Thomas v. Panco Management of Maryland, LLC

GREENE, J. Petitioner, Mary Thomas, filed a negligence action in the Circuit Court for Prince George’s County against the owner of her apartment complex, Foxfire Associates Limited Partnership d/b/a Foxfire Apartments, and the apartment management company, Panco Management of Maryland, LLC (collec ³⁹¹ tively Respondents). Petitioner’s personal injury claim stems from a slip and fall incident on “black ice” 1 that occurred on the premises of the apartment complex. Respondents filed, and the court granted, a motion for judgment at the end of Petitioner’s case based on Petitioner’s alleged assumption of the risk. Based on the record before us, we cannot say, as a matter of law, that Petitioner assumed the risk of slipping and falling on black ice when she exited her apartment building.

Therefore, we shall hold that the trial judge erred by failing to submit the issue of assumption of the risk to the jury for resolution. FACTS AND PROCEDURAL HISTORY On February 21, 2007, Petitioner lived in the Foxfire Apartments complex in Laurel, Maryland, with her daughter and granddaughter. Petitioner had resided in her apartment since 1998. The evidence produced at trial showed that the primary means of egress from the apartment complex to the parking lot where Petitioner kept her car was a central, covered flight of stairs, followed by four additional stairs that led to a sidewalk.

There was also a separate, back exit from the central stairway that led to an “unpaved, dirt area.” Petitioner testified that the front of her apartment complex did not get much direct sunlight. Consequently, in the winter months snow and ice would melt more slowly than in other locations. Petitioner also stated that she knew that when ³⁹² snow and ice melted, the sidewalk would become wet and that icy conditions could develop in freezing temperatures. At approximately 8:30 a.m. on the morning of the injury, Petitioner left her apartment to go to work.

Petitioner walked down the steps of the primary exit and over the sidewalk to the parking lot, where she noticed some patches of ice and snow. When she arrived at her vehicle, she had to hold onto it for support due to the surrounding conditions. When Petitioner returned from work between 2:30 and 3:00 p.m., the temperature had “warmed up” and she noticed that the ice and snow had melted but that the sidewalks were wet. Petitioner left her apartment again at approximately 6:00 p.m. on the evening of the accident to drop off her granddaughter at a youth group meeting at a nearby church.

Petitioner returned home at approximately 6:15 p.m. When she arrived home, Petitioner again noticed that the sidewalk in front of her apartment was wet, but she saw no sign of salt or melting pellets on the sidewalk or walkway. At approximately 8:00 p.m., Petitioner left her apartment to pick up her granddaughter from the meeting. Petitioner alleges that she had just stepped down from the last step of the stairway onto the sidewalk when she slipped and fell on ice, which she could not see and did not know was on the stairway.

After the fall, Petitioner’s neighbor, Jean Gillette, came outside to assist Petitioner. As Ms. Gillette stepped off of the last step onto the sidewalk she too slipped, but did not fall, on what she described as “black ice.” As a result of the incident, Petitioner suffered a compound fracture in her right leg. She filed a negligence action in the Circuit Court for Prince George’s County against Respondents. At trial, Lawrence Dinoff, qualified as an expert in “forensic architecture,” described in his testimony the peculiar characteristics of the sidewalk that allowed it to foster the accumulation of ice when it became wet from melted snow.

In addition to testifying that the high temperature on the day of the accident was fifty-one degrees, Mr. Dinoff stated that the temperature did not go below freezing until about “an hour before ... [Petitioner’s] fall occurred.” ³⁹³ At the conclusion of Petitioner’s presentation of her case, Respondents moved for judgement, asserting the defenses of contributory negligence and assumption of the risk. While the trial judge denied the motion as to contributory negligence, he granted the motion for judgment on the grounds that Petitioner had assumed the risk of her injury as a matter of law. 2 Noting that the Court of Special Appeals had decided Allen v. Marriott Worldwide Corp., 183 Md.App. 460 , 961 A.2d 1141 (2008), cert. denied, Allen v. Marriott, 408 Md. 149 , 968 A.2d 1065 (2009) the previous day, the trial court concluded that Petitioner had knowledge of the risk of slipping on black ice as a matter of law. In addition, as to the voluntariness requirement of the assumption of the risk defense, the court rejected Petitioner’s argument that Rountree v. Lerner Dev. Co., 52 Md.App. 281 , 447 A.2d 902 (1982), controlled, and ruled that Petitioner had encountered the danger voluntarily.

