Thomas v. Panco Management of Maryland, LLC

SALMON, J. Mary Thomas fell on ice on the sidewalk in front of her apartment building on February 21, 2007, and as a consequence of the fall she fractured her right leg. Approximately six months after her fall, Thomas filed a negligence action in the Circuit Court for Prince George’s County against the owner of the apartment complex where she lived, Foxfire Associates Limited Partnership, and the management company that ran the apartment complex, Panco Management of Maryland, LLC. A jury trial commenced on December 8, 2008, the Honorable Sean D. Wallace, presiding. At the conclusion of Thomas’s case, Judge Wallace granted the defendants’ motion for judgment on the grounds that Thomas had, as a matter of law, assumed the risk of injury.

On appeal, Thomas raises two issues, which we have condensed into one: Whether the court erred when it concluded, as a matter of law, that the appellant knowingly and voluntarily assumed the risk of slipping on “black ice” when she left her apartment to pick up her granddaughter from a meeting at her church. ²⁴⁸ I. Facts 1 On February 21, 2007, Thomas lived at apartment 202 in the Foxfire Apartment complex in Laurel, Maryland. Residing with her were Thomas’s granddaughter, Whitney Kay, age 16, and her daughter, Jennifer Kay, age 36. Thomas had lived at apartment 202 since 1998. During the entire period Thomas lived in apartment 202, her downstairs neighbor (in apartment 101) was Jeanne Gillete (“Gillete”).

Immediately in front of the apartment building where Thomas and Gillete lived was a parking lot. To get to the parking lot, tenants in Thomas’s building had to traverse a flight of stairs that was covered by a roof; then descend four additional stairs to a sidewalk. Thomas’s fall occurred as she left the last stair and stepped onto the sidewalk. The fall occurred because the portion of the sidewalk upon which Thomas stepped was covered with what Gillete was later to describe as “black ice.” The portion of the sidewalk where Thomas fell was only a few feet from the place in the parking lot where Thomas’s car was parked.

Thomas testified that the area in front of her apartment building does not get much direct sunlight. As a consequence, in the winter, snow and ice tended to stay much longer than it did in other locations. And, as Thomas knew before the accident, when the snow and ice melted, the water would flow onto the sidewalk, and make the sidewalk wet. She also knew that; “as a consequence of the snow melting and running out onto the sidewalk at night,” icy conditions could develop if temperatures fell below freezing.

Weather records introduced into evidence by Thomas showed that on the date of the accident the temperature reached a high of 51°. ²⁴⁹ Thomas testified that on the morning of the accident, she left for work at approximately 8:30 a.m. The weather was cold and clear and she noticed, “in different areas” on the sidewalk in front of her apartment, that snow and ice had accumulated. In fact, as she entered her vehicle, which was parked in a space directly in front of her building, she had to hold onto it for support because there was ice. And, appellant could see the ice in the parking lot.

When she returned from work at between 2:30 and 3:00 p.m., weather conditions had “warmed up” and the ice and snow were gone. She noticed, however, that the sidewalk was wet. She saw no sign that the apartment complex’s maintenance men had cleared snow or ice while she was at work. Thomas left her apartment once again at “a little after 6 [p.m.]” on the evening of the accident.

The reason she left her apartment was to drop off her granddaughter, Whitney, at a youth group meeting at the local Baptist church. At that point the temperature was falling. She returned home at approximately 6:15 p.m. When she did so, Thomas noticed that the sidewalk in front of her apartment was wet and also noticed that there was no sign of salt or melting pellets on the sidewalk or walkway.

At approximately 8:00 p.m. Thomas left her apartment again to pick up her granddaughter from the church. As she stepped down from the last step of the stairway onto the sidewalk, she slipped on ice that was on the sidewalk and fell. Before she stepped onto the sidewalk she did not see the ice.

Very shortly after the fall, Thomas’s neighbor, Ms. Gillete, along with another resident, came to Thomas’s assistance. As Ms. Gillete stepped off the last step onto the sidewalk she saw what she believed to be a wet spot or “black ice” that caused her to slip but not fall. Gillete testified that she had arrived home from work at about 5:00 or 5:30 p.m. and noticed that the sidewalk was wet. It still looked wet at the time of the accident and she explained that “[w]ater can appear to be glassy as well as ice.” ²⁵⁰ Gillete testified that the maintenance staff at the apartment complex where she had lived for the last 19 years was “generally responsive to calls for maintenance.” She further testified that as a long-time resident of the apartment complex she was aware that the walkways and the sidewalks were susceptible to having fallen snow melt and run onto them.

