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Beware: Black Ice and the Court of Appeals

August 5, 2020

As temperatures grew colder and winter began becoming a reality, Maryland’s highest court chose an appropriate time to issue its decision in Poole v. Coakley & Williams Construction, Inc. (No. 130, September Term, 2010).  In retrospect, this past winter may not be one that is remembered for record breaking snowfall or extreme weather.  But, with the Court of Appeals’ decision in Poole, this past winter may instead be remembered for something different: the way Maryland courts decide cases concerning black ice.

In Maryland, a person seeking compensation for injuries sustained on the premises of a business must prove certain elements in court that, when put together, dictate that the business owner is legally responsible.  Similarly, however, the owner may also offer proof that the injured person’s own knowledge or conduct should prevent any recovery whatsoever.  One such defense, known as ‘assumption of risk,’ requires a showing that, among other elements, the plaintiff had knowledge of the risk that ultimately caused the injury.  

Can a person be said to have knowledge of the risk posed by black ice?  Of course, as the Court of Appeals wrote, it is “a ‘matter of common knowledge that ice is slippery.’”  But, in the view of the Court, black ice specifically is a bit of a different animal.  The Court pointed out that black ice, by its very nature, is often “not perceivable or knowable until the moment of experience.”  

A fair reading of the Court’s decision leads to the conclusion that the traditional assumption of risk defense is no longer practically available to business owners after the plaintiff first utters two words: black ice.  The Court has explicitly stated that black ice is a type of danger that people typically do not realize before they slip and fall.  In other words, a person cannot actually know of the danger before it is encountered.  

By definition, black ice is difficult to perceive and fully recognize.  Therefore, once the plaintiff alleges that they were injured due to black ice, the defense of assumption of risk appears to no longer be of use to the defendant seeking to avoid the cost of trial and arguing for summary judgment.  Instead, the defendant will need to argue to a jury that the plaintiff knew of the black ice and, nonetheless, assumed the risk of slipping and falling.  The defense no longer appears to be one that will be granted by a judge, pre-trial, as a matter of law.

Time will tell the impact upon of assumption of risk and its use in cases of black ice.  Until then, businesses should be advised to stockpile and use their more traditional defense to the dangers posed by winter: salt.  It may be more important now in helping to keep them out of the courtroom.