Warsham v. James Muscatello, Inc.

HOLLANDER, J. This “slip and fall” case arises from an incident that occurred on March 9, 2005, when E. Daris Warsham, appellant, fell as he attempted to salt an icy area on the property of James L. Muscatello, Inc., appellee, his employer’s landlord. Appellant subsequently filed a negligence suit against the landlord on April 27, 2007, to recover for injuries he sustained in the fall. 1 The Circuit Court for Montgomery County granted the landlord’s motion for summary judgment on May 21, ⁶²⁵ 2008, ruling that the suit was barred by the doctrines of contributory negligence and assumption of the risk. This appeal followed. Appellant presents one issue, which we quote: Whether a plaintiff is contributorily negligent or assumes the risk as a matter of law where the plaintiff falls on ice, negligently left by the defendant, while in the process of remedying the icy condition by salting it[.] For the reasons set forth below, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND 2 At the relevant time, appellant was employed by Master’s, Inc. 3 (“Master’s”), located at 7901 Beechcraft Avenue, # A, in Gaithersburg (the “Property”). The Property, located in a warehouse type building, was leased by Master’s from James L. Muscatello, Inc. (the “Company” or the “landlord”). Master’s and the Company shared use of the parking lot. On March 9, 2005, appellant arrived at work between 6:00 a.m. and 6:30 a.m.

The weather was cold, but there was no precipitation, nor had there been any on the previous day. According to appellant, mornings are the busiest time at work, because of deliveries and because Master’s contractors set up ⁶²⁶ their equipment “for the day.” 4 However, appellant claimed that some of Master’s field technicians were told by their supervisor that they should not report to work until after 10:00 a.m., apparently due to concern about the weather. 5 Upon his arrival at work, appellant “was able to clearly see a large icy area” on the parking lot, which he described as a “fishing pond” located “[i]n front of [his] bay door....” He explained that there was an ongoing problem of “standing water” accumulating outside his office, dating at least to the Fall of 2004, when he began working at Master’s. He claimed that vendors and employees of Master’s often complained about “having to trek through the water.” Appellant claimed that he notified his boss, Joe Mathews; 6 the safety coordinator, Gwen Wathen; and others, including appellee’s assistant, “Al,” about the pooling of water in the parking lot. According to appellant, on the date in question the pool of water had “iced over.” Appellant described the conditions as “very slick and very icy.” He maintained that the icy area was large, measuring about ten feet in diameter.

However, he acknowledged that it was plainly visible, and he never notified anyone at Master’s or the Company of the situation on that date. To avoid the icy area, appellant walked through some bushes and on the grass to reach the entrance to his office. Warsham recounted that, soon after his arrival at work on March 9, 2005, he was on the telephone and saw Danny High, ⁶²⁷ a Master’s field technician. High, who was driving a van, was “pulling up onto the area that was frozen over,” in order to access the bay area of the warehouse.

Upon seeing the van drive “up on top of the ice,” appellant left his office to warn High of the ice. According to appellant, he yelled to High: “Be careful not to slip on the ice.” 7 High exited his vehicle without incident. The following deposition testimony is pertinent: [COUNSEL FOR APPELLEE]: [After you entered your office, w]hat did you do next? [WARSHAM]: ... [I saw] someone pulling up onto the area that was frozen over. I was speaking to one of my vendors at the time that it happened.

I said, look, I’ve got to call you right back. I said I can’t believe somebody’s out here.... The van pulled onto the ice----I came out of my door, after I told my vendor I’d have to call him back, and I remember having a bucket of salt or something either inside the door or outside of the door. And I told him don’t get out of the van.... [COUNSEL FOR APPELLEE]: Okay.

Danny High pulled up to the bay door. When you saw him pull up, you got off the phone and the conversation with the vendor that you were on. YOU [sic] walked outside and you warned him to ⁶²⁸ be careful due to the ice that you had seen prior to walking into the building; correct? [WARSHAM]: Correct. [COUNSEL FOR APPELLEE]: So [the driver] walked over [the plastic platform], walked into the supervisor’s office, and you warned him to be careful about that area, correct? [WARSHAM]: That’s what I was trying—in attempts to do. After warning the driver of the van, appellant “grabbed” a bucket of salt located near the door of the Property and proceeded to “spread” the salt with a cup, “so anyone coming into the building wouldn’t slip.” He began by salting the outer portion of the large icy area, because he wanted to avoid walking on the ice.

