Thomas v. Panco Mgmt. of Maryland, LLC

Decision Date31 October 2011
Docket Number2010.,No. 133,Sept. Term,133
Citation423 Md. 387,31 A.3d 583
PartiesMary THOMAS v. PANCO MANAGEMENT OF MARYLAND, LLC, et al.
CourtMaryland Court of Appeals

OPINION TEXT STARTS HERE

Steven M. Weisbaum (The Weisbaum Law Firm, Rockville, MD), on brief, for petitioner.

Gregg E. Viola (Mark Anthony Kozlowski of Eccleston & Wolf, P.C., Hanover, MD), on brief, for respondents.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, * MURPHY, ADKINS and BARBERA, JJ.

GREENE, J.

Petitioner, Mary Thomas, filed a negligence action in the Circuit Court for Prince George's County against the owner of her apartment complex, Foxfire Associates Limited Partnership d/b/a Foxfire Apartments, and the apartment management company, Panco Management of Maryland, LLC (collectively Respondents). Petitioner's personal injury claim stems from a slip and fall incident on “black ice” 1 that occurred on the premises of the apartment complex. Respondents filed, and the court granted, a motion for judgment at the end of Petitioner's case based on Petitioner's alleged assumption of the risk. Based on the record before us, we cannot say, as a matter of law, that Petitioner assumed the risk of slipping and falling on black ice when she exited her apartment building. Therefore, we shall hold that the trial judge erred by failing to submit the issue of assumption of the risk to the jury for resolution.

FACTS AND PROCEDURAL HISTORY

On February 21, 2007, Petitioner lived in the Foxfire Apartments complex in Laurel, Maryland, with her daughter and granddaughter. Petitioner had resided in her apartment since 1998. The evidence produced at trial showed that the primary means of egress from the apartment complex to the parking lot where Petitioner kept her car was a central, covered flight of stairs, followed by four additional stairs that led to a sidewalk. There was also a separate, back exit from the central stairway that led to an “unpaved, dirt area.”

Petitioner testified that the front of her apartment complex did not get much direct sunlight. Consequently, in the winter months snow and ice would melt more slowly than in other locations. Petitioner also stated that she knew that when snow and ice melted, the sidewalk would become wet and that icy conditions could develop in freezing temperatures.

At approximately 8:30 a.m. on the morning of the injury, Petitioner left her apartment to go to work. Petitioner walked down the steps of the primary exit and over the sidewalk to the parking lot, where she noticed some patches of ice and snow. When she arrived at her vehicle, she had to hold onto it for support due to the surrounding conditions. When Petitioner returned from work between 2:30 and 3:00 p.m., the temperature had “warmed up” and she noticed that the ice and snow had melted but that the sidewalks were wet.

Petitioner left her apartment again at approximately 6:00 p.m. on the evening of the accident to drop off her granddaughter at a youth group meeting at a nearby church. Petitioner returned home at approximately 6:15 p.m. When she arrived home, Petitioner again noticed that the sidewalk in front of her apartment was wet, but she saw no sign of salt or melting pellets on the sidewalk or walkway. At approximately 8:00 p.m., Petitioner left her apartment to pick up her granddaughter from the meeting. Petitioner alleges that she had just stepped down from the last step of the stairway onto the sidewalk when she slipped and fell on ice, which she could not see and did not know was on the stairway. After the fall, Petitioner's neighbor, Jean Gillette, came outside to assist Petitioner. As Ms. Gillette stepped off of the last step onto the sidewalk she too slipped, but did not fall, on what she described as “black ice.” As a result of the incident, Petitioner suffered a compound fracture in her right leg. She filed a negligence action in the Circuit Court for Prince George's County against Respondents. At trial, Lawrence Dinoff, qualified as an expert in “forensic architecture,” described in his testimony the peculiar characteristics of the sidewalk that allowed it to foster the accumulation of ice when it became wet from melted snow. In addition to testifying that the high temperature on the day of the accident was fifty-one degrees, Mr. Dinoff stated that the temperature did not go below freezing until about “an hour before ... [Petitioner's] fall occurred.”

