Slip and fall injuries are a type of premises liability claim that are made when a person slips and falls as a result of an unsafe or hazardous condition on another’s property. As a starter, the law holds that a property owner or property manager must use reasonable and ordinary care to keep their premises safe, or warn persons of any hazards or dangers that are present, but the owner has not yet repaired or fixed. A hazard can be anything from that liquid that came from the broken bottle of Pepsi in “Aisle 9” at the grocery store, the recently mopped floor in the office building, or the hole or depression in the parking lot. Although, these are all typical slip and fall scenarios, the focus of my comments here pertains to those falls, which occur on ice.
All slip and fall cases are difficult, but ones where the culprit is ice are particularly difficult in Maryland. In fact, until 2011, these cases were virtually impossible to win even when the owner of the sidewalk, parking lot, or stairs, did nothing to clear the area, or treat it with salt or sand. This is because Maryland follows the rule of assumption of the risk, which holds that if the victim had or should have had knowledge of the danger beforehand, but still proceeds ahead, he/she is choosing to take the chance that he/she might fall and be injured.
We all agree that when a person is walking on any surface, he/she has a duty to watch where he/she is going and to avoid hazards; however, walking in an area where there is snow or ice about can be like walking in a minefield because ice in particular, in some cases, cannot be seen. Until recently, Maryland courts were very unforgiving in these cases, as they would find against a plaintiff virtually automatically if the evidence showed that the victim knew or should have known from the surrounding weather or other conditions that ice might be present at the location where they fell. The property owner only had to prove that the weather or outdoor conditions were sufficient for ice to form (i.e. it was freezing and had been wet or snowy in the time period before the fall), and thus the injured party should have known that the surface where they fell could be icy. So, for example, if the victim was walking outside on the day after it snowed, the snow or ice appeared to be cleared or treated, but at the time of the fall, the temperature was at freezing and there were wet, snowy or icy patches close by, the victim should have concluded that the location they were walking over was very likely icy and dangerous too. This was the rule, even if the victim did not actually see the ice. We can understand this rule for snowy areas or where the ice is clearly visible because the victim can see the danger, but chooses to proceed ahead; but, how can one assume a risk that he cannot see or know of.
The “Black Ice” Exception:
The term “black ice” is used to describe clear coating of ice that is layered over usually (black) asphalt or some other surface such as a parking lot. Black ice is often difficult to see and the surface usually just appears wet, so even if one is paying attention he likely cannot see the real danger ahead. Fortunately, Maryland’s highest court agreed with this way of thinking, and in two decisions issued in 2011 gave slip and fall victims a fighting chance in (black) and other ice cases. In Poole v. Coakley & Williams Construction, Inc., 2011 Md. LEXIS 659, 417 Md. 501 (October 27, 2011), the plaintiff slipped and fell on black ice while wading through a stream of water running across the parking lot at his place of employment. Mr. Poole testified that the majority of the parking lot was covered with visible ice and snow, and that he chose to walk through the stream of water because it contained no visible ice and he believed it to be safer than attempting to cross the otherwise icy parking lot. In Thomas v. Panco Management of Maryland, Ltd., 2011 Md. LEXIS 671, 418 Md. 190 (October 31, 2011), the plaintiff was injured after slipping and falling on black ice located on the sidewalk outside her apartment complex. Ms. Thomas testified that when she left her apartment complex early on the morning of the accident, she noticed patches of snow and ice on the sidewalk. When she returned to the complex in mid-afternoon, the ice and snow had melted, leaving only wet patches on the sidewalk. Ms. Thomas came and went from her apartment several more times that day and noticed that the sidewalk was wet. She saw no signs that salt pellets or sand had been put down on the surface either. When she left her apartment at approximately 8:00 p.m. that evening, Ms. Thomas slipped on ice, which had formed because the wet areas had now frozen over as a result of the temperature dropping. In both cases, the defense argued the current rule, that the victims, due to the surrounding weather conditions, knew or should have known the location where they fell was icy as a matter of course even though there was no sighting of ice. The high court disagreed, and held that it cannot automatically be assumed that a certain location is icy because conditions around it may be or because the weather at the time may be favorable to ice. As a result of these two opinions, the property owner must now prove that the victim actually knew or should have known that the specific location of the fall was icy, i.e. the victim could see the ice, but decided to chance it anyway.
Our experienced Maryland premises liability attorneys have handled several of these snow and ice cases and have been successful in getting recoveries for our clients. If you have been injured because of the negligence of a property owner in failing to remove or treat snow or ice, or fallen on “black-ice,” please contact the Law Offices of Stuart L. Plotnick, LLC today to schedule a free case evaluation. We represent injured victims throughout Maryland, Virginia, and Washington D.C., including Bethesda and Rockville residents.