When appellant got to the opposite side of the icy area, however, he decided to walk across the ice. While doing so, he fell. 8 Appellee moved for summary judgment. It claimed, inter alia, that the Company did not have notice of the ice, and thus had no liability to appellant; that the condition was open and obvious, and therefore appellee owed no duty to appellant; and, as a matter of law, Warsham had assumed the risk of the condition and was contributorially negligent. As to assumption of the risk, appellee averred: The undisputed facts clearly demonstrate that the Plaintiff voluntarily traveled across the alleged defect.

The plaintiff failed to employ the safer, alternative method of walking around the alleged defect. The Plaintiff was on notice of the alleged condition, yet failed to take the necessary steps for his own safety. ⁶²⁹ Since it is clear ... that Plaintiff was aware of the inherent dangers involved in walking on the ice, and voluntarily chose to expose himself to the “danger”, he assumed the risk as a matter of law.... Plaintiff had options, yet, decided to subordinate his safety. It stands to reason that a person of normal intelligence who was placed in a similar situation would be aware of and also capable of appreciating the danger at hand....

At the motion hearing on May 21, 2008, appellant’s counsel agreed with the court that “the facts for the most part, are not in dispute.” Appellant’s counsel added: “In our opposition, we don’t rely on a dispute of fact to oppose the motion.” Nevertheless, in challenging the motion, he argued: With regard to notice. First, the defendant did have notice of the icy condition, because the defendant was well aware that it had a problem with pooling water on its property. That’s a fact not in dispute. It’s a matter of nothing more than common sense that if a party is aware that it has a pooling water problem, then the party should also be aware that it will have an icing problem as soon as that water freezes.

To argue that the knowledge of pooling water, combined with knowledge of freezing weather conditions, doesn’t constitute constructive knowledge of the icy condition in question, is to argue that nothing can constitute constructive knowledge and it ignores basic common sense. [.Regarding the open and obvious issue,] the defendant did owe the plaintiff a duty of care to exercise ordinary care to keep the premises in a reasonably] safe condition, despite the fact that the condition was open and obvious.... We rely on the Bod[d]ie v. Scott case for that [ 124 Md.App. 375 , 722 A.2d 407 (1999) ]. The Court of Special Appeals in Bod[d]ie said that, “even when a danger is fully known and comprehended”—as we admit it was here, he saw the ice, he knew it was dangerous, he warned somebody else of it—“the plaintiff is not barred ⁶³⁰ from recovery simply because he chooses to deliberately encounter it in the following situations.” One of which is specifically where the plaintiff seeks to rescue another person, or his own, or another’s property which is endangered by defendant’s negligence.... Now, we acknowledge that there does seem to be a split in Maryland cases between whether an open and obvious condition is regarded as, goes to the duty that’s owed, or whether it goes to the defense of the assumption of the risk.

And I would argue vehemently that ... the better argument is that it goes to assumption of the risk and not to whether or not there is a duty----[I]t’s better public policy to encourage people to take responsibility for cleaning up their own messes, to take responsibility for remedying dangerous conditions in the first place____ Now here, Mr. Warsham was attempting to prevent the injuries to others when he was injured himself, and the defendants admit this readily. ... [Appellee] admit[s] that this was what [appellant] was trying to do. This commendable activity of trying to help other people. So he recognizes the icy condition and went outside and salted the area. Mr. Warsham, just like in the Bod[d]ie case, was left only with two choices.

Allowing others to be injured by the ice or possibly be injured himself by remedying the condition. Now, there might have been other choices as well. He could have maybe put up a sign or he could have stood out there all day and warned people, but whether or not those were the reasonable choices, that’s a question of fact for the jury to decide and not one that should be considered as a matter of law.... Now, moving on to whether or not assumption of the risk and contributory negligence apply as a matter of law.

Again, the Bod[d]ie case makes clear that neither assumption of the risk nor contributory negligence can bar Mr. Warsham’s claims as a matter of law____[I]n circumstances such as these where a plaintiff injuries [sic] himself in ⁶³¹ attempting to prevent an injury to persons of [sic] property, the defenses of assumption of the risk and contributory negligence aren’t available. And that’s because in order for the assumption of the risk defense to be applicable, the plaintiff must voluntarily assume the risk. (Emphasis added). According to appellant’s counsel, the defenses of assumption of the risk and contributory negligence did not bar appellant’s claims as a matter of law.

