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Court of Appeals limits defense to slip-and-fall suits

With winter approaching, Maryland’s highest court has issued back-to-back decisions that limit a key defense against lawsuits by people who slip and fall on ice.

In the first decision, the Court of Appeals said the “assumption of risk” defense applies only when the injured person actually knew ice was present, not just that the ground might be slippery.

And on Monday, the court said tenants generally do not voluntarily assume the risk of a poorly maintained sidewalk simply by entering or leaving their homes in bad weather.

The unanimous decisions stop short of imposing strict liability for an icy patch — the plaintiff must still prove negligence — but they substantially affect the defense’s ability to keep the case from going to trial, the plaintiffs’ lawyers said.

Prior to these decisions, judges had broad discretion to dismiss slip-and-fall cases without trial, based on the principle that the plaintiff should have known that ice is slippery, the attorneys said.

Now, defendants must show that the plaintiff actually knew of a hazard and voluntarily confronted it, despite having a safer option.

The actual-knowledge requirement is particularly significant in cases involving “black ice,” which by definition is difficult to see, said Bruce M. Bender, a lawyer for plaintiff Gregory Poole.

“It’s a huge victory for the citizens of the state of Maryland and the individuals who get injured in these black-ice cases,” said Bender, of Axelson, Williamowsky, Bender & Fishman PC in Rockville.

Poole claims a construction company and the owner of the parking lot at his Clarksburg office failed to clear the ice on which he slipped on Dec. 21, 2005, causing “severe and permanent injuries,” according to his lawsuit.

The second plaintiff, Mary Thomas, suffered a compound fracture in her right leg on Feb. 21, 2007. She said her landlord failed to salt the sidewalk outside her Laurel apartment.

Neither case went to trial.

Montgomery County Circuit Judge Ronald B. Rubin granted summary judgment to Coakley & Williams Construction Inc. and Forsgate Ventures II LLC in Poole’s case, noting the plaintiff had acknowledged he was aware of freezing temperatures that day and sought to avoid icier patches by walking a more circuitous route to his office.

But Poole contended he slipped on black ice, raising the question of whether he knew it was there, the Court of Appeals said. That determination must be made by a jury after trial, Judge Clayton Greene Jr. wrote for the high court last week.

“[I]n order for a plaintiff to have assumed the risk of his or her injuries as a matter of law, we require that a plaintiff must have known that the risk was actually present, not that he or she would, should or could have known that the risk might well be present,” Greene wrote.

James X. Crogan, the appellate attorney for Coakley & Williams and Forsgate, did not return telephone messages seeking comment. He is with Krause Fizer Crogan Lopez in Owings Mills.

In the second case, Thomas had successfully traversed the sidewalk when she went to work that morning, came home that evening and took her granddaughter to a church event around 6 o’clock that night. She fell on her way to pick up the girl around 8 o’clock.

Prince George’s County Circuit Judge Sean D. Wallace ruled Thomas assumed the risk of injury by venturing out on that wet, cold night. An intermediate appellate court affirmed.

Those decisions essentially relieved landlords of having to clear ice and compelled tenants to say, “I guess we’re just going to stay home,” said Steven M. Weisbaum, Thomas’ attorney

“It doesn’t make any sense,” Weisbaum said. “It’s draconian.”

The Court of Appeals agreed with him, noting that landlords have a duty to maintain a reasonably safe means to and from the leased premises.

“A tenant may not be forced to surrender such a valuable legal right simply because the landlord’s negligence has threatened him with harm if the right is exercised,” Greene wrote for the high court on Monday.

Gregg E. Viola, attorney for Foxfire Associates LP and Panco Management of Maryland LLC, did not return telephone messages seeking comment. Viola is with Eccleston and Wolf PC in Hanover.

At trial, the high court said, Thomas will have to show the landlord or management company negligently failed to keep the sidewalk safe. They, in turn, can escape liability by showing either that Thomas had an alternate, reasonably safe route but did not take it, or negligently contributed to her injury.

Those issues are for a jury to decide, the court said.

“[I]t is only when the tenant has a reasonably safe alternative path that there exists a ‘choice of risks’ sufficient to demonstrate a tenant’s consent to relieve the landlord of this duty when the tenant chooses to traverse the more dangerous route,” Greene wrote.



Thomas v. Panco Management of Maryland LLC et al., CA No. 133 Sept. Term 2010. Reported. Opinion by Greene, J. Argued June 1, 2011. Filed Oct. 31, 2011.


Did the circuit judge err in ruling that a tenant knowingly and voluntary assumed the risk of slipping on an icy sidewalk?


Yes; the issue of voluntariness is for a jury to decide.


Steven M. Weisman for petitioner; Gregg E. Viola for respondent.

RecordFax # 11-1031-20.



Poole v. Coakley & Williams Construction Inc., CA No. 130 Sept. Term 2010. Reported. Opinion by Greene, J. Argued May 4, 2011. Filed Oct. 27, 2011.


Did the circuit judge err in granting summary judgment based on assumption of risk defense that plaintiff had constructive knowledge that ice was present?


Yes: plaintiff must have actual knowledge of risk to warrant summary judgment.


Bruce M. Bender for petitioner; James X. Crogan for respondent.

RecordFax # 11-1027-26.