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Assumption of the Risk and Contributory Negligence: Separate and Distinct Defenses in Personal Injury Actions

Posted by James M. Connolly
James M. Connolly
Jim Connolly has applied his understanding of complex litigation, insurance claims and real estate transaction...
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on October 9, 2012
in Insurance Claims

Where evidence exists to generate both defenses, a jury must have the opportunity on a verdict sheet to consider these separate and distinct defenses.

In personal injury cases, a defendant may assert that a plaintiff is barred from recovery because he or she assumed the risk of injury or because his or her negligent conduct contributed to the accident.  The two defenses are sometimes confused, even by judges.  In its September 25, 2012 decision of S&S Oil, Inc. v. Jackson, the Maryland Court of Appeals reminded Maryland trial judges that, where evidence exists to generate both defenses, a jury must have the opportunity on a verdict sheet to consider these separate and distinct defenses.

In S&S Oil, a woman stopped at a gas station to buy motor oil.  The gas station was in the midst of renovation, including the flooring near the soda machine.  After buying the oil and returning to her car, the woman’s granddaughter asked for a soda.  The plaintiff reentered the building and walked towards the soda machine.  During her walk, she mis-stepped onto uneven ground, resulting in injuries to her right knee and lower back.  According to the station owner, there was an orange or red caution tape across part of the construction area and a “Watch Your Step” sign near the place where she was injured.

At trial, the judge instructed the jury as to assumption of risk and contributory negligence.  However, over the objection of the gas station defendant, the judge only included a specific question on the verdict sheet as to contributory negligence.  The verdict sheet contained no question about assumption of the risk.

In its opinion, the Court of Appeals found that the evidence at trial was sufficient to generate an assumption of risk defense.  Based on the caution tape and warning sign, the jury might conclude that plaintiff knowingly assumed the risk of her injuries.  At the same time, the Court also recognized that the evidence was sufficient to generate the defense of contributory negligence.  Simply put, a jury might conclude that, had the plaintiff used reasonable care and looked where she was walking, she might have avoided her mis-step on the uneven ground.  Because the two defenses are separate and distinct, the Court held that the trial court erred when it only gave a contributory negligence question on the verdict form to the jury.  Where facts exist to generate both defenses, the Court directed that a verdict sheet must include questions to allow a jury to consider each defense separately.

For personal injury claimants, assumption of the risk and contributory negligence remain legal bars to recovery.  If you need help weighing the merits of your own personal injury claim, our experienced attorneys are able to help.

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Jim Connolly has applied his understanding of complex litigation, insurance claims and real estate transactions to earn numerous victories in cases involving professional liability, commercial and business disputes, serious personal injury and tort claims at Kramer & Connolly.  Full Profile of Attorney James M. Connolly

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