An Imperfect Defense: Don’t Assume Too Much

Assumption of the Risk: Cracks in the Defense’s Armor

Assumption of the Risk is a defense commonly used by defendants who get sued after someone gets injured. The Assumption of the Risk defense offers the argument that the injured party knew they were acting in a way that they might injure themselves, and as a result, they should be prevented from recovery. The defense often proves effective, allowing defendants to avoid liability. But a number of cases over the years have opened the door, albeit ever so slightly, for plaintiffs to increase their likelihood of recovery.

First, Assumption of the Risk has three elements:

  1. The Injured Party (Plaintiff) had knowledge of the risk of the danger
  2. The Injured Party appreciated that risk
  3. The Injured Party voluntarily confronted the risk of danger

In other words, if you were to knowingly and voluntarily put yourself at risk of injury, you can be prevented from receiving damages if and when you get hurt.

A number of slip and fall cases have tested the boundaries of Assumption of the Risk, and some of these cases have been beneficial to Plaintiffs.  One such case is Rountree v. Lerner Development Corp., decided in the Court of Special Appeals in 1982.  In the case, a tenant slipped and fell on ice that covered the steps outside of her apartment.  Her landlord used the defense of Assumption of the Risk, arguing that the tenant left the apartment regardless of the cold and snowy conditions.   As it turns out, Rountree was leaving her apartment to go to work, with which the court sympathized.   Additionally, the court heard evidence that there was no alternative route for her to avoid the ice-covered steps. These facts led the court to conclude that Rountree had not assumed the risk that led to her injury.

Years later,a number of court decisions began to cast doubt whether Rountreeremained good law in Maryland. Maryland’s highest court, the Court of Appeals,affirmed that it remained good law in the 2011 case ofThomas v. Panco Management of Maryland LLC.In addition, the Court stated that in many circumstances the elements of Assumption of the Risk were questions that only a jury should decide. Put another way, a jury instead of a judge would, in many cases, have to decide whether an injured party had sufficient knowledge of the risk and voluntarily exposed themselves.This ruling helps prevent the possibility that a plaintiff will so quickly be ruled against by a judge as a matter of law. Despite courts’ efforts to clarify, the issue remains legally complex.

Fred Antenberg is a Maryland Personal Injury Attorney in Columbia, Maryland that handles personal injury matters in Howard County, Maryland and surrounding counties. CONTACT  Fred at 410-730-4404.