The Court of Special Appeals affirmed. Thomas v. Panco Mgmt. of Md., LLC, 195 Md.App. 245 , 6 A.3d 304 (2010). Also relying on the reasoning of Allen , it concluded that Petitioner had knowledge of the risk of slipping on black ice. The court also concluded that Petitioner had assumed the risk of her injury voluntarily, and opined that Rountree was no longer good law.

We granted Petitioner’s writ of certiorari, Thomas v. Panco Mgmt., 418 Md. 190 , 13 A.3d 798 (2011), which asked us to determine “[w]hether the Court of Special Appeals erred when it affirmed the judgment of the Circuit Court concluding, as a matter of law, that the Petitioner knowingly and voluntarily assumed the risk of slipping on ‘black ice’ when she left her apartment.... ” I. We review the trial court’s grant of Respondents’ motion for judgment de novo, considering the evidence and ³⁹⁴ reasonable inferences drawn from the evidence in the light most favorable to the non-moving party. See Md. Rule 2-519; C & M Builders, LLC v. Strub, 420 Md. 268, 290 , 22 A.3d 867, 880 (2011); Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503 , 16 A.3d 159, 163 (2011). Under Maryland Rule 2-519, 3 when a defendant moves for judgment based on an affirmative defense, or upon the legal insufficiency of the plaintiffs evidence, the trial judge must determine if there is “any evidence, no matter how slight, that is legally sufficient to generate a jury question,” and if there is, the motion must be denied and the case submitted to the jury. C & M Builders, 420 Md. at 290 , 22 A.3d at 880 (quoting Tate v. Bd. of Educ., 155 Md.App. 536, 545 , 843 A.2d 890, 895 (2004)).

It is only when the “facts and circumstances only permit one inference with regard to the issue presented,” that the issue is one of law for the court and not one of fact for the jury. Scapa, 418 Md. at 503 , 16 A.3d at 163 . An appellate court must review the grant or denial of a motion for judgment by conducting the same analysis as the trial judge. C & M Builders, 420 Md. at 291 , 22 A.3d at 880 ; Tate, 155 Md.App. at 545 , 843 A.2d at 896 .

Thus, the grant of Respondents’ motion for judgment based on assumption of the risk was appropriate only if all evidence and reasonable evidentiary inferences, viewed in a light most favorable to Petitioner, could have led only to the conclusion that she assumed the risk of her injuries. C & M Builders, 420 Md. at 291 , 22 A.3d at 880 . In arguing that the motion was improperly granted, Petitioner first contends that in Allen , the Court of Special Appeals misinterpreted Maryland’s assumption of the risk doctrine and that the Allen holding, relied upon by the trial court and the intermediate appellate ³⁹⁵ court in the instant case, invaded the province of the jury by allowing judges to weigh evidence and impute constructive knowledge of a risk to a plaintiff as a matter of law. Secondly, Petitioner argues that the courts’ disavowal of Rountree and their interpretation of the voluntariness element in instant case will bar recovery for all tenants who slip and fall on ice in the common approaches and walkways of their apartment complexes.

We agree and shall address each of these contentions in turn.

II

In Maryland, there are three requirements that a defendant must prove to establish the defense of assumption of the risk: (1) the plaintiff had knowledge of the risk of the danger; (2) the plaintiff appreciated that risk; and (3) the plaintiff voluntarily confronted the risk of danger. ADM P’ship, 348 Md. at 90-91, 702 A.2d at 734. The question of whether the plaintiff had knowledge and appreciation of the particular risk at issue is ordinarily a question for the jury, “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.” Schroyer v. McNeal, 323 Md. 275, 283 , 592 A.2d 1119, 1123 (1991) (quotation omitted) (emphasis added). Where it is clear, however, “that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.” Schroyer, 323 Md. at 283 , 592 A.2d at 1123 (emphasis added); accord Gibson v. Beaver, 245 Md. 418, 421 , 226 A.2d 273, 275 (1967).

Allen v. Marriott Worldwide Corp., 183 Md.App. 460 , 961 A.2d 1141 (2008), was decided during the course of the trial in instant case. As discussed, supra, both the trial court and the intermediate appellate court relied on that case to conclude that Petitioner had knowledge of the risk of slipping on ice as a matter of law. Allen has since been disavowed by this Court in Poole v. Coakley & Williams Constr., Inc., 423 Md. 91 , 31 A.3d 212 , 2011 WL 5100994 (2011). Poole presented similar facts and legal questions to those in the instant case, ³⁹⁶ the main issue for resolution being whether Petitioner in that case knew of the risk of slipping and falling on black ice as a matter of law.

