Plaintiff Robert Wrecker, by and through his attorneys, Ronald V. Miller, Jr., Laura G. Zois, and Miller & Zois, LLC, respectfully request that this Honorable Court deny Defendants Bozzuto & Associates, Inc., and Bozzuto Landscaping Company (collectively “Defendants”) Motion for Summary Judgment. In support, Plaintiff states as follows:
The Defendants’ claim that Mr. Wrecker does not know, with certainty, whether he fell on ice or due to the 1/4 inch of snow that had fallen the morning was the cause of his slip and fall. To support this contention, they rely solely on the fact that Mr. Wrecker, who had just broken his ankle, was unable to visually see that the conditions were icy because he was unable to get up after the fall.
Defendants’ Motion ignores all of the remaining evidence and common sense. First, others did come to the scene and did identify the icy conditions of the pavement where Plaintiff fell. See Affidavit of Steven Elton Stevens, attached as Exhibit A. Mr. Stevens’s Affidavit makes clear that he saw the area of pavement where Mr. Wrecker was injured, identified it as ice, and put snow melt on the area in an effort to alleviate the condition. Moreover, Mr. Stevens testified in his deposition that the pavement was slippery. See Stevens Deposition, attached as Exhibit B, at pp. 37-38. Specifically, Mr. Stevens testified that a “sheet of ice had been a daily occurrence for the last couple of days prior to the thawing of this large mountain of snow and refreezing at night.” Id. at 37. In fact, Mr. Stevens further testified that that very morning before Mr. Wrecker’s fall: “I believe I tested it. I believe I walked around and observed . . .” Id. at 38. After seeing the conditions and before Plaintiff fell, Mr. Stevens called to complain of the slippery conditions.
Moreover, while Mr. Wrecker could not see the ice on the pavement which he fell due to his fall, he could feel the ice with his other foot. See Deposition of Robert Wrecker, attached as Exhibit C, pp. 41-42.
Finally, even assuming arguendo, that this clear evidence of ice did not exist, as set forth above, there is no notice of an unsafe condition and an injury from that condition.
Under law in Maryland, it is well-settled that in order to establish the defense of assumption of risk, the defendant must show that the plaintiff: (1) had knowledge of the risk of the danger; (2) appreciated that risk; and (3) voluntarily confronted the risk of danger. Liscombe v. Potomac Edison Co., 303 Md. 619, 630 (1985).
A. Plaintiff Did Not Have Knowledge or Appreciation of the Risk of the Danger
Ordinarily, the test of whether a plaintiff is aware of and appreciates the risk involved in a situation is an objective one, to be resolved by a jury. Schroyer v. McNeal, 323 Md. 275, 283 (1991). A jury could reasonably find evidence that Plaintiff did not have knowledge of the risk of the danger, because it would impossible to know the degree of the risk from day-to-day with respect to the ice that was underneath the snow.
As vigorously argued by Defendants’ in their Motion, Plaintiff did not see the ice on which he slipped. See Defendant’s Motion, p. 2; Plaintiff’s Deposition, attached as Exhibit C. If this is so, how can Defendants argue that the Plaintiff knew and appreciated the risk posed by that ice? The mere fact that he knew there may or may not have been ice is a different issue. In fact, the testimony was that the ice was presented only when overnight refreezing occurred. Mr. Wrecker also could have reasonably presumed that twelve days after the blizzard, Defendants had finally resolved the ice issue. See Exhibit C, p. 38.
There is also a question as to whether Plaintiff knew that there had ever been ice on the area of the parking lot. Plaintiff knew there was a freezing and refreezing problem at some point. He did not know whether the problem even existed on that day because the lot was not slippery every day in every area, only on certain days when refreezing occurred in a specific area. See Exhibit A and Exhibit D. Finally, Plaintiff testified he did not know if there was a problem in the area of the parking lot at issue because he had never parked in that area during the storm. See Exhibit D, Affidavit of Robert Wrecker.
Under Defendants’ specious theory, Plaintiff would have had to assume (1) refreezing had occurred, (2) the failure of Defendants to address the issue, (3) that the salt that was put down that morning was not adequate to remedy the problem, (4) that he would encounter one of the small ice patches he had once previously seen in other area of the parking lot, (5) that there possibly was an ice patch on his walk on an area of the parking lot where he had never traversed since the blizzard., and (6) that this is one of the days that refreezing was an issue. Clearly, a jury could find that any one of these facts negated Plaintiff’s alleged knowledge of the potential harm and, accordingly, Defendant have not met their burden of proof regarding assumption of risk.
