Poole v. Coakley & Williams Constr., Inc.

Decision Date27 October 2011
Docket NumberNo. 130,2010.,Sept. Term,130
Citation31 A.3d 212,423 Md. 91
CourtMaryland Court of Appeals
PartiesGeorge POOLE v. COAKLEY & WILLIAMS CONSTRUCTION, INC., et al.

OPINION TEXT STARTS HERE

Bruce M. Bender (Axelson, Williamowsky, Bender & Fishman, P.C., Rockville, MD), on brief, for Appellant/Cross–Appellee.

James X. Crogan (Krause, Fizer, Crogan & Lopez, Owings Mills, MD), on brief, for Appellees/Cross–Appellants.

Wanda G. Caporaletti (Anthony D. Dwyer of Law Office of Anthony Dwyer, Ellicott City, MD; Robert L. Hebb of Semmes, Bowen & Semmes, Baltimore, MD), on brief, for Appellees/Cross–Appellants.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, * MURPHY, ADKINS and BARBERA, JJ.GREENE, J.

In this case, we consider whether George Poole's (Appellant's”) personal injury claim for injuries suffered when he slipped and fell on black ice was properly resolved on summary judgment based on Appellant's alleged assumption of the risk. Based upon the record, we cannot say, as a matter of law, that Appellant had knowledge of the risk that resulted in injuries, when, in making a delivery during the course of his employment, he chose to walk through a stream of running water that flowed across a parking lot. Therefore, we hold that it was error for the trial court to resolve the question of assumption of the risk on summary judgment.

Facts and Procedural History

Appellant sued Coakley & Williams Construction, Inc. (“Coakley” or Appellee or “Cross–Appellant) and Forsgate Ventures II, LLC (“Forsgate” or Appellee) in the Circuit Court for Montgomery County on November 13, 2008. Appellant alleged that at approximately 11 o'clock in the morning on December 21, 2005, he was walking through the parking lot toward the back entrance of his place of employment, located at 22610 Gateway Center Drive in Clarksburg, Maryland (“the Gateway Center”), when he slipped, fell, and injured 1 himself on what he surmised to be “black ice” 2 while wadding through a stream of water that created a path through an otherwise icy parking lot. At the time of the incident, Appellant had been a courier, with some supervisory duties over the “transportation department,” for Diagnostic Pathology Services, Incorporated. Appellant's responsibilities included transporting lab specimens from off-site doctors' offices back to the laboratory located at the Gateway Center, a combination warehouse/office/strip center complex. Appellant described normally parking in spots located behind the building in one, long parking lot shared by employees of other businesses in the building. On the day of his injury, Appellant parked in this rear parking lot even though there was a front and side parking lot with spaces available to him and other employees of Diagnostic. Due to construction at the Gateway Center, Appellant alleged that water was being pumped into the parking lot where he was walking, resulting in a stream of water an inch deep and between two and three feet wide running through the lot into a drain. Appellant alleged that he slipped and fell on black ice, which he could not see and did not know was in the path that he chose to take through the otherwise wet and icy parking lot. As pertinent, we shall discuss additional facts regarding the circumstances of Appellant's injury infra.

Appellee Forsgate allegedly owned and controlled the Gateway Center building, and Appellee Coakley, itself or through its agents, allegedly pumped water out of pipes in a nearby construction site and drained water into the parking lot causing the black ice to form. Appellant alleged that Forsgate was negligent in its failure to maintain the parking lot, that Coakley was negligent in failing to prevent a stream of water from flowing onto the parking lot, thereby causing the black ice to form, and that both entities were negligent for failing to prevent, warn of, or remove the black ice. Coakley filed a third party complaint against Judd Fire Protection, LLC (“Judd” or “Cross–Appellee) alleging that Judd, as its subcontractor hired for maintenance on the building's fire sprinkler system, was responsible for the alleged water flow onto the property. Forsgate filed a third-party complaint against Diagnostic.

On October 15, 2009, nearly one year after filing the original complaint, Appellant filed an amended complaint naming Transwestern/Carey Winston, LLC (“Transwestern”) and The Brickman Group Ltd. LLC (“Brickman”) as defendants. The amended complaint alleged that as the management company for the Gateway Center, Transwestern had a duty to maintain the parking lot in a safe condition. Additionally, Appellant claimed that Brickman, the company under contract for snow and ice removal for the property, had the duty to properly remove snow and ice from the premises, including the duty to prevent, warn of, or remove black ice and water so that it was safe for all users of the building to traverse the parking lot. Brickman moved to dismiss the amended complaint for violation of the statute of limitations, and the motion was granted.

