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Contributory Negligence and Assumption of the Risk in Slip and Fall Cases

February 24, 2022

Maryland’s second highest court recently issued a decision that considered the affirmative defenses of contributory negligence (plaintiff failed to use reasonable care) and assumption of the risk (plaintiff knew and appreciated the risk of danger and voluntarily exposed herself).

In Cador v. YES Organic Market Hyattsville, Inc., the plaintiff slipped and fell on wet floor that had recently been mopped while shopping at the YES Organic Market.  The plaintiff was seen on store surveillance talking to an employee in the check-out area before her fall.  Located in close proximity to her at that time was a “Caution: Wet Floor” sign.  After speaking with the employee, she traversed down one of the aisles and fell.  There was no “Caution: Wet Floor” sign in the aisle, but the parties agree a yellow mop bucket was nearby.  Plaintiff testified at her deposition, however, she did not see the sign or the yellow mop bucket before she fell.

The Market moved for summary judgment asking the trial court to find that the plaintiff was contributorily negligent and that she assumed the risk because she should have seen the sign and the mop bucket and therefore, she was on notice that the floor was dangerous.  The trial court agreed and judgment was granted in favor of the Market.  The plaintiff appealed the decision arguing that her knowledge of the signs was disputed and the issue should have been decided by a jury. 

The Court of Special Appeals overturned the decision of the trial court and remanded the case for a jury trial.  The Court opined that plaintiff’s knowledge of the warning signs cannot be inferred as a matter of law.  In other words, although an inference that the plaintiff must have seen the yellow mop bucket is permissible, such is inference is not required.  Further, it is contrary to the plaintiff’s testimony that she did not see it.  Additionally, even if she saw the mop bucket there is a dispute as to the message being communicated by the mop bucket (i.e., why was the mop bucket there?).  Accordingly, these “disputed” facts should have been presented to and decided by a jury and not found as a matter of law by the trial court. 


In Webb v. Giant of Maryland, LLC, the highest court in Maryland revisited the level of control necessary to hold entities liable for the acts of their independent contractors.  While shopping at the Giant store, the plaintiff claims she was struck in the back by a pallet jack operated by an employee of Pepsi named Mr. Winzer.  Plaintiff sued Giant claiming that it was liable for the Mr. Winzer’s actions.  The case went to trial and at the conclusion of the plaintiff’s case, Giant moved for judgment arguing that Mr. Winzer was not an employee of Giant and therefore, Giant cannot be held vicariously liable for his actions.  The trial court denied the motion finding that there was sufficient evidence to show that Giant had sufficient control over Mr. Winzer.  The case was subsequently submitted to the jury who decided in favor of the plaintiff. 

Giant appealed to the Court of Special Appeals who reversed the trial court’s judgment finding that Mr. Winzer was an independent contractor and Giant had no control over the means and methods of his work.  The plaintiff then petitioned the Court of Appeals who affirmed this decision.  The highest court acknowledged that the evidence demonstrated Giant (1) required Mr. Winzer to check in and out; (2) had the authority to correct him while in the store; (3) instructed him where to go; (4) had the authority to remove him from the premises; and (5) required Mr. Winzer to use only non-powered jacks.  However, the Court of Appeals opined this evidence was insufficient to permit an inference that Giant retained sufficient control over Mr. Winzer’s work.  As such, judgment in favor of Giant was proper.