Id. In Poole, we explained the essential portions of the Allen opinion of which we disapproved. We said: In Allen , the Court of Special Appeals affirmed the trial judge’s grant of summary judgment in favor of the defendant, Marriott Corporation, on the ground that one of its guests, Mr. David Allen, had assumed the risk of slipping and falling on black ice while walking across the parking lot from the entrance of the hotel to his wife’s car. Allen, 183 Md.App. at 462, 478-80 , 961 A.2d at 1142, 1151-52 .

Notwithstanding the fact that black ice is, by its nature, invisible or difficult to see, the Allen court stated that “the path to knowledge is not limited to the sense of sight alone.... Knowledge springs not only from direct sense perception but from the drawing of inferences from circumstantial evidence. Induction is as worthy a highway to knowledge as is sensation.” Allen, 183 Md.App. at 473 , 961 A.2d at 1149 . The court concluded that because the plaintiff had testified that he observed visible ice and snow in the vicinity prior to his slip and fall and “acknowledged his general familiarity with the phenomenon of black ice” that “when the bits and pieces of information about the appellant’s awareness of risk came together, they were enough, objectively, to achieve critical mass” and so “[t]he question was properly one of law for the court to decide on summary judgment.” Allen, 183 Md.App. at 476, 478-79 , 961 A.2d at 1150-51 .

The Allen court bolstered its holding with the following reasoning, in which we also find error: 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 ³⁹⁷ 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. Poole v. Coakley & Williams Constr., Inc., 423 Md. 91 , 31 A.3d 212 (2011). In granting Respondents’ motion for judgment, the trial court in instant case relied primarily on the Allen court’s reasoning, stating: I find this is almost exactly the Allen case. The test as set forth in the Allen decision is [that] 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 establishes 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.

On review, the intermediate appellate court similarly found Allen to be apposite in the present case. It stated: “We agree with [the trial judge] that the uncontradicted first-level facts developed in this case objectively showed that [Mary] Thomas, like David Allen, had at the time of her fall, knowledge of the risk that she might be stepping down upon ice and that a reasonable person in her position would have appreciated the danger of that action.” Thomas, 195 Md.App. at 256 , 6 A.3d at 311 . ³⁹⁸ It was error for the trial court to rule, as a matter of law, that Petitioner had knowledge of the risk for the same reasons we explained in Poole, namely that the Allen case expanded the knowledge prong of the assumption of the risk test to permit the trial judge to impute knowledge under circumstances where the risk of danger may not have been fully known to and understood by the plaintiff. Thus, we restate our reasoning in Poole at length because of its applicability to the present case: Allen expands the knowledge prong of the assumption of the risk test to permit the trial judge to impute knowledge under circumstances where the risk of danger may not have been fully known to and understood by the plaintiff, thereby enlarging the category of cases in which a court may impute knowledge to a plaintiff as a matter of law. As explained, supra, “the doctrine of assumption of risk will not be applied [as a matter of law] 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.” Schroyer, 323 Md. at 283 , 592 A.2d at 1123 (emphasis added).

When it is clear, however, “that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.” Id. Thus, in order for a plaintiff to have assumed the risk of his or her injuries as a matter of law, we require that a plaintiff “must” have known that the risk was “actually present,” not that he or she “would,” “should,” or “could” have known that the risk “might well be present.” See Kasten Constr. Co. v. Evans, 260 Md. 536, 544-45 , 273 A.2d 90, 94 (holding that even though defendant argued that plaintiff, a utility linesman, “should have known” of the danger involved in climbing a utility pole, the issue was properly one for the jury because there were no signs of structural instability, and his knowledge of the danger was not clear and undisputed); cf. McClearn [v. Southeast Concrete Co.], 253 Md. [135] at 139, 251 A.2d [896] at 899 (stating that plaintiff was experienced in the cement finishing business, and therefore “certainly must have been ³⁹⁹ aware” of the danger of directing the driver in the process of backing up a cement truck) (emphasis added); see also Martin v. Heddinger, 373 N.W.2d 486, 490 (Iowa 1985) (“[Assumption of risk is a matter of whether the plaintiff knew of the risk, not whether the plaintiff should have known of it.”). The Allen court’s formulation diminishes the requirement that a plaintiff actually and fully know and understand the risk he or she is confronting and proposes that a plaintiff may be judicially charged with knowledge in a circumstance where he or she should infer the existence of a dangerous condition.

