Warsham v. Muscatello

985 A.2d 156

189 Md. App. 620

E. Daris WARSHAM v. JAMES MUSCATELLO, INC.

No. 1041, September Term, 2008.

Court of Special Appeals of Maryland.

December 30, 2009.

H. David Leibensperger (Mark Nee, Berman, Sobin, Gross, Feldman & Darby, LLP on the brief), Gaithersburg, for appellant.

Amy Leete Leone (Scott D. Nelson, McCarthy Wilson on the brief), Rockville, for appellee.

Panel: HOLLANDER, MATRICCIANI, and JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.

HOLLANDER, J.

This "slip and fall" case arises from an incident that occurred on March 9, 2005, when E. Daris Warsham, appellant, fell as he attempted to salt an icy area on the property of James L. Muscatello, Inc., appellee, his employer's landlord. Appellant subsequently filed a negligence suit against the landlord on April 27, 2007, to recover for injuries he sustained in the fall.¹ The Circuit Court for Montgomery County granted the landlord's motion for summary judgment on May 21, 2008, ruling that the suit was barred by the doctrines of contributory negligence and assumption of the risk.

This appeal followed. Appellant presents one issue, which we quote:

Whether a plaintiff is contributorily negligent or assumes the risk as a matter of law where the plaintiff falls on ice, negligently left by the defendant, while in the process of remedying the icy condition by salting it[.]

For the reasons set forth below, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND²

At the relevant time, appellant was employed by Master's, Inc.³ ("Master's"), located at 7901 Beechcraft Avenue, # A, in Gaithersburg (the "Property"). The Property, located in a warehouse type building, was leased by Master's from James L. Muscatello, Inc. (the "Company" or the "landlord"). Master's and the Company shared use of the parking lot.

On March 9, 2005, appellant arrived at work between 6:00 a.m. and 6:30 a.m. The weather was cold, but there was no precipitation, nor had there been any on the previous day. According to appellant, mornings are the busiest time at work, because of deliveries and because Master's contractors set up their equipment "for the day."⁴ However, appellant claimed that some of Master's field technicians were told by their supervisor that they should not report to work until after 10:00 a.m., apparently due to concern about the weather.⁵

Upon his arrival at work, appellant "was able to clearly see a large icy area" on the parking lot, which he described as a "fishing pond" located "[i]n front of [his] bay door...." He explained that there was an ongoing problem of "standing water" accumulating outside his office, dating at least to the Fall of 2004, when he began working at Master's. He claimed that vendors and employees of Master's often complained about "having to trek through the water." Appellant claimed that he notified his boss Joe Mathews;⁶ the safety coordinator, Gwen Wathen; and others, including appellee's assistant, "Al," about the pooling of water in the parking lot.

According to appellant, on the date in question the pool of water had "iced over." Appellant described the conditions as "very slick and very icy." He maintained that the icy area was large, measuring about ten feet in diameter. However, he acknowledged that it was plainly visible, and he never notified anyone at Master's or the Company of the situation on that date. To avoid the icy area, appellant walked through some bushes and on the grass to reach the entrance to his office.

Warsham recounted that, soon after his arrival at work on March 9, 2005, he was on the telephone and saw Danny High, a Master's field technician. High, who was driving a van, was "pulling up onto the area that was frozen over," in order to access the bay area of the warehouse. Upon seeing the van drive "up on top of the ice," appellant left his office to warn High of the ice. According to appellant, he yelled to High: "Be careful not to slip on the ice."⁷ High exited his vehicle without incident.

The following deposition testimony is pertinent:

[COUNSEL FOR APPELLEE]: [After you entered your office, w]hat did you do next?

[WARSHAM]: ... [I saw] someone pulling up onto the area that was frozen over. I was speaking to one of my vendors at the time that it happened. I said, look, I've got to call you right back. I said I can't believe somebody's out here.... The van pulled onto the ice.... I came out of my door, after I told my vendor I'd have to call him back, and I remember having a bucket of salt or something either inside the door or outside of the door. And I told him don't get out of the van....

* * *

[COUNSEL FOR APPELLEE]: Okay. Danny High pulled up to the bay door. When you saw him pull up, you got off the phone and the conversation with the vendor that you were on. YOU [sic] walked outside and you warned him to be careful due to the ice that you had seen prior to walking into the building; correct?