Rather, counsel maintained that the viability of the defenses presented questions for a jury to decide. He also stated: “It will be [a] question of fact at the trial, as to Mr. Warsham’s voluntariness.” Further, appellant’s counsel argued: Had Mr. Warsham not warned others off the ice, he warned an individual to stay off the ice and then went out and salted it, other patrons could have been injured.... It’s a busy parking lot.... So Mr. Warsham is left only with the choices of allowing others to be potentially injured on the ice or to be potentially injured himself in remedying the condition.

Appellee’s counsel responded, in part: The plaintiffs counsel ... is attempting to rely on the rescue doctrine here, which are cases which generally involve the risk of life or substantial peril to property. In this situation, that never existed. The testimony from Mr. Warsham alone is that this person backed up their vehicle onto this area of ice, got out of their car, he warned them, they were able to get away from that danger----nobody ever encountered this risk after that fact. If this were a situation where Mr. Warsham came out and in the process of warning, someone slipped and fell, it would be a completely different analysis.... [Appellant] clearly appreciated the risk, was warning this individual, the peril or the danger of a risk, if it existed at all, was gone.

He goes back into his building, picks up salt, which I might mention, is not his responsibility at all of [sic] this property____ ⁶³² * * * ... [He] elects to walk across the ice when he slips and falls. It’s clearly a voluntary action. There’s no risk of injury to anyone at that point in time when he elects to encounter this____He clearly had other options____ * * * ... This really comes down to, did he voluntarily accept the danger.

I think based on his own testimony alone, he did____He assumed the risk as a matter of law. And the reliance on Bod[d]ie , even if you look at Bod[d]ie , it says “and when there’s a reasonable safe alternative open, the plaintiffs choice of the dangerous way is a free one, and may amount to an assumption of the risk, negligence, or both.” [9] Appellant’s counsel countered: [A]ll of Defense counsel’s arguments here are questions for the jury to decide. Whether or not the risk was gone, the extent of the risk that was posed. If you take all inferences in favor of Mr. Warsham as we must, the non-moving party, the inference is that there was some kind of risk.

The extent of that risk is a question for the jury. The argument’s [sic] Defense counsel is making just go to the facts, how severe was the circumstance. How much of a danger was posed. And the risk wasn’t gone, Your Hon- or----An icy condition doesn’t just, just because no one’s standing there right at the moment, doesn’t mean it’s not a dangerous condition. * * $ And I think the underlying point here is that the Bod[d]ie case makes clear that Maryland law favors individuals that ⁶³³ [sic] try on their own volition to remedy the negligent conditions left by other people----[A]s a public policy, we should encourage that.

Again, he might be barred by assumption of risk and contributory negligence at trial, but as a matter of law, we shouldn’t preclude him from bringing his case. He was doing a commendable thing. In addition, appellant’s counsel said: Mr. Warsham is not the bottom level of the tier of these companies, he’s a supervisor. He shows up early in the morning, he has a responsibility for other employees that are coming in, and I think that directly addresses his voluntariness where his obligation is to protect his employees and other employees, I think there are several other companies that use that parking lot, so it wasn’t a choice in [sic] his part where he went out---- He actually has an obligation and a responsibility in a corporate setting to protect the health and safety of his employees.

The court ruled: [T]he material facts at issue in this case are not in dispute. The deposition testimony of the plaintiff in this case is clear that he was aware of the dangerous condition. He knew of the ice at the time that he elected to walk on it. The rescue doctrine that’s been alluded to under the Bod[d]ie case, deposition testimony reflects that the plaintiff warned the individual who was getting ready to walk on the ice and that the individual addressed it.

And at that point after that, the plaintiff elected to go out on the ice, knowing the danger on the ice, and assumed the risk voluntarily of going onto the ice. It’s clear to me from the undisputed evidence in this case and the material facts not being in dispute that the plaintiff contributed to his injuries and assumes the risk. Therefore, the court found “as a matter of law that under the testimony and undisputed material facts, that the plaintiff was barred [by] the doctrine of assumption of risk and contributory negligence.” Accordingly, it granted summary judgment in favor of appellees. Judgment was entered on May 29, 2008. ⁶³⁴ DISCUSSION I. Maryland Rule 2-501 governs summary judgment. “Summary judgment is appropriate where ‘there is no genuine dispute as to any material fact’ and ‘the party in whose favor judgment is entered is entitled to judgment as a matter of law.’ ” Hill v. Cross Country Settlements, LLC, 402 Md. 281, 294 , 936 A.2d 343 (2007) (quoting Md. Rule 2-501(f)).