B. Plaintiff Did Not Voluntarily Assume the Risk
In order to assume the risk, there must be a willingness to take an informed and voluntary risk. As set forth above, Plaintiff’s risk was not informed. But even assuming for the sake of argument it was informed, it was not voluntary.
[I] in order for a plaintiff to assume voluntarily a risk of danger, there must exist ‘the willingness of the plaintiff to take an informed chance,’ [citation omitted] there can be no restriction on the plaintiff’s freedom of choice either by the existing circumstances or by coercion emanating from the defendant. This is so because even where the plaintiff does not protest, the risk is not assumed where the conduct of the defendant has left him no reasonable alternative. Where the defendant puts him to a choice of evils, there is a species of duress, which destroys the idea of freedom of election. ADA Partnership v. Martin, 384 Md. 84, 92-93 (1997) (emphasis added). This is the exact language often given in jury instructions in snow and ice slip and fall cases.It is a question of fact for the jury as to whether the Plaintiff had a reasonable alternative. Here, a jury could reasonably conclude that Plaintiff’s choices were (a) transverse the parking lot, or (b) stay home from work. Since choice (b) is utterly absurd, a reasonable jury could conclude he had no choice at all.
Still, Defendants vigorously contend that Maryland law supports the insane notion that Plaintiff had a choice as a matter of law. The sole basis for their argument is the Court of Appeals holding in ADM Partnership v. Martin, 384 Md. 84, 92-93 (1997). In ADM Partnership, the plaintiff was a delivery person assigned to deliver blueprints for her employer across an open and obvious hazard of unplowed snow. Id. at p. 87. In this case, Plaintiff was not given a choice with respect to a particular assignment. Rather, his choice was whether or not to attend work. Plaintiff reasonably believed he was required to be at work. See Exhibit D. Refusal to attend work ten days after a storm because of the potential that ice might be present is a far cry from failure to deliver a single set of blueprints while on the job. Clearly, the latter presents an option for the reasonable employee that the former does not present. Accordingly, Plaintiff’s decision to go to work was not voluntary under Maryland law.
Summary judgment is appropriate only in cases where no question of fact exists for a jury to decide. Even assuming assumption of risk applies in this case, the three-prong test to be applied involves facts which are clearly in dispute. This is obvious from a simple comparison of Defendants’ argument that Plaintiff does not know what he fell on and Plaintiff’s own deposition testimony.
WHEREFORE, it is respectfully requested that this Honorable Court deny Defendants’ Motion for Summary Judgment.
Miller & Zois, LLC
Ronald V. Miller, Jr.
Laura G. Zois
1 South St, #2450
Baltimore, MD 21202
(410)779-4600
(410)760-8922 (fax)
Attorneys for the Plaintiff
Certificate of Service
I hereby certify that the preceding Response to Defendants’ Motion for Summary Judgment was sent via U.S. Mail, first-class, postage prepaid, this 29th day of April, 2023, to:
Susan E. Smith, Esquire
Crosswhite, Limbrick & Sinclair, LLP
Lake Falls Professional Building
6115 Falls Road, Suite LL-B
Baltimore, Maryland 21209
Attorney for Defendants Caleast Industrial Investors, LLC,
CB Richard Ellis, Inc., and CB Richard Ellis Real
Estate Services, Inc.
Angela Russell, Esquire
Shadonna E. Hale, Esquire
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP
400 East Pratt Street, Suite 430
Baltimore, Maryland 21202-3155
Attorneys for Defendants Bozzuto & Associates, Inc.,
and Bozzuto Landscaping Company
Ronald V. Miller, Jr.
IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND
Robert Wrecker,
– Plaintiff
Bozzuto & Associates, et al,
– Defendants
CASE NO.: 05-C-06-6511
Having fully read and considered the Defendants Bozzuto & Associates and Bozzuto Landscaping Company’s Motion for Summary Judgment, it is this day of, 2023, by the Circuit Court for Anne Arundel County, Maryland, ORDERED that the Defendant’s Motion be and hereby is DENIED.
Ronald V. Miller, Jr., Esquire
Laura G. Zois, Esquire
Miller & Zois, LLC
1 South St, #2450
Baltimore, MD 21202
Susan E. Smith, Esquire
Crosswhite, Limbrick & Sinclair, LLP
Lake Falls Professional Building
6115 Falls Road, Suite LL-B
Baltimore, Maryland 21209
Angela Russell, Esquire
Shadonna E. Hale, Esquire
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP
400 East Pratt Street, Suite 430
Baltimore, Maryland 21202-3115
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