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Top court orders new trial for soda vendor

The Court of Appeals has ordered a new trial and overturned a $140,000 verdict for a woman who slipped and injured herself in a gas-station store owned by S&S Oil Inc.

The jury should have been given the chance to consider whether the woman, Elaine W. Jackson, had assumed risk when entering the gas station, which was under renovations.

On the jury’s verdict sheet, jurors were only asked about contributory negligence. The decision by the judge not to include assumption of risk on the verdict sheet could have altered the case’s outcome, the Court of Appeals said in its opinion.

“A reasonable juror might have concluded, despite [Jackson’s] claim that she lacked knowledge of the danger, that Respondent saw that the area where she intended to walk was under construction, understood the risk of being injured by the hazards caused by the construction and voluntarily assumed that risk,” Court of Appeals Judge Clayton Greene Jr. wrote in the court’s opinion.

The attorney for S&S Oil Inc., Robert B. Hetherington of McCarthy Wilson LLP in Rockville and the attorney for Jackson, William L. Kohler of the Allan Sosslau Law Office in Greenbelt, did not return calls for comment.

Jackson went with her granddaughter to a gas station in June 2007. Jackson paid for her gas at the register, but when she walked back to her car, her granddaughter asked for a soda. Jackson returned, went back in, approached the soda machine and mis-stepped on the floor, which was being renovated. She twisted her right knee, requiring outpatient surgery and multiple doctor visits.

Jackson filed a negligence lawsuit against S&S Oil in 2008. The company said the area was marked with orange and red caution tape and a “Watch Your Step” sign, but Jackson said she did not see them.

A Prince George’s County Circuit Court judge gave the jury oral instructions on assumption of risk and its meaning, but the verdict sheet made no mention of it. After several redrafts of the verdict sheet, the final question asked: “Was Plaintiff Elaine Jackson negligent or contributorily negligent in the incident of June 21, 2007?”

“When the trial judge altered the verdict sheet and removed any explicit reference to assumption of the risk, the trial court nullified the effect of the separate oral instructions and created confusion,” Greene wrote.

The jury awarded Jackson a total of $143,416 in damages.

S&S Oil appealed, and the Court of Special Appeals affirmed the circuit court’s decision, finding contributory negligence and assumption of the risk presented “the same substantial question.”

The Court of Appeals, however, disagreed. While only one instruction is required if the assumption of risk is clearly so unreasonable that it amounts to negligence — for example, running into a burning building to save one’s hat, the court said — in this case, the two were “separate and distinct defenses.”

“Because determining that [Jackson] assumed the risk of her injuries did not necessarily require the jury to find that Respondent was contributorily negligent, the jury’s verdict in this case, that [Jackson] was not contributorily negligent, left open the possibility that the jury might have still determined that [Jackson] assumed the risk of her injuries,” Greene wrote. “Combining the two defenses under one question improperly took that opportunity away from the jury.”



S&S Oil Inc. v. Elaine W. Jackson, No. 122, Sept. Term 2011. Argued May 8, 2012. Decided Sept. 25, 2012. Opinion by Greene, J.


Did the Circuit Court err when it declined to instruct the jury on the assumption of risk defense?


Yes, overturned. Assumption of risk is a separate and distinct defense from contributory negligence.


Robert B. Hetherington of McCarthy Wilson LLP, for petitioner; William L. Kohler of Allan Sosslau Law Office, for respondent.

RecordFax #12-0925-22 (30 pages).

One comment

  1. Even though she had knowledge of the risk and possible danger and appreciated the risk, defense can still bring into question whether she voluntarily assumed the risk of injury, an exception to the assumption of risk rule. I will be curious to find out if that argument gets made.