At the conclusion of Petitioner's presentation of her case, Respondents moved for judgement, asserting the defenses of contributory negligence and assumption of the risk. While the trial judge denied the motion as to contributory negligence, he granted the motion for judgment on the grounds that Petitioner had assumed the risk of her injury as a matter of law. 2 Noting that the Court of Special Appeals had decided Allen v. Marriott Worldwide Corp., 183 Md.App. 460, 961 A.2d 1141 (2008), cert. denied, Allen v. Marriott, 408 Md. 149, 968 A.2d 1065 (2009) the previous day, the trial court concluded that Petitioner had knowledge of the risk of slipping on black ice as a matter of law. In addition, as to the voluntariness requirement of the assumption of the risk defense, the court rejected Petitioner's argument that Rountree v. Lerner Dev. Co., 52 Md.App. 281, 447 A.2d 902 (1982), controlled, and ruled that Petitioner had encountered the danger voluntarily.

The Court of Special Appeals affirmed. Thomas v. Panco Mgmt. of Md., LLC, 195 Md.App. 245, 6 A.3d 304 (2010). Also relying on the reasoning of Allen, it concluded that Petitioner had knowledge of the risk of slipping on black ice. The court also concluded that Petitioner had assumed the risk of her injury voluntarily, and opined that Rountree was no longer good law. We granted Petitioner's writ of certiorari, Thomas v. Panco Mgmt., 418 Md. 190, 13 A.3d 798 (2011), which asked us to determine [w]hether the Court of Special Appeals erred when it affirmed the judgment of the Circuit Court concluding, as a matter of law, that the Petitioner knowingly and voluntarily assumed the risk of slipping on ‘black ice’ when she left her apartment....”

I.

We review the trial court's grant of Respondents' motion for judgment de novo, considering the evidence and reasonable inferences drawn from the evidence in the light most favorable to the non-moving party. See Md. Rule 2–519; C & M Builders, LLC v. Strub, 420 Md. 268, 290, 22 A.3d 867, 880 (2011); Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503, 16 A.3d 159, 163 (2011). Under Maryland Rule 2–519,3 when a defendant moves for judgment based on an affirmative defense, or upon the legal insufficiency of the plaintiff's evidence, the trial judge must determine if there is “any evidence, no matter how slight, that is legally sufficient to generate a jury question,” and if there is, the motion must be denied and the case submitted to the jury. C & M Builders, 420 Md. at 290, 22 A.3d at 880 (quoting Tate v. Bd. of Educ., 155 Md.App. 536, 545, 843 A.2d 890, 895 (2004)). It is only when the “facts and circumstances only permit one inference with regard to the issue presented,” that the issue is one of law for the court and not one of fact for the jury. Scapa, 418 Md. at 503, 16 A.3d at 163. An appellate court must review the grant or denial of a motion for judgment by conducting the same analysis as the trial judge. C & M Builders, 420 Md. at 291, 22 A.3d at 880; Tate, 155 Md.App. at 545, 843 A.2d at 896.

Thus, the grant of Respondents' motion for judgment based on assumption of the risk was appropriate only if all evidence and reasonable evidentiary inferences, viewed in a light most favorable to Petitioner, could have led only to the conclusion that she assumed the risk of her injuries. C & M Builders, 420 Md. at 291, 22 A.3d at 880. In arguing that the motion was improperly granted, Petitioner first contends that in Allen, the Court of Special Appeals misinterpreted Maryland's assumption of the risk doctrine and that the Allen holding, relied upon by the trial court and the intermediate appellate court in the instant case, invaded the province of the jury by allowing judges to weigh evidence and impute constructive knowledge of a risk to a plaintiff as a matter of law. Secondly, Petitioner argues that the courts' disavowal of Rountree and their interpretation of the voluntariness element in instant case will bar recovery for all tenants who slip and fall on ice in the common approaches and walkways of their apartment complexes. We agree and shall address each of these contentions in turn.

II.

In Maryland, there are three requirements that a defendant must prove to establish the defense of assumption of the risk: (1) the plaintiff had knowledge of the risk of the danger; (2) the plaintiff appreciated that risk; and (3) the plaintiff voluntarily confronted the risk of danger. ADM P'ship, 348 Md. at 90–91, 702 A.2d at 734. The question of whether the plaintiff had knowledge and appreciation of the particular risk at issue is ordinarily a question for the jury, “unless 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, 1123 (1991) (quotation omitted) (emphasis added). Where it is clear, however, “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, 592 A.2d at 1123 (emphasis added); accord Gibson v. Beaver, 245 Md. 418, 421, 226 A.2d 273, 275 (1967).

Allen v. Marriott Worldwide Corp., 183 Md.App. 460, 961 A.2d 1141 (2008), was decided during the course of the trial in instant case. As discussed, supra, both the trial court and the intermediate appellate court relied on that case to conclude that Petitioner had knowledge of the risk of slipping on ice as a matter of law. Allen has since been disavowed by this Court in Poole v. Coakley & Williams...

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