The Court of Appeals (the highest court in Maryland) published its September 25, 2012 decision in S&S Oil, Inc. v. Elaine W. Jackson. Judge Greene penned the opinion for the court, which tackled the question of whether Maryland’s rules on assumption of the risk amount to the same thing as contributory negligence. Here’s the case setup:
Ms. Jackson was at a gas station to buy some motor oil. She went in, purchased the oil, and walked back to her car. Her granddaughter asked for a soda, so Ms. Jackson went back inside, found the soda machine, and walked toward it. She tripped on uneven flooring in front of the machine, which she later described as sloped and lumpy. The store uneven area was part of store renovations, and the store’s owner said there was caution tape near the area and a “watch your step” sign close by. Ms. Jackson did not see any of it before her fall.
At trial, the judge gave oral instructions for assumption of the risk:
A plaintiff cannot recover if the plaintiff has assumed the risk of her injury, I guess. A person assumes the risk of an injury if that person knows and understands the risk of an existing danger, or reasonably should have known and understood the risk of an existing danger and voluntarily chooses to encounter the risk.
The verdict sheet (the document that the jurors fill out to help decide who wins the case), however, did not contain any section about assumption of the risk. It did mention Maryland’s contributory negligence law, which is always raised in slip-and-fall cases. Contributory negligence basically says that if the plaintiff is even 0.01% responsible for her injuries (perhaps because she wasn’t watching where she was going, she was wearing inadequate shoes, etc…), and the defendant is 99.99% responsible, the plaintiff loses her case. The judge believed that the rule on contributory negligence seemed to encapsulate assumption of the risk. The jury decided that Ms. Jackson proved her case and rendered a verdict of $143,416.41.
The Court of Special Appeals, in a wacky statement, said that “[i]f the jury determined that [Ms. Jackson] assumed the risk of her injury, it would necessarily find that she was contributorily negligent.” That’s all well and good, but it’s never been the law. Assumption of the risk and contributory negligence are two totally separate things. If I see a wet floor sign, and I choose to walk ahead into the water, I am assuming the risk of falling, even though I am walking carefully and perhaps not negligently. A risk may be reasonable, for one reason or another. If I walk with a blindfold on and slip on a wet floor, I am contributorily negligent.
So, the trial judge orally instructed the jury on assumption of the risk, and told them that the assumption of the risk argument was subsumed in the contributory negligence portion of the verdict sheet. That’s definitely not the right way to do it, but theoretically it accomplished the same thing as a separate line for assumption of the risk. The jury knew what the rules were, despite a little mix-up from the court. The plaintiff would have lost if the jury found either contributory negligence or assumption of the risk, so rolling them all into one shouldn’t have changed anything.
The Court of Appeals decided otherwise, however. In remanding the case for a new trial, they held that the jury was probably confused–they were told about assumption of the risk, but there was no instruction on the jury verdict form. The plaintiff’s attorney in the case probably should have joined with the defense in arguing for a separate assumption of the risk line–it’s hard to do something like that because it is contrary to instincts, but the case is now right back where they started.
Slip-and-fall cases are among the toughest types of cases to try. It is difficult to prove that the owner knew or should have known of a dangerous condition. Assumption of the risk and contributory negligence are always raised as defenses, and the gut reaction of many people is that someone who falls is at least partially responsible for the fall (the phrase used is “should have watched where you were going.”). We may watch where we’re going, but falls happen, regardless. We’re not expected to keep an eye constantly on the floor, and no one can keep up that kind of behavior. The lawyers in the case did a good job, but now they’ll have to do it again.
There have been some court rulings of late about dog bite cases in other states, so we thought this might be a good opportunity to clarify the law in Maryland (at least, the undisputed part of the law–for the ongoing saga of pit bulls and strict liability, see our prior posts). If you want to see Maryland’s rules, just scroll down. Otherwise, we’ll take a quick detour to those other states.
In New Jersey, the plaintiff in McDougall v. Lamm argued that she should be able to recover emotional distress damages for watching the defendant’s dog pick up her dog, shake it and drop it to the ground, causing its death. The high court ruled that emotional distress damages were not recoverable, and that the plaintiff was limited to recovery of the replacement cost of the dog, taking into account the dog’s training and breeding.
An appellate court in California decided that intentional injury to a pet can result in a valid claim for emotional distress damages. In Plotnick v. Meihaus, a feuding neighbor somehow injured a dog, perhaps unlawfully on his property, with a baseball bat (vet bills were $2,600.00). It was a 15-lb. miniature pinscher, and the feuding neighbor was, according to his testimony, acting in self-defense. The emotional distress damages awarded amounted to $50,000.00. The ruling appears to indicate that these damages are justified for intentional injury or gross negligence.
Under Maryland law, the death of a pet at the hands of a negligent owner’s dog is compensable. Not unlike New Jersey, Maryland permits pet owners to recover for the fair market value of the killed pet. We still view pets as personal property in this regard, just like a car. The state legislature passed a rule a few years back that gives pet owners a little more in the way of options. “In the case of the death of a pet, the fair market value of the pet before death and the reasonable and necessary cost of veterinary care; and (ii) [i] the case of an injury to a pet, the reasonable and necessary cost of veterinary care” (Maryland Cts. & Jud. Proc. §11-110). The absolute limit of that veterinary care cost, however, is $7,500.00.
If you need to know more about your rights when you or your pet is the victim of a dog attack, contact our office at 443.850.4426, or fill out our online request form.