Law Updates

Maryland Court of Appeals Holds That Assumption of the Risk and Contributory Negligence are Separate Considerations for Jury

S&S Oil, Inc. v. Elaine W. Jackson,
Court of Appeals of Maryland, No. 122 | View pdf

(September 6, 2012) Jhanelle Graham, Law Clerk.

For more information, contact Paul Farquharson

In S&S Oil, Inc. v. Elaine W. Jackson, the Court of Appeals of Maryland held that where a reasonable juror could have concluded that Plaintiff, Elaine W. Jackson, assumed the risk of her injuries and that it was not unreasonable to assume that risk, the jury must be allowed the opportunity to address assumption of the risk separate from contributory negligence. Writing for the court, Judge Greene determined that where Defendant, S&S Oil, Inc., advanced the defense of assumption of the risk and there was sufficient evidence for a reasonable juror to conclude that Jackson either actually knew of and appreciated a risk, or must have known of and appreciated a risk, and voluntarily assumed that risk, the defense of assumption of the risk should be presented to the jury. Accordingly, the Court of Appeals reversed the intermediate appellate court’s decision and held that the lower court committed error in concluding that assumption of the risk and contributory negligence were “substantially the same question.”

On June 21, 2007, Jackson entered a gas station owned and operated by S&S Oil, Inc. The gas station was in the process of being renovated, which included renovating the flooring near the soda machine in the store portion of the building. Around five-o’clock in the evening, Jackson and her granddaughter drove to the station in order to buy motor oil. Jackson’s granddaughter asked for a soda, and Jackson walked into the building to locate the soda machine where she stepped onto uneven ground. Although Jackson did not fall, she testified that her “foot twisted [her] knee” resulting in injury to her right knee and lower back, which allegedly required several visits to doctors and outpatient surgery.

In 2008, Jackson filed a negligence suit against S&S Oil in the Circuit Court for Prince George’s County. During the trial, Jackson testified that she was not looking at the floor during her walk to the soda machine as she had just been inside the station store and therefore “trusted [her] environment.” She stated that after her injury, she could see that the area was “lumpy.” There was evidence, however, in the form of testimony from the station owner, 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 of Jackson’s injuries. Jackson testified that she did not see the caution tape, the warning sign, or the uneven floor, and that she had assumed that the floor surface was level.

The trial judge instructed that assumption of the risk, pursuant to Maryland Pattern Jury Instruction 19:13, was “going to be the issue [for the jury].” S&S Oil contested a particular jury instruction that stated: “Did Plaintiff Elaine Jackson assume the risk of her injury, or was she contributorily negligent, in the incident of June [21], 2007?” Rather, S&S Oil argued, there should have been two issues—one of contributory negligence and the other, assumption of the risk. The trial judge responded by striking the reference to assumption of the risk altogether, stating that “[I]f the question says negligent or contributorily negligent, it covers assumption of risk and contrib[utory negligence].” The jury returned a verdict in favor of Jackson, finding that S&S Oil was negligent and that its negligence caused Jackson’s injuries. As to the question of contributory negligence, the jury found that Jackson was not “negligent or contributorily negligent” under the circumstances and awarded Jackson $12,416.41 for past medical expenses and $131,000.00 in non-economic damages, for a total award of $143,416.41. The trial court entered judgment in favor of Jackson. On appeal, the Court of Special Appeals of Maryland concluded that “[i]f the jury determined that [Respondent] assumed the risk of her injury, it would necessarily find that she was contributorily negligent.” The intermediate appellate court, therefore, determined that the two issues were “the same substantial question” and it was proper to ask only about contributory negligence on the verdict sheet. The Court of Appeals of Maryland granted certiorari in this case, 424 Md. 628, 37 A.3d 317, to determine whether a trial court may combine a jury instruction on the affirmative defenses of contributory negligence and assumption of the risk. The appellate court answered this question in the negative.

The Court of Appeals of Maryland stated that assumption of the risk and contributory negligence are separate defenses. See Poole v. Coakley & Williams Constr., Inc., 423 Md. 91, 111, 31 A.3d 212, 224 (2011). Contributory negligence, as a matter of law, requires a finding that the negligent act of the plaintiff is “prominent, decisive and one about which ordinary minds would not differ in declaring it to be negligence.” McSlarrow v. Walker, 56 Md. App. 151, 161, 467 A.2d 196, 200 (1983). By contrast, a plaintiff’s assumption of a reasonable risk is not contributorily negligent. The court explained that a risk is unreasonable where the risk of danger is out of proportion to the interest a plaintiff is seeking in assuming the risk, such as when a plaintiff “dashes into a burning building to save his hat.” Schroyer v. McNeal, 323 Md. 275, 281, 592 A.2d 1119, 1122 (1991) (quoting Restatement (Second) of Torts § 496A cmt. d, at 562). Thus, these affirmative defenses may be presented as one (1) question to the jury only when the risk assumed is unreasonable.

Here, the court stated that the danger Jackson allegedly assumed walking in an area under renovation was not an extreme danger akin to entering a burning building. Reasonable minds might have concluded that walking where there were renovations on the floor was not out of proportion with Jackson’s interest in obtaining a soda for her granddaughter. Combining the two defenses under one question, therefore, improperly took that opportunity away from the jury. For this reason, the appellate court held that (1) the Court of Special Appeals of Maryland was incorrect in concluding that assumption of the risk and contributory negligence were “substantially the same question;” (2) the verdict sheet, as written, would cause confusion over which defenses to consider and mislead a reasonable juror to fail to consider the defense of assumption of the risk; (3) failing to adequately present assumption of the risk constituted error because Jackson had a right to present the defense to the jury; and (4) that error prejudiced Jackson’s case. The court reversed the trial court’s decision and remanded the case to the Circuit Court for Prince George’s County for a new trial.