[WARSHAM]: Correct.

* * *

[COUNSEL FOR APPELLEE]: So [the driver] walked over [the plastic platform], walked into the supervisor's office, and you warned him to be careful about that area, correct?

[WARSHAM]: That's what I was trying — in attempts to do.

After warning the driver of the van, appellant "grabbed" a bucket of salt located near the door of the Property and proceeded to "spread" the salt with a cup, "so anyone coming into the building wouldn't slip." He began by salting the outer portion of the large icy area, because he wanted to avoid walking on the ice. When appellant got to the opposite side of the icy area, however, he decided to walk across the ice. While doing so, he fell.⁸

Appellee moved for summary judgment. It claimed, inter alia, that the Company did not have notice of the ice, and thus had no liability to appellant; that the condition was open and obvious, and therefore appellee owed no duty to appellant; and, as a matter of law, Warsham had assumed the risk of the condition and was contributorially negligent. As to assumption of the risk, appellee averred:

The undisputed facts clearly demonstrate that the Plaintiff voluntarily traveled across the alleged defect. The plaintiff failed to employ the safer, alternative method of walking around the alleged defect. The Plaintiff was on notice of the alleged condition, yet failed to take the necessary steps for his own safety.

Since it is clear . . . that Plaintiff was aware of the inherent dangers involved in walking on the ice, and voluntarily chose to expose himself to the "danger", he assumed the risk as a matter of law. . . . Plaintiff had options, yet, decided to subordinate his safety. It stands to reason that a person of normal intelligence who was placed in a similar situation would be aware of and also capable of appreciating the danger at hand. . . .

At the motion hearing on May 21, 2008, appellant's counsel agreed with the court that "the facts for the most part, are not in dispute." Appellant's counsel added: "In our opposition, we don't rely on a dispute of fact to oppose the motion." Nevertheless, in challenging the motion, he argued:

With regard to notice. First, the defendant did have notice of the icy condition, because the defendant was well aware that it had a problem with pooling water on its property. That's a fact not in dispute. It's a matter of nothing more than common sense that if a party is aware that it has a pooling water problem, then the party should also be aware that it will have an icing problem as soon as that water freezes. To argue that the knowledge of pooling water, combined with knowledge of freezing weather conditions, doesn't constitute constructive knowledge of the icy condition in question, is to argue that nothing can constitute constructive knowledge and it ignores basic common sense.

* * *

[Regarding the open and obvious issue,] the defendant did owe the plaintiff a duty of care to exercise ordinary care to keep the premises in a reasonabl[y] safe condition, despite the fact that the condition was open and obvious. . . . We rely on the Bod[d]ie v. Scott case for that [124 Md.App. 375, 722 A.2d 407 (1999)].

The Court of Special Appeals in Bod[d]ie said that, "even when a danger is fully known and comprehended" — as we admit it was here, he saw the ice, he knew it was dangerous, he warned somebody else of it — "the plaintiff is not barred from recovery simply because he chooses to deliberately encounter it in the following situations." One of which is specifically where the plaintiff seeks to rescue another person, or his own, or another's property which is endangered by defendant's negligence. . . .

Now, we acknowledge that there does seem to be a split in Maryland cases between whether an open and obvious condition is regarded as, goes to the duty that's owed, or whether it goes to the defense of the assumption of the risk. And I would argue vehemently that . . . the better argument is that it goes to assumption of the risk and not to whether or not there is a duty. . . . [I]t's better public policy to encourage people to take responsibility for cleaning up their own messes, to take responsibility for remedying dangerous conditions in the first place. . . .

* * *

Now here, Mr. Warsham was attempting to prevent the injuries to others when he was injured himself, and the defendants admit this readily.

. . . [Appellee] admit[s] that this was what [appellant] was trying to do. This commendable activity of trying to help other people. So he recognizes the icy condition and went outside and salted the area. Mr. Warsham, just like in the Bod[d]ie case, was left only with two choices. Allowing others to be injured by the ice or possibly be injured himself by remedying the condition. Now, there might have been other choices as well. He could have maybe put up a sign or he could have stood out there all day and warned people, but whether or not those were the reasonable choices, that's a question of fact for the jury to decide and not one that should be considered as a matter of...