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Assumption Of The Risk Standard Restricted In Black Ice Case

Poole v. Coakley & Williams Constr. Inc.
(Md.) (Oct. 27, 2011)

by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (

The Court of Appeals of Maryland considered whether Gregory Poole’s (“Mr. Poole”) personal injury claim for injuries suffered when he slipped and fell on black ice was properly resolved on summary judgment, based on his alleged assumption of the risk. Mr. Poole sued Coakley & Williams Construction, Inc. (“Coakley”) and Forsgate Ventures II, LLC (“Forsgate”) in the Circuit Court for Montgomery County. Forsgate allegedly owned and controlled the building where the parking lot was located. Coakley, itself or through its agents, allegedly pumped water out of pipes in a nearby construction site, and drained water into the parking lot causing the black ice to form.

Mr. Poole alleged that he slipped, fell, and injured himself on black ice while waddling through a stream of water that created a path through an otherwise icy parking lot, during a work-related delivery. Mr. Poole alleged that water was being pumped into the parking lot where he was walking, resulting in a stream of water an inch deep and between two (2) and three (3) feet wide on the parking lot.

Prior to trial, Coakley and Forsgate moved for summary judgment. The trial judge granted summary judgment in favor of Coakley and Forsgate, because Mr. Poole admitted that he believed that he took a safe path to the building by choosing to walk through a running stream of water, he did not believe ice could form beneath running water, and he had walked through the same stream at least five (5) to seven (7) times during the week prior to his fall without incident. However, the conditions in the parking lot were wetter and less icy on the morning of his accident than the night before, and he did not see ice in the path he chose to take. Based upon this evidence, the trial judge concluded that Mr. Poole’s case did not differ materially from prior ice and snow slip and fall cases wherein the Court of Appeals and Court of Special Appeals have found that the plaintiffs had “assumed the risk of falling on ice as a mater of law”. Before the Court of Special Appeals could address Mr. Poole’s appeal, the Court of Appeals issued a writ of certiorari.

The Court of Appeals reversed the trial court’s grant of summary judgment in favor of Coakley and Forsgate because, on the basis of the record before the trial court, Mr. Poole did not assume the risk of his injury, as a matter of law. The Court noted that its recent snow and ice cases were instructive, yet distinguishable, from the facts of this case. While more recent black ice cases focused on the voluntariness of the plaintiffs’ actions, each case also stands for the proposition that the knowledge undoubtedly acquired from encountering visible snow and ice may be imputed to the plaintiff as a matter of law. In the instant case, however, the Court considered knowledge of the risk of danger posed by black ice. Previous cases and examples discussed in legal treatises simply have dealt with the more common risk of danger posed by obvious, avoidable, visible ice. Mr. Poole testified repeatedly that he saw ice in certain areas of the parking lot, but that he did not see ice, or suspect that it could be, in the stream of water that he believed would be a safe path to the building. It may be a “matter of common knowledge that ice is slippery,” but one’s ability to identify black ice, when by its nature it is not perceivable or knowable until the moment of experience, means the danger is not necessarily patent. Thus, though the physical layout of the parking lot, including: the location of the visible ice, the stream, the drain, the cars, etc. were undisputed, while the issue of Mr. Poole’s knowledge concerning the very existence of the dangerous condition, i.e., the black ice beneath the stream of water that covered the path he trod, was subject to more than one reasonable inference. Where there is a dispute whether the risk is assumed or not, the question is usually left to the jury. Here, the record suggested that the presence of black ice was more akin to an “unusual danger,” so that consideration by the trier of fact was necessary to determine if it was assumed or not.

Summary judgment may not be granted on the grounds of assumption of the risk when the undisputed facts permit more than one (1) reasonable conclusion regarding the plaintiff’s knowledge of the risk of the danger, or there is a genuine dispute as to the material facts. In order for a plaintiff to have assumed the risk of his or her injuries as a matter of law, Maryland requires 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.” For a plaintiff to have knowledge of the risk, as a matter of law, there must be undisputed evidence that he or she had actual knowledge of the risk prior to its encounter. Actual knowledge can be proven, for example, by evidence of the particular plaintiff’s subjective knowledge of the risk, e.g., previous experience with or sensory perception of the danger, or evidence that the risk was so obvious that it could not have been encountered unwittingly.

Thus, the focus in an assumption of the risk case is on the plaintiff’s subjective knowledge. Prior case law suggesting an “objective” test remains binding, because “when it is clear that a person of normal intelligence in the position of the Plaintiff must have understood the danger, the issue is for the Court.” Therefore, for a Plaintiff to have knowledge of the risk, as a matter of law, there must be undisputed evidence that he or she had actual, i.e., subjective, knowledge of the risk prior to its encounter.

On the basis of the record, the trial judge should not have drawn the conclusion that Mr. Poole, as a matter of law, actually knew of the risk of slipping on black ice, because it was unclear whether he had subjective knowledge of the risk. Additionally, the risk was not one that a person of normal intelligence would have understood. Therefore, summary judgment was improper, and the trial court’s grant of summary judgment was reversed.