In deciding whether summary judgment is appropriate, the court must “ ‘determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law.’ ” Wells Fargo Home Mortgage, Inc. v. Neal, 398 Md. 705, 714 , 922 A.2d 538 (2007) (citation omitted). See also Hill v. Knapp, 396 Md. 700, 711 , 914 A.2d 1193 (2007). “A material fact is a fact that, depending on how it is decided by the trier of fact, will affect the outcome of the case.” Mandl v. Bailey, 159 Md.App. 64, 82 , 858 A.2d 508 (2004); see Arroyo v. Bd. of Educ. of Howard County, 381 Md. 646, 654 , 851 A.2d 576 (2004). The party opposing a motion for summary judgment must show disputed material facts with precision in order to prevent the entry of summary judgment. Ecology Servs. v. Clym Envtl.

Servs., LLC, 181 Md.App. 1, 11-12 , 952 A.2d 999 , cert. denied, 406 Md. 444 , 959 A.2d 793 (2008). Put another way, summary judgment is not defeated by “bare allegations or ‘a mere scintilla’ of evidence.” Labor Ready, Inc. v. Abis, 137 Md.App. 116, 125 , 767 A.2d 936 (2001) (quoting Helman v. Kim, 130 Md.App. 181, 192 , 745 A.2d 451 (2000)) (citation omitted); see also Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 738 , 625 A.2d 1005 (1993) (“[T]he party opposing summary judgment ‘must do more than simply show there is some metaphysical doubt as to the material facts.’ ”) (citation omitted). In determining whether the trial court correctly entered summary judgment as a matter of law, we apply a de novo standard of review. See Conaway v. Deane, 401 Md. 219, 243 , ⁶³⁵ 932 A.2d 571 (2007); Harford County v. Saks Fifth Ave.

Distrib. Co., 399 Md. 73, 82 (2007); Prop. & Cas. Ins. Guar.

Corp. v. Yanni 397 Md. 474, 480 , 919 A.2d 1 (2007); Standard Fire Ins. Co. v. Berrett, 395 Md. 439, 450 , 910 A.2d 1072 (2006). Like the trial court, we must make “the threshold determination as to whether a genuine dispute of material fact exists.” Remsburg v. Montgomery, 376 Md. 568, 579 , 831 A.2d 18 (2003). If we are satisfied that there was no genuine issue of material fact, then we must determine if the trial court “ ‘reached the correct legal result.’ ” Crews v. Hollenbach, 126 Md.App. 609, 625 , 730 A.2d 742 (1999) (citation omitted), aff'd, 358 Md. 627 , 751 A.2d 481 (2000); see Anderson v. Council of Unit Owners of Gables on Tuckerman Condo., 404 Md. 560, 571 , 948 A.2d 11 (2008); Knapp, 396 Md. at 711 , 914 A.2d 1193 . “We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the facts against the moving party.” Educ.

Testing Serv. v. Hildebrant, 399 Md. 128, 140 , 923 A.2d 34 (2007); see also Newell v. Runnels, 407 Md. 578, 607 , 967 A.2d 729 (2009); Rhoads v. Sommer, 401 Md. 131, 148 , 931 A.2d 508 (2007); Saks Fifth Ave., 399 Md. at 82 , 923 A.2d 1 ; Lovelace v. Anderson, 366 Md. 690, 695 , 785 A.2d 726 (2001). “If the facts are subject to more than one inference, those inferences should be submitted to the trier of fact.” Hill, 402 Md. at 294 , 936 A.2d 343 . Ordinarily, on review of a grant of summary judgment, an appellate court may “‘uphold the grant of a summary judgment only on the grounds relied on by the trial court.’ ” Pulte Home Corp. v. Parex, Inc., 174 Md.App. 681, 711 , 923 A.2d 971 (2007) (citations omitted), aff'd, 403 Md. 367 , 942 A.2d 722 (2008); see Newell, 407 Md. at 608 , 967 A.2d 729 ; Gourdine v. Crews, 405 Md. 722, 736 , 955 A.2d 769 (2008); Gross v. Sussex, 332 Md. 247 , 254 n. 3, 630 A.2d 1156 (1993); Select Express, LLC v. Am. Trade Bindery, Inc., 178 Md.App. 607, 612-13 , 943 A.2d 90 (2008). However, “ ‘[i]f the alternative ground is one upon which the circuit court would have had no discretion to deny summary judgment, summary judgment may be granted for a reason not relied on by the trial court.’ ” ⁶³⁶ Dixon v. Dep’t of Pub.