And, as a consequence of that knowledge she was generally cautious when she left her house during the winter months. Thomas, on cross-examination by counsel for the appellees, had similar knowledge: Q. Now, apart from you knowing about this phenomena, this snow being retained, and when snow would melt it would run onto the sidewalks, apart from your personal knowledge, based on your own conversations with other residents, that was a common knowledge throughout that building— A. Yes. Q. —correct? A. Yes, that’s correct.

Q. And you had discussed that condition, certainly, with your neighbors? A. Yes. It was a joke. I mean, we were going to have it until April because nothing was going to get done.

Q. Ma’am, you knew also, as a consequence of the snow melting and running out onto the sidewalks that at night, if temperatures fell below freezing, icy conditions could develop? A. They could develop. Q. Now, given that the residents, well, your neighbors and you knew that ice could form following a thaw, a reasonable person would take due care when leaving the building at night, wouldn’t you agree? A. Sure, I would.

And I know that we all do. Q. And you would agree that a reasonable person would be cautious. And being cautious would include watching where you are going, correct? ²⁵¹ A. Exactly. Q. And a reasonable person being cautious would be cautious and looking down at where they were walking, is that correct?

A. That’s correct. Q. A reasonable person being cautious would also be looking for wet portions of the sidewalk as they were walking at night after a thaw? A. Right. Wet portions.

Right. Q. Correct. And a reasonable person acting cautiously would also be looking for ice? A. And if they saw it, they would walk around it.

Q. But my point, Ms. Thomas, is this. That with that knowledge, with that— A. If you see it, yes. Q. Well, let me finish my question, ma’am. With that unique knowledge about that condition at your property, you would agree with me that a reasonable person under those conditions when they would leave at night would be looking for ice?

A. Yes. And again, if you saw it, you would walk around it. Q. Based on your own personal observations over those nine years, you had seen ice on the sidewalks out in front of your building before, is that correct? A. Yes, sidewalk and parking lot.

Q. And the ice wasn’t always in the same place, was it? A. No. Q. It would be various places at various different times, is that correct? A. That’s correct? Thomas’s daughter, Jennifer Kay, testified that she was at work at the time of her mother’s accident.

She said on cross-examination that to her knowledge there would not have been ²⁵² any adverse consequences if her daughter had not attended the church meeting on the night of the accident. Lawrence Dinoff, who was qualified as an expert in “forensic architecture,” testified that in the area where the accident occurred the lawn was higher than the sidewalk, which meant that if snow on the grass melted it would run onto the sidewalk. He characterized the sidewalk as “sunken” and criticized the design of the sidewalk and walkways as deficient in several ways, some of which fostered the accumulation of ice. According to Mr. Dinoff, weather records at Baltimore Washington Airport, which was not far from the scene of the accident, showed that it snowed on February 14, 2007, and that on February 20, 2007, the high temperature was 47 degrees.

On the date of the accident, February 21st, the high temperature was 51 degrees. According to Mr. Dinoff, the temperature did not go below freezing on the date of the accident until about “an hour before ... [Thomas’s] fall occurred.” II. The Trial Judge’s Opinion In granting the motion for judgment in favor of the defendants, Judge Wallace first noted that our opinion in Allen v. Marriott Worldwide Corp., 183 Md.App. 460 , 961 A.2d 1141 (2008), had been decided the previous day. Judge Wallace said, in pertinent part: In this case, there is no dispute about the underlying facts, the first level facts that the sidewalk was wet.

It was observed to be wet and known to be wet by the plaintiff on the four other occasions that she traversed it that day. And she, and that the weather was, from the last time, that would be 6 o’clock until 8 o’clock, that the weather was getting colder. She said she saw no salt or any evidence of any salting being done. And that she was aware, as were all of her neighbors, that water would collect in that area, melting snow made the sidewalks wet, and thus they all took ²⁵³ due care being cautious and looking for ice.

She didn’t see any sign of any maintenance activity that day, that evening. She wasn’t looking for salt, and she wasn’t looking for ice. And nonetheless, she did attempt to traverse that wet area and fell. I find this is almost exactly the Allen case.

