Maryland assumption of risk defense requires actual knowledge of risk

November 4, 2011
By Brassel, Alexander & Rice, LLC on November 4, 2011 3:19 PM |

snowy path.jpgTwo recent plaintiff-friendly Maryland Court of Appeals decisions have refined the "assumption of risk" defense that is often raised in personal injury and accident cases.

Our Annapolis Maryland Accident Attoneys have years of experience representing plaintiffs in personal injury cases as a result of accidents, including slip and fall cases.

Both cases, Poole v. Coakley, and Thomas v. Panco Management, concern submission of personal injury cases to the jury in light of the defense of assumption of risk. In both cases, the trial judge did not submit the issue of negligence to the jury. The Maryland Court of Appeals held that both trial judges erred in their rulings.

The Maryland Civil Pattern Jury Instructions currently defines assumption of the risk as follows: "A Plaintiff cannot recover if the plaintiff has assumed the risk of injury. A person assumes the risk of an injury if that person knows and understands the risk of an existing danger or reasonably should have known and understood the risk of an existing danger, and voluntarily chooses to encounter the risk."

After these two decisions, the Civil Pattern Jury Instruction will likely be modified to indicate that a person assumes the Risk only if he actually knew of an existing danger, not just that he "would, should, or could" have known of an existing danger.

The Poole case concerned the liability of a construction company for the injuries of a plaintiff who slipped on "black ice" while walking through a stream of water through an otherwise icy parking lot. The nature of the "black ice" was such that the plaintiff did not actually know that the danger was present, and therefore the Court of Appeals held it was error to grant the defendant's Motion for Summary Judgment on the issue of assumption of risk.

The Thomas case concerned the liability of an apartment management company for a tenant's injuries after she slipped on "Black Ice." Her testimony was that the "black ice" was positioned near the only entry and exit for her building. The trial judge granted Defendant's Motion for Judgment, holding that the Plaintiff assumed the risk of her injuries. The Court of Appeals reversed holding that Plaintiff's knowledge of the risk of slipping on black ice, and the voluntariness of her conduct were questions of fact to be resolved by the jury, rather than the trial judge.

Both cases will likely be retried, where a jury will determine whether the defendants were negligent.

If you have suffered an injury as a result of an accident caused by another person's negligence, contact the Brassel, Alexander & Rice for a free consulation.