 (1996) (citation omitted). Orwick v. Moldawer, 150 Md.App. 528, 531-32 , 822 A.2d 506 (2003). This Court earlier stated: We stated the proper analysis a trial court should undertake in ruling on motions for judgment in James v. General Motors Corp., 74 Md.App. 479, 484-85 , 538 A.2d 782 , cert. denied, 313 Md. 7 , 542 A.2d 844 (1988): [WJhen ruling on a motion for a judgment the trial judge must consider the evidence, including the inferences reasonably and logically drawn therefrom, in the light most favorable to the party against whom the motion is made. If there is any evidence, no matter how slight, legally sufficient to generate a jury question, the motion must be denied----An appellate court reviewing the propriety of the grant or denial of a motion for judgment by a trial judge must conduct the same analysis. [Emphasis added; citations omitted.] Thus, if there are any disputed issues of fact, Maryland Rule 2-519 precludes the trial court from resolving them, unless there is no jury.

See Garrison v. Shoppers Food Warehouse, 82 Md.App. 351, 354 , 571 A.2d 878 (1990). Azar v. Adams, 117 Md.App. 426, 435 , 700 A.2d 821 (1997). DISCUSSION Did the circuit court err by granting appellee’s motion for judgment on the basis that appellant assumed the risk of her injuries ? At the outset of our discussion it is important to note that the Board’s motion for judgment was granted based on the trial court’s ruling that Tanika had assumed the risk of her ⁵⁴⁶ injuries, as a matter of law, by leaving school with Shields, knowing of his intentions.

Assumption of the risk is an affirmative defense with the burden of proof on the defendant. See GILBERT & GILBERT, MARYLAND TORT LAW HANDBOOK, 3rd Ed. § 11.6, p. 124. (2000). Therefore, the defense can be raised when a plaintiff has made out a prima facie case of negligence.

See, e.g., Smith v. Hercules Co., 204 Md. 379, 385 , 104 A.2d 590 (1954). Here, no finding of prima facie negligence was made by the trial court, which merely entertained the Board’s motion on the assumption of risk theory. Therefore, we will presume, arguendo, the negligence of the Board in our discussion of the correctness of the entry of judgment in favor of the Board. In so doing, we have concluded that, even though not clearly articulated by the trial court, there was an implicit finding by the court as to the Board’s negligence.

A fair reading of the colloquy between the court and counsel that preceded the ruling on the motion for judgment supports a conclusion that the court, for the sake of the assumption of the risk argument, presumed negligence. 5 Appellant’s claim of negligence is based upon her assertion that the Board’s employees allowed her to leave school property with Shields and, in so doing, violated well-established Board and school policy. Without conceding negligence, the Board countered that she assumed the risk of her injuries. Assumption of the risk is a complete bar to tort recovery in Maryland. ADM Partnership v. Martin, 348 Md. ⁵⁴⁷ 84, 91, 702 A.2d 730 (1997).

Defining assumption of the risk, the Court of Appeals stated: This Court has defined assumption of the risk as “an intentional and voluntary exposure to a known danger and, therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of conduct toward him and to take his chances from harm from a particular risk.” Rogers v. Frush, 257 Md. 233, 243 , 262 A.2d 549, 554 (1970). It is well settled in Maryland that in order to establish the defense of assumption of risk, the defendant must prove that the plaintiff: “(1) had knowledge of the risk of the danger; (2) appreciated that risk; and (3) voluntarily confronted the risk of danger.” ADM Partnership v. Martin, 348 Md. 84, 91 , 702 A.2d 730, 734 (1997). Baltimore Gas & Elec. Co. v. Flippo, 348 Md. 680, 705-06 , 705 A.2d 1144 (1998).

Appellant now argues that, because an essential element of assumption of the risk is consent and volition, the defense is not available on the facts of this case. That is so, she posits, because the act committed by Shields was a statutory, strict liability crime to which consent of the victim is not available as a defense to the criminal prosecution. Tanika would have us transport the unavailability of consent as a defense to criminal charges to the civil court — that is, if consent is not a defense to the crime, there can be no consent or volition in terms of assumption of the risk as a defense to a tort action. We shall first clarify what may, in the litigating of this appeal, be a misapprehension about consent.

As we have noted, consent of the victim of a sexual offense based upon the age of the victim is not available to a defendant in the criminal realm. See, e.g., Walker v. State, 363 Md. 253, 262-63 , 768 A.2d 631 (2001). It is not that an underage victim cannot consent to the sexual conduct. The crime is not predicated upon the victim’s unwillingness to participate, but rather upon the societal notion that a child of tender years has not yet been able to form the necessary sophistication to fully comprehend the potentially adverse effects of sexual activity.

We ⁵⁴⁸ have found no authority for the proposition that the legal impediment to the defense of consent in the criminal court is equally applicable in the civil court. 6 We shall next put to rest any notion that the defense of assumption of the risk is not available to a defendant who is sued in tort by a minor plaintiff. The law is clear in Maryland that a minor may, under certain circumstances, assume the risk of his or her injuries, completely