Maryland Court of Appeals overturns verdict where judge failed to give Assumption of the Risk Jury Instruction

September 28, 2012
By Brassel, Alexander & Rice, LLC on September 28, 2012 2:25 PM |

danger.jpgThe Maryland Court of Appeals, earlier this week, overturned the Circuit Court for Prince George's County, finding that the Judge erred by failing to instruct the jury on the issue of Assumption of Risk in a personal injury trial.

Our Annapolis Maryland Injury Attorneys have years of experience representing those who have been injured by the negligence of others.

In S&S Oil v. Jackson, the Plaintiff sought personal injury damages as a result of injuries she claimed she sustained while stepping on an uneven flooring surface in a gasoline service station undergoing renovation. The service station's defense was based in part of the allegation that the Plaintiff was contributorily negligent and that the Plaintiff assumed the risk of injuries.

At trial, the station owner testified that there was orange or red caution tape across part of the construction area and a "Watch Your Step" sign somewhere in the immediate vicinity. The Plaintiff testified that she did not see either the caution tape or the warning sign and that she assumed the floor surface was level.

Traditionally, at the close of evidence, the jury is read jury instruction, including an instruction on the issue of Assumption of Risk, if the trial testimony has generated the issue. The most recent jury instruction for Assumption of Risk, as published in the Maryland Civil Pattern Jury Instructions, Fourth Edition, reads 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.

In light of two 2011 Court of Appeals decisions, Poole v. Coakley & Williams Construction, 423 Md. 91 (2011) and Thomas v. Panco Mgmt. of Maryland, LLC, 423 Md. 387 (2011), however, the Maryland Pattern Jury Instructions likely needs revision. Both of these cases make clear that a Plaintiff assumes the risk of injury if the Plaintiff knew, or must have understood the danger. While at first blush the difference between "should have" or "must have" understood the danger may seem insignificant, the latter requires proof that "a person of normal intelligence in the position of the plaintiff must have understood the danger."

In the Jackson case, the Court held that an instruction for assumption of risk should have been juxtaposed with an instruction for contributory negligence. Contributory negligence requires proof that the plaintiff's negligence is a cause of plaintiff's injury. Any proof that the Plaintiff's negligence caused or contributed to her injury is an absolute bar to recovery.

While there is undoubtedly an overlap between contributory negligence and assumption of risk, the Court of Appeals found the judge erred in finding the concepts synonymous and only submitting the question of contributory negligence to the jury. In doing so, the Court found that Defendant was prejudiced in that it was denied the right to present the defense to the jury.

The Court highlighted the differences between the two theories: ... [T]he facts may warrant conflicting results under the theories, for example, a plaintiff who proceeds reasonably, and with caution, after voluntarily accepting a risk, not unreasonable in itself, may not be guilty of contributory negligence, but may have assumed the risk." See Thomas, 423 Md. at 418-419.

While the jury found that the Plaintiff was not contributorily negligent, the Court found that the Defendant properly generated the defense of assumption of risk, and by failing to place the assumption of risk issue on the verdict sheet the Defendant was prejudiced.

The Case will now be remanded to the Court of Special Appeals with instruction to remand the case to the Circuit Court for Prince George's County for a New Trial.

If you have been injured by another's negligence, contact the Brassel, Alexander & Rice for a free consultation.