Safety & Corr. Servs., 175 Md.App. 384 , 418 n. 18, 927 A.2d 445 (2007) (citation omitted). Further, “[w]hen a motion is based solely upon ‘a pure issue of law that could not properly be submitted to a trier of fact,’ then Ve will affirm on an alternative ground.’” Wash. Mut.

Bank v. Homan, 186 Md.App. 372, 388 , 974 A.2d 376 (2009) (citation omitted).

II

Appellant contends that the court erred in granting summary judgment to appellee. He insists that the defenses of assumption of the risk and contributory negligence do not bar his suit, because he “was left only with the choices of allowing others to be injured by the ice or to possibly be injured himself in remedying the condition.” Further, appellant asserts: In circumstances where a person is injured while attempting to save people or property from a peril created by another’s negligence, the fact that the danger was open and obvious does not negate the plaintiffs claims, and the defenses of assumption of the risk and contributory negligence do not apply. Appellant elaborates: Had Mr. Warsham not warned others of the ice and salted the ice, several other patrons or employees could have been injured and Mr. Warsham had to act quickly to prevent this. Soon other people—employees and customers—would have arrived in the parking lot and encountered the ice.

Appellant concedes that, because he saw the icy condition, “[s]uch circumstances normally present a clear assumption of the risk and/or contributory negligence defense.” But, he asserts: “[Bjecause Mr. Warsham had only the choices of risking his own safety or allowing others to slip on the ice, and because he was actually attempting to prevent injuries to others at the time he was injured, the fact that the condition was obvious does not bar his recovery.” Under these circumstances, argues appellant, “the ‘voluntariness’ element, neces ⁶³⁷ sary for both the assumption of the risk and contributory negligence defenses, is absent.” Moreover, appellant urges this Court to “embrace a public policy that encourages people like Mr. Warsham to take on some personal risk in order to prevent harm to others ...” He posits: There is sufficient evidence in this record, construing the facts in the light most favorable to Mr. Warsham, as this Court must, for a jury to find (1) that Mr. Warsham was attempting to avert harm to people that would be caused by the icy condition negligently left by Muscatello and (2) that Mr. Warsham did not act unreasonably under the circumstances in his attempt to salt the ice. The Company counters that “the circuit court properly granted Museatello’s motion for summary judgment.” It maintains that, in the light most favorable to appellant, “the undisputed evidence” demonstrated that, “as a matter of law, his negligence contributed to his injuries and that he assumed the risk of injury as a matter of law.” Noting that appellant knew and appreciated the risk of slipping on the ice, appellee claims that the “emergency” or “rescue” doctrine does not excuse appellant’s decision to traverse the ice, because there was no “emergency in progress” when appellant chose to walk on the ice. Asserting that “[n]o one was in imminent danger” when appellant undertook to salt the ice, appellee contends that appellant was merely worried about a future danger. The landlord elaborates: [B]oth Warsham and the field technician had arrived at work and made it into the building without transversing [sic] the icy patch.

Warsham also explained that the field supervisor had been into work and left already that morning before his slip and fall____Warsham’s understanding was that the other field technicians had been told not to report to work until after 10:00 a.m.—several hours after the slip and fall occurred. There simply was no “emergency situation” to “justify” or “compel” Warsham’s walking across the ice. ⁶³⁸ In addition, appellee maintains that appellant had other options available to him. It posits: Warsham could have chosen to pick up the telephone and notify the premises owner, Muscatello, of the icy conditions. He could have posted a warning sign.

He could have stood next to the icy patch and warned anyone arriving of the danger. He could have only thrown salt from the side of the icy area and not chosen to walk across it. Alternatively, appellee contends that summary judgment was proper because there was no evidence that appellee breached a duty of care to appellant. In particular, appellee asserts that it owed no duty to appellant because appellee did not have notice that the parking lot was icy.