Prior to trial, Coakley, Forsgate, Transwestern, Diagnostic, and Judd moved for summary judgment.3 At a hearing on March 3, 2010, the trial judge granted summary judgment in favor of each of the original defendants and third-party defendants on the ground that Appellant had assumed the risk of his injury.4 The trial judge had before him for consideration on the issue: Appellant's deposition testimony, in which he responded to questions from counsel for Forsgate, Coakley, Judd and Diagnostic; Appellant's Affidavit; Answers to Interrogatories; and Complaint. From these documents, several allegations are consistent: that Appellant believed that he took a safe path to the building by choosing to walk through a running stream of water; that he did not believe ice could form beneath running water; that he had walked through the same stream at least 5–7 times during the week prior to his fall without incident; that the conditions in the parking lot were more wet and less icy on the morning of his accident than the night before; and that he did not see ice in the path he chose to take.

Appellant did not recall very much about the weather conditions on the day of his injury. He testified in his deposition that it was “a little overcast,” and possibly “freezing the day before” but he could not recall with clarity whether there had been freezing temperatures on the morning of his injury. Appellant testified that, the day before his injury, there was water and ice “in the same general area” where he fell and that he had noticed that area “was slippery” and even warned co-workers to be careful. His testimony indicated, however, that his awareness of the conditions on the lot differed between the night before and the day of the incident:

Q. Was it water and the same kind of general condition you observed the next morning?

A. It was a little different. It was—it was a little bit more runnier than it was the night before. Night before, it was, like, pretty much you could tell it was all ice.

Appellant testified that there “was ice everywhere,” but then clarified the location of visible ice in the parking lot and testified that he could not see ice in the path he ultimately chose to walk through:

Q. What did you observe of the lot as you were—when you pulled into it that morning, the condition of the lot?

A. It was pretty wet.

Q. Okay. Where was the ice located?

A. In that general area.

Q. Same area where you fell?

A. Right. There was spots of it all over and the loading dock—It was ice everywhere.

* * *

Q. Why did you feel that area was safe when you walked on it? A. Because it had running water. You couldn't really see any ice, just the running water.

* * *

Q. So just so the record's clear, could you see any evidence of ice in the area that you stepped when you—in the area that you fell in?

* * *

A. Well, there was flowing about an inch of water, so I assumed that it would be safe to walk through that area.

Q. The question is could you see any ice when you walk—

A No.

Q. —through the—

* * *

A. Could not see any.

Q. Okay. Now, so when you were asked before about ice being all over this general area, were the three areas that you pointed out the only areas that you can remember that there was ice in?

* * *

A. Yeah, it was vague that whole day, but I would not walk through the ice, I would walk through the water. I'd rather get wet than slip. So I walked through the ice—I mean through the water.

Appellant's earlier deposition testimony revealed:

Q. I mean, you're a grown man. You know that if you walk on ice that you could possibly slip.

A. Oh, yes, I avoided the ice. You could see some spots of ice and some not. Of course I wouldn't—

Q. You could possibly slip on ice, you were aware of that?

A. Of course. That's why I was kind of using the cars to kind of steady me through that area.

Q. And you saw that there was ice in that area, right?

A. There was ice everywhere out there.

Ultimately, Appellant used a diagram to illustrate the location of three patches of ice on the parking lot, the drain toward which the stream of water was flowing, the parked cars, and the building. Appellant was consistent in his description of the dimensions of the stream of water through which he walked. He described it as one inch deep and two to three feet wide.

Q. And when you say there's a flow of water, how much water are we talking about? How deep?

A. Probably about—I'd say about like that, because it didn't come over my shoes or anything .... say about an inch.

* * *

Q. I'm trying to get—how wide was the stream? Was it a foot, two feet, three feet?

A. Probably about two, three feet. It was a pretty good stream.

Q. So then what—you walked—when you walked in the stream, is that when you fell? Or was it beside the stream?

A. It was water everywhere, so you had to walk through it. There was water coming from all directions. And then I got, like I say, it was about there, and I started just to...

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