S&S Oil, Inc. v. Jackson 12/6/2013

In this case, the Court of Appeals re-affirmed that the defenses of assumption of risk and contributory negligence are separate and distinct and usually require separate questions on a special verdict form.  In doing so, the Court reversed a decision of the Court of Special Appeals that had affirmed a trial court’s decision to withhold from the verdict sheet a question as to whether the plaintiff assumed the risk of injury.  Although the trial court had instructed the jury on both defenses of contributory negligence and assumption of the risk, it later refused to include a specific jury question on assumption of the risk.  In doing so the trial court had explained that “assumption of risk is a form of negligence” so it was covered under the verdict question asking whether the plaintiff was contributorily negligent.

The case arose out of a gas station customer’s trip and fall inside a convenience store that was undergoing renovations.  There was evidence that the gas station had ample warning signs cautioning customers that renovations were ongoing.   Despite these warnings, the customer crossed through the convenience store and tripped and fell. 

The Court of Appeals explained that the only time that the two defenses overlap is if all reasonable jurors would conclude that the risk assumed was unreasonable and, therefore, the act of assuming the risk is necessarily negligent.  In this case, the risk of crossing through an area of a convenience store that was undergoing renovations was not a risk that all jurors would conclude as being unreasonable.  Therefore, the defenses did not overlap and separate jury questions were required.  The Court reversed the Court of Special Appeals’ judgment affirming the verdict and remanded it for a new trial.