ADM Partnership v. Martin

• Decision Date: 01 September 1996
• Docket Number: No. 5,5
• Citation: 348 Md. 84,702 A.2d 730
• Parties: ADM PARTNERSHIP et al. v. Keen Tykenko MARTIN et al. ,
• Court: Maryland Court of Appeals

Page 84

348 Md. 84

702 A.2d 730

ADM PARTNERSHIP et al. v. Keen Tykenko MARTIN et al.

No. 5, Sept. Term, 1996.

Court of Appeals of Maryland.

Nov. 19, 1997.

Edward J. Brown (McCarthy, Wilson & Ethridge, on brief), Rockville, for petitioners.

Bruce M. Bender (Jeremy K. Fishman, Van Grack, Axelson & Williamowsky, P.C., on brief), Rockville, for respondents.

Argued before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI ^* and RAKER, JJ., and ROBERT C. MURPHY, Judge (retired), Specially Assigned.

BELL, Chief Judge.

The issue this case presents is whether the "voluntariness" element of the assumption of risk defense is met when an employee encounters a known risk while performing a responsibility of her employment, but, nevertheless, based solely on her subjective belief that the failure to fulfill that responsibility may result in adverse economic consequences to her employer and ultimately to herself, proceeds to confront the risk, sustaining, in the process, serious bodily injury. We shall answer in the affirmative.

In the case sub judice, Keen Tykenko Martin (Martin) and American Motorist Insurance Company, (collectively, the respondents) ¹ filed, in the Circuit Court for Montgomery County an action sounding in negligence against ADM Partnership, Inc. and its three general partners, Scott L. MacDonald, Joe C. Adams, and Franklin J. Duane, (collectively, the petitioners), for injuries Martin sustained when she slipped and fell on an ice and snow covered walkway as she made a delivery at a building the petitioners owned. At the conclusion of the respondents' case, the circuit court granted the petitioners' motion for judgment and entered judgment accordingly. Viewing the evidence in the light most favorable to the respondents, the court found that the evidence conclusively established that Martin knowingly and voluntarily assumed the risk of falling on a walkway covered with ice and snow. The respondents appealed that judgment to the Court of Special Appeals, which, in a reported opinion, Martin v. ADM Partnership, Inc., 106 Md.App. 652, 666 A.2d 876 (1995), reversed. This Court granted the petitioners' petition for the writ of certiorari, 341 Md. 719, 672 A.2d 659 (1996). For the reasons set forth herein, we shall reverse the judgment of the Court of Special Appeals and affirm the judgment of the circuit court.

I.

The pertinent facts are not in dispute. On the morning of March 8, 1989, Martin, employed as a delivery person for Ideal Reprographics, Inc., a blueprint reproduction company, was assigned to deliver blueprints to a business located in Rockville, Maryland, at 98 Church Street, a property owned by the petitioners. Although it had snowed some nineteen hours earlier and the precipitation had ceased, ice and snow surrounded the building, particularly the parking lot directly in front of the building and the entrance walkway. Martin testified at trial that she observed that there was ice and unplowed snow surrounding the building when she arrived at the building, and that she wondered why the walkways had not been cleared. Despite the condition of the parking lot and the entrance walkway, Martin testified that, because she observed that there were other vehicles in the parking lot, that people were working inside the building, and that there were footprints in the snow and ice, suggesting that there was a safe means of ingress and egress to and from the building, she felt that she could safely enter the building. Martin also testified that, although her employer never told her that she could lose her job if she did not make the subject delivery, or any other deliveries she was assigned to make, she believed that she had no choice but to deliver the blueprints. As she saw it, if the delivery was not made, Ideal Reprographics could have lost that delivery contract, with the consequence that her employment could then have been terminated.

To retrieve the blueprints for delivery, Martin exited her vehicle and started around to the passenger side. As she proceeded, Martin slipped on the ice in the parking lot, but avoided falling to the ground by grabbing hold of her vehicle. Having recovered without injury, Martin walked across the ice covered walkway without further incident and delivered the blueprints. She then retraced her steps, exiting the building using the same walkway. As she left the building, Martin once again slipped. This time, however, unlike the first incident, she fell and sustained serious injury to her lower back.