Maryland jurisprudence, however, directs that courts may only impute knowledge to the plaintiff, as a matter of law, when there is undisputed evidence of awareness, e.g., physical interaction with or sensory perception of the dangerous condition in the case of Schroyer, ADM P’ship, or Morgan State; the risk of danger is so obvious that any person of normal intelligence will be taken to comprehend it, as in Gibson or C & M; or the risk is an usual and foreseeable consequence of the plaintiffs conduct, as in Cotillo. Beyond these circumstances, we have held that “[wjhere there is a dispute whether the risk is assumed or not, that question is usually left to the jury[,]” Bull S.S. Lines [v. Fisher ], 196 Md. [519] at 526, 77 A.2d [142] at 146, because the role of the fact finder is to assess the credibility of the evidence and to draw a conclusion from among the inferences which may be reasonably drawn from that evidence. See American Law of Torts, § 12:53, at 433 (“Only where reasonable men could not differ as to the conclusion to be reached, the court itself may determine the issue.”) In Allen , the plaintiff testified that he had crossed the parking lot without incident after the snowfall but prior to his slip and fall. Also, while he observed visible ice and snow piled against the curb of the parking lot, he had not seen any in the area of the lot on which he stepped, and did not see the ice upon which he fell.

The intermediate appellate court aptly defined “black ice,” and described the ⁴⁰⁰ “meaningful contrast” between “white ice” and “black ice,” as “between essentially visible ice and essentially invisible ice.” 183 Md.App. at 469-470 , 961 A.2d at 1146-47 . Whereas the Allen court did not find the invisibility of the black ice to be a significant factor in withholding judicial imputation of knowledge to the plaintiff, this Court does. 183 Md.App. at 472-73 , 961 A.2d at 1148-49 . "While, indeed, “the path to knowledge is not limited to the sense of sight alone,” it is not for the courts, as a matter of law, to determine that although a danger was, by its nature, imperceptible by direct sensation, “inferences from circumstantial evidence” were drawn by a particular plaintiff. Allen, 183 Md.App. at 473 , 961 A.2d at 1149 .

The Allen court’s statement that the requisite knowledge at the time of injury is not knowledge that ice is actually present, but, rather, “the appreciation of the reasonable likelihood that, under the ... circumstances ice might well be present” negates the legal truism that assumption of the risk “rests upon 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.” Crews, 358 Md. at 640-41,751 A.2d at 488 (internal quotations omitted) (emphasis added). Thus, it was error to find, as a matter of law, that the plaintiff in Allen had knowledge of the risk of slipping on black ice when the evidence showed only an “awareness that it might” exist and an inference could have been drawn that it “may be there.” Allen, 183 Md.App. at 479-80 , 961 A.2d at 1152 . Rather, for a court to impute knowledge as a matter of law, the evidence and all permissible inferences must make clear that the plaintiff had full, actual, and subjective knowledge of the risk or that “a person of normal intelligence in the position of the plaintiff must have understood the danger.” See Schroyer, 323 Md. at 283-84 , 592 A.2d at 1123 (emphasis added). In the absence of this level of proof, any determinations as to “bits and pieces of information” required to achieve a “criti ⁴⁰¹ cal mass” sufficient to impute knowledge to a plaintiff, is a puzzle properly put together by the jury.

In the instant case, there were factual issues creating a jury question as to Petitioner’s knowledge of the risk of slipping on black ice. In ruling on the knowledge prong, the trial judge found the following: In this case, there is no dispute about the underlying 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. [A]nd ... 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 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.

Contrary to the trial judge’s ruling, the facts do not point only to the conclusion that Petitioner assumed the risk of her injuries. See C & M Builders, 420 Md. at 291 , 22 A.3d at 880 ; Gibson, 245 Md. at 421 , 226 A.2d at 275 ; Stuart Speiser, Charles Krause & Alfred Gans, The American Law of Torts § 12:53, at 433 (2008) (hereinafter American Law of Torts) (“Only where reasonable men could not differ as to the conclusion to be reached, the court itself may determine the issue.”). Likewise, the permissible inferences from the undisputed evidence do not clearly establish that the risk of danger was fully known to and understood by the Petitioner. Schroyer, 323 Md. at 283 , 592 A.2d at 1123 .

