James N. Lewis's Slip and Fall Legal Blogs

Licensed for 5 years

Attorney in Baltimore, MD

James N. Lewis

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Serving Baltimore, MD

Associate at firm Ferguson, Schetelich & Ballew, P.A.

Serving Baltimore, MD

Credit cards accepted

The Court of Appeals of Maryland decided Poole v. Coakley & Williams Const., Inc., 423 Md. 91 (2011) and Thomas v. Panco Management of Maryland, LLC, 423 Md. 387 (2011) in late October 2011. These cases have redefined the way in which attorneys try slip-and-fall cases when the cause of someone’s fall was black ice. The primary change in how these cases are tried comes in the form of summary judgment.

When a plaintiff alleges that they have slipped on black ice, the defense will most likely make an attempt to win the case at the conclusion of discovery, but before trial, by virtue of a Motion for Summary Judgment. This motion would argue that the plaintiff assumed the risk of his/her injuries, that the plaintiff’s own negligence contributed to his/her injuries, or both. To argue that one has assumed the risk of his/her injuries would require evidence that the plaintiff knew about the possibility of getting injured, appreciated the risk, and confronted the risk on their own volition. To argue that one contributed to his/her injuries by their own negligence would mean that a plaintiff has not exercised ordinary care for his/her own safety to avoid injury. Either theory, if established in a Motion for Summary Judgment, would require the Court to enter judgment in favor of the defense as a matter of law.

What these cases have done is acknowledged the factual difficulty that can exist in either showing that a plaintiff knew the black ice existed (because it is difficult to see by its very nature) or showing that a plaintiff has not exercised ordinary care when he/she encounters black ice (again, because it is difficult to see). It is important to note, however, that the Court of Appeals did not hold that every allegation of slipping on black ice will be sufficient to survive summary judgment when it said “[w]e do not decide that a slip and fall on black ice case could never be resolved as a matter of law because there could be evidence to show that the particular plaintiff did know of the risk of encountering the condition, he understood the risk and voluntarily encountered it.” Poole at 119, n. 13.

If presented with a potential claim or lawsuit arising under a theory of premises liability, particularly when the alleged matter involves black ice, then careful attention to the facts should be reviewed in light of these decisions. Some, but not all, facts to consider when investigating these claims and/or lawsuits include (1) what the weather was like for the week leading up to the alleged slip-and-fall, (2) the measures taken by the insured to remove snow/ice and lay down sand and/or salt, (3) whether the snow and ice caused schools, businesses, and/or Governments to close, (4) the time between the end of the snow event and the time of the slip-and-fall, (5) whether other similar incidents had occurred and been reported, and (6) whether the insured conducted an investigation of the area where the plaintiff allegedly slipped and fell.

These two decisions have caused Judges to be more cautious when entering summary judgment because they have created limitations, principally for an assumption of the risk defense. Whether your insured is liable under these circumstances has recently become a more detailed question of fact.

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