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In a Personal Injury Case, When Is a Danger So Obvious as to Bar Recovery?

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 September 26, 2012
in Auto Accident Law

"I wish I had an answer to that because I'm tired of answering that question." – Yogi Berra.

While it is unlikely that Yogi had the defense of assumption of the risk in mind when he said it, his response captures the challenge faced repeatedly by trial judges and juries when considering one element of this defense – When is a danger obvious?

Under Maryland law, a plaintiff in a negligence action who knowingly assumes the risk of an obvious danger resulting in injury is barred from recovery.  Assumption of the risk is a complete bar to recovery.  This defense is often raised in accidents where a plaintiff is injured while walking on ice or an uneven floor.  A defendant landlord or business may contend that, because the plaintiff observed and knew the obvious danger of walking on the ice or an uneven floor, the plaintiff assumed the risk of injury and is barred from recovery.

In its September 25, 2012 decision of S&S Oil, Inc. v. Jackson, the Maryland Court of Appeals reminded Maryland trial judges that the answer to the question of what is an obvious danger is generally for a jury to decide.

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.  The Court found that this evidence 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.  As a result, the Court held that the trial court erred when it took consideration of the assumption of risk defense from the jury.

When is a danger so obvious as to bar recovery?  S&S Oil reminds judges that they usually don’t need to decide.  Simply let the jury answer the question.

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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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