The test as set forth in the Allen decision is a plaintiff objectively speaking must have reason to know of the risk. In a case such as this, the risk is that of slipping on ice. The required knowledge is not knowledge that ice is actually present, which is what we all were talking about prior to yesterday, but it is the appreciation of the reasonable likelihood that under the weather conditions and other circumstances, ice might well be present. The assumed risk is not that of stepping on ice, per se.

The assumed risk is of stepping onto an unknown surface with an awareness that it might well be icy. With white ice, you see it there. With black ice, you infer the likelihood that it may be there. Either establishing the element of awareness.

So, I do find that as a matter of law, she was or should have been aware of the risk, that she appreciated it because she said she was familiar with it, and that she voluntarily assumed that risk by undertaking to cross it that day. Because I don’t find that the mere fact that she was a tenant means that any otherwise voluntary acceptance of the risk or confrontation of the risk somehow becomes involuntary because of the tenant relationship. There were alternatives, some of which were discussed here. And the alternative of not taking her granddaughter out for that event, and knowing that you’d have to pick her up again after the temperature had dropped under those circumstances.

So, for all of those reasons, I frankly don’t see that I have any choice but to grant the motion for judgment on the basis of the assumption of the risk.... ²⁵⁴ III. 2 “[T]o establish the defense of assumption of risk, the defendant must show 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 Pshp. v. Martin, 348 Md. 84, 90-91 , 702 A.2d 730 (1997). In determining whether 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 a risk which must have been obvious to him. Thus, “when it is clear that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.” Moreover, “there are certain risks which anyone of adult age must be taken to appreciate: the danger of slipping on ice, of falling through unguarded openings, of lifting heavy objects ... and doubtless many others.” Allen, 183 Md.App. at 466 , 961 A.2d 1141 (emphasis omitted). In Allen , the Court said: The term “black ice” describes the visual impression created by a relatively thin layer of transparent ice lying over a black surface, such as tar macadam or asphalt. “White ice” describes the different visual image created by a similar layer of transparent ice lying over a white surface, such as snow.

By parity of reasoning, there is no reason to suppose that there could not also be such visual phenomena as “red ice” or “yellow ice” or “blue ice” or, for that matter, “harlequin ice,” but these potential phenomena have not yet made it into the lexicon of tort law. It will readily be seen that “black” and “white” do not describe the actual ice itself but, rather, the color of the surface beneath the ice. Although the meaningful contrast should be between essential ²⁵⁵ ly visible ice and essentially invisible ice, the linguistic usage of attaching the chromatic adjective to the ice has nonetheless taken firm root. We are, after all, dealing with torts, not optics. “White ice” and “black ice” comfortably serve the law’s purpose, and we will happily go with the flow.

Id. at 469-70 , 961 A.2d 1141 . At the time of the accident, Thomas knew: 1) that on the date of the accident there was ice on the sidewalks when she left for work at 8:30 a.m., 2) ice was also present on the parking lot at 8:30 a.m., which caused her to hold on to her car for support, 3) that when the snow melted it would make the sidewalks wet, 4) that at approximately 6:00 p.m. the weather was getting colder, 5) that at 8:00 p.m. (approximately) the temperature was falling when she left her apartment to pick up her granddaughter, and 6) that “as a consequence of the snow melting and running onto the sidewalk, ... if temperatures fell below freezing, icy conditions could develop.” Under these conditions, what was said in Allen is here apposite: To assume a risk as a matter of law, a plaintiff, objectively speaking, must have reason to know of the risk. In a case such as this, the risk is that of slipping on ice.

The required knowledge is not knowledge that ice is actually present. It is the appreciation of the reasonable likelihood that, under the weather conditions and other circumstances, ice might well be present. The assumed risk is not that of stepping on ice per se. The assumed risk is that of stepping onto an unknown surface with an awareness that it might well be icy.

With white ice, you see it is there. With black ice, you infer the likelihood that it may be there. Either establishes the element of awareness. We affirm the grant of summary judgment.

Id. at 479-80 , 961 A.2d 1141 . The facts of this case are somewhat similar to the ones that confronted this court in Allen, supra. David Allen and his wife were guests at the Residence Inn on February 3 thru February 5, 2004. Id. at 462 , 961 A.2d 1141 .

Mr. Allen ²⁵⁶ observed snow and ice on the parking lot and on other places on the premises on the evening of February 4. Id. at 475 , 961 A.2d 1141 . On February 5 the