Maryland Pattern Jury Instruction Outlining the Duty Owed by a Possessor of Land to a Business Invitee Was Updated to Partially Address Modification Requested by the Court of Special Appeals
January 27, 2022 By Matthew J. Gannett
The Maryland Civil Pattern Jury Instruction 24:3 addressing the duty owed by a possessor of land to an invitee was updated to read as follows:
The duty owed to invitees by an occupier of land is to use reasonable and ordinary care to keep the premises safe for the invitees and to protect the invitees from injury caused by an unreasonable risk that the invitees, by exercising ordinary care for their own safety, will not discover.
This instruction was modified in response a request by the Court of Special Appeals. See Six Flags Am., L.P. v. Gonzalez-Perdomo, 248 Md. App. 569, 591n.8, 242 A.3d 1143, 1156n.8 (2020). The prior jury instruction read “The duty owed to an invitee is to use reasonable care to see that those portions of the property that the invitee may be expected to use are safe.” The Court of Special Appeals noted that the instruction, as written was not complete since a possessor of lands duty to an invitee is to protect the invitee “from injury caused by an unreasonable risk that the invitee would be unlikely to perceive in the exercise of ordinary care for his or her own safety, and about which the owner knows or could have discovered in the exercise of reasonable care.” Id. (emphasis added). Thus, Maryland law is clear that the possessor of land is subject to liability for a condition on the land only if the possessor (1) “knows or by the exercise of reasonable care could discover the condition . . . . (2) has no reason to believe that [the invitee] will discover the condition or realize the risk involved therein; and (3) invites or permits [the invitee] to enter or remain upon the land without exercising reasonable care to make the condition reasonably safe, or to give a warning adequate to enable [the invitee] to avoid the harm . . .” Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 117, 113 A.2d 405 (1955); See also Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md. App. 381, 389 693 A.2d 370 (1997).
While the updated jury instruction is a vast improvement upon the prior instruction, it still does not fully encompass the state of Maryland law on the issue. The updated jury instruction clarifies that the duty to use reasonable care to protect invitees extends only to conditions that pose an unreasonable risk about which the invitees will not discover in the exercise of reasonable care. However, the instruction does not clarify that the duty extends only to conditions known to the possessor of land or which could have discovered by the possessor of land in the exercise of reasonable care. Therefore, a shrewd defense counsel should continue to request non-pattern jury instructions clarifying this issue.