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Editorial Advisory Board: Implied assumption of the risk defense

Under Maryland personal injury law, defendants alleged to have negligently caused harm can not only dispute the plaintiff’s claim but can raise affirmative defenses against the plaintiff.  In Maryland the defense that gets the most attention is the rule of “contributory negligence,” under which in Maryland, as in three other states (and the District of Columbia), any negligence by the injured plaintiff, even if much less than the defendant’s negligence, bars that plaintiff’s claim. This editorial, however, will discuss another, lesser-known affirmative defense, implied assumption of the risk, which also completely bars a plaintiff’s claim, based on the plaintiff’s conduct, no matter how negligent the defendant was.

Implied assumption of the risk can be applied to risks that are inherent in a sport or recreational activity or to risks created by a defendant’s negligence. This editorial will discuss the post-negligence risks; a plaintiff’s claim against a negligent defendant can be barred even if the plaintiff acted reasonably in taking the risk. Using assumption of the risk to bar even a reasonable plaintiff’s claim might be unique to Maryland law. This rule stems from a 2000 Maryland Court of Appeals decision dismissing a claim by a Washington Gas employee injured in an explosion while he was repairing a negligently caused gas leak.  The defendants argued that the Maryland Court of Appeals could dismiss the claim because the risk was inherent to the employee’s occupation. Instead, the Court of Appeals dismissed the plaintiff’s claim because the plaintiff impliedly assumed the risks caused by the defendant’s negligence. The Court of Appeals found defendant proved the elements of that defense by proving plaintiff knew and understood the risks and voluntarily chose to take them.

The implied assumption of the risk defense sometimes overlaps with contributory negligence, when a plaintiff was unreasonable in taking the risk. But Maryland courts have clearly stated that the two defenses are separate and distinct, and that implied assumption of the risk might bar the claim of a plaintiff who reasonably assumed the risk caused by defendant’s negligence.

With on-the-job injuries like the Washington Gas employee’s, employees can obtain workers’ compensation benefits, and neither contributory negligence nor assumption of the risk will be accepted defenses. But Maryland courts have barred claims by many plaintiffs in many other settings on the ground that the plaintiff assumed any risk(s) allegedly caused by a defendant’s negligence, as long as the plaintiff knew and understood the risk(s) caused by a defendant’s alleged negligence and proceeded to take them without coercion.  For example, in at least two slip-and-fall cases in 2019, the Maryland Court of Special Appeals found in unpublished decisions that the plaintiff had assumed the risk of tripping over or slipping on something on a surface, even if that risk was created by unreasonable conduct by a defendant.

In both these decisions, the court upheld trial court grants of summary judgment on the implied assumption of the risk issue, even though in each case the plaintiff denied knowing and understanding the risk. The appellate court disregarded the denials on the ground that under the facts in evidence, any reasonable person would have known and understood the risk. As the two decisions were unpublished, they cannot be cited as precedent under Maryland court rules. But the decisions do indicate the views of at least six Maryland judges, as three different judges were on each panel in the two cases.

The approach of Maryland courts in these and other cases, where summary judgment is granted and upheld on implied assumption of risk(s) caused by a defendant’s negligence, contrasts with the approach of courts in the neighboring jurisdiction of Virginia. This is of interest not only because Virginia is a neighbor, but because, like Maryland, it is among the four states that have retained contributory negligence as a complete defense, and Virginia is a jurisdiction defenders of that contributory negligence rule have pointed to for support. In Virginia when a defendant claims a plaintiff assumed any risk(s) caused by defendant’s negligence, and the plaintiff disputes any element of that defense, Virginia courts almost always allow that issue to go to a jury. The Maryland courts’ approach to implied assumption of the risk also contrasts with these courts’ usual treatment of issues regarding whether a defendant has breached the standard of reasonable care, which in the pages of this paper has in the past been described as “[going] almost as far as any other jurisdiction in holding that meager evidence of negligence is sufficient to carry the case to the jury.”

In any event, the implied assumption of the risk defense will continue to be important in many Maryland cases. So, both plaintiffs’ and defense lawyers should themselves “assume” the responsibility of “knowing and appreciating” what Maryland courts have said and are saying about it.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Michael Hayes

James Haynes

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

Vanessa Vescio

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.

 

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