The respondents' suit against the petitioners alleged that the petitioners were negligent in the following respects: (1) failing to maintain a safe walkway, (2) failing to remove the snow and ice from the parking lot and walkway areas as required by local law, and (3) failing to provide adequate warning. After the close of the respondents' case-in-chief, the petitioners moved for judgment. Relying on Schroyer v. McNeal, 323 Md. 275, 592 A.2d 1119 (1991), they argued that Martin assumed the risk of walking and falling on the ice and snow covered parking lot and entrance walkway, thus, requiring that judgment be entered in their favor on that ground. The respondents answered and denied that Martin knowingly assumed the risk of her own injuries. They pointed out, in that regard, that Martin saw footprints in the snow indicating that other people had safely traversed the walkway. The respondents also argued that Martin did not voluntarily assume the risk because she believed that, if the blueprints were not delivered, both she and her employer would have experienced adverse economic consequences.

The trial court rejected the respondents' arguments. Applying an objective standard, the trial judge observed, "Everybody knows that walking on ice is slippery. The taking of the risk--the assumption of the risk is with that knowledge, because other people have traversed it, apparently, for the footprints, or for whatever reason assumes that I can do it if I walk carefully." Additionally, the court found that Martin's admission that she had seen the icy walkways and that she had slipped on the ice prior to the fall in which she was injured indisputedly support a finding that she was aware of the risk. Addressing the voluntariness of Martin's conduct, the trial court concluded that, despite her fear of termination or of her employer's loss of the delivery contract, Martin nevertheless made a calculated decision, premised on the fact that others had safely traversed the ice and snow covered parking lot and entrance walkway, to take a chance and carefully walk across the walkway.

Reversing, the Court of Special Appeals held that the petitioners were not entitled to judgment as a matter of law because the evidence, viewed in the light most favorable to the respondents, demonstrated an issue of fact for the jury as to whether Martin assumed the risk of her injuries. Specifically, the court concluded that Martin's belief that she would have suffered negative repercussions at her job had she failed to make the delivery as directed presented a factual dispute as to whether her actions were voluntary. ²

II.

In Maryland, it is well settled that in order to 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. Liscombe v. Potomac Edison Co., 303 Md. 619, 630, 495 A.2d 838 (1985); see also Schroyer v. McNeal, 323 Md. 275, 283, 592 A.2d 1119, 1123 (1991); Odenton Dev. Co. v. Lamy, 320 Md. 33, 43, 575 A.2d 1235, 1239 (1990); Hooper v. Mougin, 263 Md. 630, 635, 284 A.2d 236, 239 (1971); McClearn v. Southeast Concrete Co., 253 Md. 135, 138-39, 251 A.2d 896, 898-99 (1969); Gibson v. Beaver, 245 Md. 418, 421, 226 A.2d 273, 275 (1967); Burke v. Williams, 244 Md. 154, 158, 223 A.2d 187, 189 (1966); Evans v. Johns Hopkins Univ., 224 Md. 234, 238-39, 167 A.2d 591, 593-94 (1961); Finkelstein v. Vulcan Rail & Const. Co., 224 Md. 439, 442, 168 A.2d 393, 394-95 (1961); Velte v. Nichols, 211 Md. 353, 356, 127 A.2d 544, 546 (1956); Bull S.S. Lines v. Fisher, 196 Md. 519, 525-26, 77 A.2d 142, 146-47 (1950); Warner v. Markoe, 171 Md. 351, 359-60, 189 A. 260, 264 (1937). "The doctrine of assumption of 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 [her] and to take [her] chances from harm from a particular risk." Rogers v. Frush, 257 Md. 233, 243, 262 A.2d 549, 554 (1970). See also W. Page Keeton, Prosser and Keeton on the Law of Torts § 68 at 490 (5th ed. 1984) (hereinafter Prosser and Keeton ). Assumption of risk means "voluntary incurring that of an accident which may not occur, and which the person assuming the risk may be careful to avoid after starting." Schroyer, 323 Md. at 281, 592 A.2d at 1123. Thus, if established, it functions as a complete bar to recovery because "it is a previous abandonment of the right to complain if an accident occurs." Warner, 171 Md. at 360, 189 A. at 264.

"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." Gibson, 245 Md. at 421, 226 A.2d at 275. 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." Schroyer, 323 Md. at 283-4, 592 A.2d at 1123; see also Gibson, 245 Md. at 421, 226 A.2d at 275 (quoting W. Prosser, Handbook of the Law of Torts § 55 at 310 (2nd ed.)); Evans, 224 Md. at 238-39, 167 A.2d 591. 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...