In addition, appellee argues that it is not liable to appellant because the “icy condition was open and obvious.” In reply, appellant argues: “There is no requirement of an emergency in progress and the circumstances confronting Mr. Warsham were sufficiently exigent to justify his actions.” Insisting that imminent danger was not necessary to render his conduct involuntary, appellant posits that there is a “continuum of dangerous situations that affect the voluntariness element of the assumption of the risk defense.” In support of his argument that he acted out of urgency, because of “a very real possibility of someone slipping and injuring themselves,” appellant points to the following: the icy patch was large, measuring about 10-feet in diameter; the parking lot was busiest in the morning; approximately 100 people cross the lot each day; and appellant decided to salt the ice when he saw the field technician put himself at risk by parking on the icy patch. According to appellant, the exigent circumstances “compelled [him] to do the most rational and effective thing possible—salt the ice immediately, because salt takes time to work.” In addition, appellant maintains that this case does not just present “an amorphous risk possibly realized in the distant future, but rather a distinct risk of slippery ice, the definite return of the van driver, and the fact that roughly 100 people ⁶³⁹ would traverse that area that day.” He insists that, if the court concludes that these circumstances do not “present a sufficient exigency,” then “no icy condition ever could, and Marylanders will be discouraged from remedying such icy conditions.” Further, appellant maintains that, because the Company had notice of the accumulation of water in the parking lot, and because the weather was cold, appellee had constructive and actual knowledge of the icy condition. Indeed, he maintains that because the incident occurred in March, “Muscatello had all winter to see the ice and realize that the pooling water problem was an icing problem too.” III. In Maryland, assumption of the risk is an affirmative defense that completely bars a plaintiffs recovery.

Crews, supra, 358 Md. at 640 , 751 A.2d 481 . 10 The assumption of the risk doctrine “is grounded on the theory that a plaintiff who voluntarily consents, either expressly or impliedly, to exposure to a known risk cannot later sue for damages incurred from exposure to that risk.” Id.; see also ADM P’ship v. Martin, 348 Md. 84, 90 , 702 A.2d 730 (1997). The requirements for assumption of the risk are well settled. ADM P’ship, 348 Md. at 90-91 , 702 A.2d 730 . “[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.” Id.; see also Neal v. Prince George’s County, 117 Md.App. 460, 466 , 700 A.2d 838 , vacated on other grounds, 348 Md. 329 , 703 A.2d 656 (1997), cert. denied after remand, 350 Md. 277 , 711 A.2d 869 (1998). ⁶⁴⁰ Assumption of the risk will apply only if “ ‘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 (1991) (quoting Kasten Constr. Co. v. Evans, 260 Md. 536, 544 , 273 A.2d 90 (1971) (emphasis in Kasten)).

An objective standard is used to determine whether the risk was appreciated and understood and whether the action was voluntary. Morgan State Univ. v. Walker, 397 Md. 509, 515 , 919 A.2d 21 (2007); ADM P’ship, 348 Md. at 91, 702 A.2d 730 . Unlike contributory negligence, assumption of the risk does not require a finding that the plaintiff was negligent. Schroyer, 323 Md. at 282-83 , 592 A.2d 1119 .

The fact that the plaintiff was aware of the risk, and voluntarily undertook the risk, is sufficient. Id. at 283 , 592 A.2d 1119 . Put another way, when an individual assumes a risk, the individual’s voluntary action showing a willingness to take a chance supersedes any duty the defendant owed the plaintiff to act reasonably for the plaintiff’s safety. Id. at 282 , 592 A.2d 1119 ; see also Prudential Secs. v. E-Net, Inc., 140 Md.App. 194, 226-27 , 780 A.2d 359 (2001).

Ordinarily, it is for the jury to determine whether a plaintiff knew of the danger, appreciated the risk, and acted voluntarily. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts § 68, 487 (5th ed.1984) (hereinafter Prosser and Keeton); see also Crews, 358 Md. at 644 , 751 A.2d 481 ; Miller v. Michalek, 13 Md.App. 16, 23 , 281 A.2d 117 (1971). “On the other hand, when it is clear that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue [concerning knowledge, appreciation of the danger and voluntariness] is for the court.” Schroyer, 323 Md. at 283-84 , 592 A.2d 1119 (citations omitted); see Crews, 126 Md.App. at 628-29 , 730 A.2d 742 . Notably, the danger of slipping on ice has been identified as one of the risks that anyone of adult age would ⁶⁴¹ appreciate. ADM P’ship, 348 Md. at 92, 702 A.2d 730 ; Schroyer, 323 Md. at 284 , 592 A.2d 1119 ; see also Allen v. Marriott Worldwide Corp., 183 Md.App. 460, 464 , 961 A.2d 1141 (2008) (plaintiff voluntarily assumed the risk of falling on invisible black ice because the surrounding circumstances suggested that ice might be present), cert. denied, 408 Md. 149 , 968 A.2d 1065 (2009).

In this case, appellant concedes that he knew of the danger and appreciated the risk of slipping on the ice. The crux of the parties’ disagreement pertains to the element of voluntariness. Appellant maintains that he