In the 2008 case of Allen v. Marriott, the Court of Special Appeals came down with a frigid decision for plaintiffs who are injured when falling on black ice. The Court of Appeals denied cert. which means the case is the current law in Maryland.
The facts of Allen v. Marriott are as follows:
David Allen and his wife were guests of a Marriott hotel from Feb. 3 -5. On the morning of Feb. 5, the parties checked out of the hotel. Mrs. Allen went to the hotel’s parking lot to retrieve their car, while Mr. Allen was checking out. She drove the car close to the front entrance of the hotel. Mr. Allen walked out of the main entrance, and then proceeded to walk along the (salted) sidewalk toward their vehicle. As Mr. Allen stepped off of the curb, pulling a wheelie suitcase, he slipped and fell on what turned out to be unseen “black ice.”
The issue the presented to the Court was whether a reasonable person under an objective standard, knowing what the Plaintiff knew, would have been aware of the risk and therefore assumed the risk.
In reaching its holding, the Court discussed the following:
The Maryland law on the defense of assumption of risk in cases involving slipping and falling on ice or snow is totally contained within the three decisions of Schroyer v. McNeal, ADM Partnership v. Martin, and Morgan State Univ. v. Walker. In all three cases, the Court of Appeals held that the plaintiffs, as a matter of law, were aware of and voluntarily assumed the risk, based on the circumstantial evidence of their surroundings.
• In Schroyer, the plaintiff injured herself when she walked out onto a parking lot covered with ice and snow. She was aware that ice and snow were slippery, and therefore was aware of the danger posed by an ice and snow covered parking lot. By voluntarily choosing to traverse it, albeit carefully, she intentionally exposed herself to a known risk.
• In ADM, the plaintiff was injured when she slipped and fell on an ice and snow-covered walkway as she returned to her vehicle. The Court of Appeals said that, although it had snowed some 19 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. The plaintiff was aware of the ice and unplowed snow surrounding the building, but she felt that she could safely enter the building. The Court stated that “there are certain risks which anyone of adult age must be taken to appreciate: the danger of slipping on ice” is one of them. A person of normal intelligence would have understood the danger, therefore the issue is for the court.
• In Morgan State, the plaintiff went to visit her daughter on the campus of MSU several days after a heavy snowstorm. After driving across a snow and ice-covered parking lot, the plaintiff walked across the ice, fell, and fractured her leg. The Court of Appeals held that the plaintiff “knowingly and voluntarily walked across a snow and ice covered parking lot and injured herself, she assumed the risk of her injuries as a matter of law.” The Court reiterated that the danger of slipping on ice is one of the risks which any one of adult age must be taken to appreciate.
THIS CASE, differs from the cases above because Mr. Allen slipped on “black ice” (essentially invisible ice), not “white ice” (essentially visible ice) as in the other cases. Therefore, the appellant’s argument is simple: “if a plaintiff looks and cannot see the hazard, the plaintiff thereby has no knowledge of the risk.”
Marriott argued to the Court that that knowledge springs not only from direct sense perception, but from the drawing of inferences from circumstantial evidence. The facts relied on by Marriott are not limited to the observations on the morning of the accident:
• When the Plaintiff and his wife arrived at the hotel on Feb. 3, they saw snow and ice in the parking lot. When driving on that parking lot they encountered slippery conditions.
• On Feb. 4, the Plaintiff also saw snow and ice on the premises of the hotel.
• The Plaintiff had a general familiarity with the phenomenon of “black ice.” He
acknowledged the possibility of “black ice” forming on the premises, as he was aware of the danger of melting and refreezing.
• The Plaintiff acknowledge that most of the snow and ice started melting, and that he was sure the temperature dropped to below freezing at some point.
• On the morning of the fall, appellant had reason to believe the sidewalk was salted or otherwise treated, but he had no reason to believe that the parking lot itself had been treated.
• There was visible ice (white ice), “right up as soon as you stepped off of the sidewalk” and the parking lot was slippery for his vehicle the day before.
The Court stated that when the bits and pieces of information about the appellant’s awareness of risk came together, they were enough, objectively, to achieve critical mass. To assume a risk as a matter of law, a plaintiff, objectively speaking, must have reason to know of the risk (slipping on ice). The required knowledge is not knowledge that ice is actually present. It is the appreciation of the reasonable likelihood that, under the weather conditions and other circumstances, ice might well be present. The assumed risk is not that of stepping on ice per se. The assumed risk is that of stepping onto an unknown surface with an awareness that it might well be icy.
The Court’s Holding:
The Plaintiff assumed the risk when he voluntarily ventured away from the main entrance and into the parking lot, because objectively, a reasonable person appreciates the likelihood that, under these weather conditions and other circumstances, ice might be present, even though it is not visible.
As a result, the Plaintiff is completely barred from making any recovery. Unfortunately, many Marylanders are seriously injured when falling on ice. This case makes a recovery very difficult and further demonstrates the necessity for victims to hire a lawyer who understands the law, the issues, and comes up with a well thought-out path to recovery at the onset of the case.
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