Indeed, several of the facts relied upon by the trial court in the present case to grant judgment as a matter of law, including the fact that Petitioner did not see any maintenance activity or salt on the walkway, could lead just as easily to the inference that Petitioner did not have knowledge of the “essentially invisible” ice. Allen, 183 Md.App. at 469-70 , 961 ⁴⁰² A.2d at 1147. Other facts, selectively disregarded by the court, further support this position. For example, the weather in the days leading up to the accident was warm and dry, there was a high temperature of fifty-one degrees on the day of the accident, and the temperature had just fallen below freezing in the hour before the accident occurred.

Also, the walkways had been traversed previously that day without incident by Petitioner and, while they appeared wet, there was no visible accumulation or puddles of water. Further, Petitioner’s neighbor testified that when she came out to render assistance to Petitioner, she saw no ice on the walkway in the vicinity of Petitioner’s fall, and the spot where Petitioner fell appeared to be water rather than ice. Also, Petitioner presented the testimony of a forensic architect, Mr. Dinoff, who testified, “[Y]ou can have ice in a very thin layer on a concrete sidewalk that will not appear slippery because it’s not thick enough to overcome the natural traction of a rough sidewalk.” As explained, supra, granting a motion for judgment under Maryland Rule 2-519 is only appropriate if all evidence and reasonable evidentiary inferences, viewed in a light most favorable to the non-moving party, lead to only one conclusion — here, that Petitioner assumed the risk of her injuries. C & M Builders, 420 Md. at 291 , 22 A.3d at 880 ; Scapa, 418 Md. at 503 , 16 A.3d at 163 ; Tate, 155 Md.App. at 545 , 843 A.2d at 896 .

If there is “any evidence, no matter how slight, that is legally sufficient to generate a jury question,” then the motion must be denied and the case submitted to the jury. C & M Builders, 420 Md. at 290 , 22 A.3d at 880 (quoting Tate, 155 Md.App. at 545 , 843 A.2d at 895 ). As we explained in Poole, knowledge should not be imputed as a matter of law where the facts or the reasonable inferences from the facts are in dispute. Poole v. Coakley & Williams Constr., Inc., 423 Md. 91 , 31 A.3d 212 (2011); C & M Builders, 420 Md. at 291 , 22 A.3d at 880 .

Given the evidence and testimony summarized above, it is clear that this standard was not followed because the facts and inferences applicable to the issue of Petitioner’s knowledge lend themselves to more than one conclusion. Therefore, whether Petitioner assumed the risk of her injuries ⁴⁰³ was a question of fact and should have been answered by the trier of fact, in this case the jury.

III

Petitioner also contends that the grant of Respondents’ motion for judgment was improper because she did not encounter the danger voluntarily, and thus did not assume the risk of her injuries. Relying on Rountree v. Lerner Dev. Co., 52 Md.App. 281, 447 A.2d 902 (1982), Petitioner contends that Respondents, by failing to provide her with a reasonably safe means of ingress to and egress from her apartment, constrained her freedom of choice and coerced her into encountering the risk of slipping on black ice. This Court in ADM P’ship, endorsed the principle announced by Prosser and relied upon by the intermediate appellate court in Rountree that: [T]here can be no restriction on the plaintiffs freedom of choice either by the existing circumstances or by coercion emanating from the defendant.

This is so because even where the plaintiff does not protest, the risk is not assumed where the conduct of the defendant has left [the plaintiff] no reasonable alternative. Where the defendant puts [the plaintiff] to a choice of evils, there is a species of duress, which destroys the idea of freedom of election. ADM P’ship., 348 Md. at 92-93, 702 A.2d at 735 (quoting W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 68, at 490-91 (5th ed.1984) (hereinafter Prosser and Keeton )); accord Rountree, 52 Md.App. at 285, 447 A.2d at 904 . We further explained: The plaintiffs acceptance of the risk is to be regarded as voluntary even though he is acting under the compulsion of circumstances, not created by the tortious conduct of the defendant, which have left him no reasonable alternative.

Where the defendant is under no independent duty to the plaintiff, and the plaintiff finds himself confronted by a choice of risks, or is driven by his own necessities to accept ⁴⁰⁴ a danger, the situation is not to be charged against the defendant. ADM P’ship., 348 Md. at 93, 702 A.2d at 735 (quoting Restatement (Second) of Torts § 496E cmt. b). We recognize Rountree as an example of a landlord-tenant situation, where the plaintiff may have acted under the compulsion of circumstances “created by the tortious conduct of the defendant, which ... left [the plaintiff] no reasonable alternative” and therefore the plaintiff could not be held to have assumed the risk of her injuries as a matter of law. ADM P’ship., 348 Md. at 93, 702 A.2d at 735.

