Black Ice is No Excuse

With the cold winter weather having already arrived, all of us are encountering ice (and even a little snow) as we travel, including negotiating sidewalks and parking lots. We have all seen the white appearance of ice on snow or other surfaces. Many of us have also encountered what is known as “black ice,” that is a thin layer of ice over a black surface like asphalt.

A very common type of civil claim for damages is the “slip and fall” case, where a person slips on an allegedly defective condition and falls, then sues the owner of the property for injuries. A plaintiff bringing such a suit must prove that the owner was negligent, including that a duty was owed to the person on the property, that there was a defect of which the owner was or should have been aware, but the owner failed to act reasonably. Defendants in such cases, very often with great success, raise the defense of assumption of risk.

Maryland law holds that if a person has knowledge of a risk, appreciates its danger, yet voluntarily chooses to encounter the risk, he or she cannot recover. Many Maryland cases hold that where a plaintiff admits he was aware of snow or ice, yet chose to step onto it anyway, as a matter of law he cannot recover damages. Whether a person who encounters unseen black ice should be likewise barred was addressed this week by Maryland’s intermediate appellate court in Allen v. Marriott Worldwide Corp.

The opinion indicates that Allen and his wife stayed for two cold February nights at a Residence Inn. When they checked out at 8:00 a.m., Mrs. Allen went to get the car. Rather than stay at the entrance to the hotel, Mr. Allen walked onto the sidewalk, then stepped over ice and snow that had been pushed up against the curb while pulling a suitcase. He stepped onto unseen black ice on the parking lot, fell and was injured.

He filed suit in Montgomery County, claiming that the hotel owner was negligent in maintaining property free of ice. The trial court ruled that even if Mr. Allen could prove that the hotel was negligent, he had assumed the risk of slipping and falling as a matter of law. Allen appealed.

He argued that the defense could not prove the first prong of the assumption of risk test, namely that he had knowledge of the risk, and therefore that he could not have assumed it. Because he could not see the black ice, he argued that he could not have know he was encountering that risk when he stepped into the parking lot. The many cases finding against slip and fall plaintiffs, Allen argued, simply did not apply.

The appellate court rejected that argument, agreeing with the trial court that Allen had assumed the risk when all the relevant facts were considered. Judge Moylan colorfully noted “the path to knowledge is not limited to the sense of sight alone.” The facts showed that Mr. Allen was aware of ice and snow in the parking lot when he first checked in two days before. He knew it would go below freezing at night, had seen salt on the sidewalk and encountered slippery conditions the day before in the parking lot. The court noted that “induction is as worthy a highway to knowledge as is sensations”- one can assume the risk by stepping onto an unknown surface which a reasonable person would know may be slippery.

Black ice may therefore be no excuse, so all of us be careful where we step this winter.