Our post Rountree case law has not implicitly overruled Rountree , as suggested by the trial court and intermediate appellate court in this case. In Rountree , the plaintiff, a tenant, slipped and fell on ice while leaving her apartment to go to work. Rountree, 52 Md.App. at 282 , 447 A.2d at 902-03 . There was evidence that she exited from the only means of egress from the building.

Rountree, 52 Md.App. at 283-85 , 447 A.2d at 903-04 . According to the facts presented, the plaintiff knew about the ice and snow outside of her apartment, and she had decided to leave for work later than usual because she believed that the conditions outside would improve or that maintenance would clear the hazard. Rountree, 52 Md.App. at 283, 285 , 447 A.2d at 903-04 . Despite the plaintiffs efforts to wait for the conditions to improve, and her efforts to use care while exiting her apartment, she slipped on the ice and sustained injuries while walking to her car.

Rountree, 52 Md.App. at 283-84 , 447 A.2d at 903-04 . The trial court ruled that she had assumed the risk of her injuries as a matter of law. Rountree, 52 Md.App. at 282 , 447 A.2d at 903 . On appeal, the intermediate appellate court held that the plaintiffs knowledge of the danger, ie., the risk of slipping on ice, was not dispositive because knowledge “is simply one of two limitations on the defense of assumption of risk----” Rountree, 52 Md.App. at 284 , 447 A.2d at 904 .

The court quoted Prosser to explain that: ⁴⁰⁵ The second important limitation upon the defense of assumption of risk is that the plaintiff is not barred from recovery unless his choice is a free and voluntary one. There must first of all, of course, be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct. It is not every deliberate encountering of a known danger which is reasonably to be interpreted as evidence of such consent. Rountree, 52 Md.App. at 284 , 447 A.2d at 904 (quoting William L. Prosser, Handbook of the Law of Torts § 68, at 450 (4th ed.1971) (hereinafter Prosser, 4th ed.)).

While the Rountree court found that there was clear and decisive evidence of a “deliberate encountering of a known danger” by the plaintiff, it also pointed out that “the tenant had a right to egress from her apartment” and “a right to assume that the landlord would take all appropriate steps to make safe egress possible.” Rountree, 52 Md.App. at 285 , 447 A.2d at 904 . Thus, the court noted that the plaintiffs conscious decision to encounter the risk may not have been voluntary, and again quoted Prosser: Even where the plaintiff does not protest, the risk is not assumed where the conduct of the defendant has left him no reasonable alternative. Where the defendant puts him to a choice of evils, there is a species of duress, which destroys all idea of freedom of election. Thus ... a tenant does not assume the risk of the landlord’s negligence in maintaining a common passageway when it is the only exit to the street.

In general, the plaintiff is not required to surrender a valuable legal right, such as the use of his own property as he sees fit, merely because the defendant’s conduct has threatened him with harm if the right is exercised.... By placing him in the dilemma, the defendant has deprived him of his freedom of choice, and so cannot be heard to say that he has voluntarily assumed the risk. Rountree, 52 Md.App. at 285-86 , 447 A.2d at 904 (quoting Prosser, 4th ed. § 68, at 451). The intermediate appellate court found that because there was no evidence that the ⁴⁰⁶ plaintiff had a reasonably safe alternative route of egress from her apartment, she had not voluntarily assumed the risk of her injuries as a matter of law; rather, the issue of voluntariness was “at the very least” a question for the jury.

Rountree, 52 Md.App. at 286, 447 A.2d at 905 . The court also noted, however, that “[i]f there had been evidence in this case that there was a reasonable and safe alternative route of egress open to the [plaintiff] and that she deliberately chose the shorter but more dangerous route, that might well establish as a matter of law that she was guilty of having assumed the risk.” 4 Id. In the case sub judice, the trial court erroneously concluded that Rountree was no longer good precedent, and erred when it decided that Petitioner voluntarily assumed the risk of her injury as a matter of law. The trial court stated: I, frankly, don’t believe that this analysis by Judge Moylan in 1982 is the law in Maryland any longer.

All of the cases that he cited in the Allen case, Schroyer, ADM Partnership, and Morgan State post-date Rountree [sic] by a great deal of time. I don’t believe that the voluntariness is this. I believe that taking Judge Moylan’s argument here really, in essence, does make the landlord the guarantor of any harm to the tenants, which is not the law in Maryland. 5 ⁴⁰⁷ 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. The intermediate appellate court also believed that our recent snow