Black Ice

Winter is here, which means snow and ice are around the corner. Most of us will need to muster the courage to brave the elements and get things done. So, what happens when the elements create hidden dangers at the places you need to be? One of the most common dangers we will face is black ice. While not actually black, black ice is virtually transparent thereby allowing asphalt and other surfaces to be seen through it. Three years ago, people injured by this invisible menace had no recourse in Maryland courts. The leading case at the time dealing with slipping and falling on black ice, Allen v. Marriott, created a simple way to defend against such cases.

In the Allen case, a hotel guest injured himself when he slipped and fell on black ice while walking to his car. As the ice was of the black variety, the hotel guest was unable to see the ice. However, the Maryland Court of Special Appeals held that the hotel guest assumed the risk of slipping on black ice because he could have inferred that there might have been black ice before he ventured out into the parking lot where he could see snow and visible ice. Assuming the risk prevents a plaintiff, like the hotel guest, from recovering for his injuries.

The court’s opinion in Allen v. Marriott made it extremely difficult, if not impossible, for plaintiffs to recover for their injuries when they slipped on black ice. This was a unfair because, even though people could not know if the surface they were about to step on was hazardous, they were deemed to have assumed the risk that the surface might be slippery due to black ice in the appropriate weather conditions.

However, the highest Maryland court disavowed the analysis in Allen v. Marriott in a recent decision - Poole v. Coakley & Williams Constr., Inc. In that case, a man walking through a parking lot slipped, fell, and injured himself on what he believed was black ice as he walked through a stream of water through an otherwise icy parking lot. The man testified that he thought it was safe because he did not see any ice, he walked through the same stream in the past, and he did not believe there would be ice under a stream of water. At trial, the trial judge applied the reasoning in Allen v. Marriott, which resulted in a loss for the man because the ground might have been slippery due to the weather and therefore he assumed the risk. On appeal, the highest Maryland court reversed the decision by rejecting the imputation of knowledge reasoning in Allen v. Marriott. The Maryland Court of Appeals explained that “for a plaintiff to have knowledge of the risk, as a matter of law, there must be undisputed evidence that he or she had actual knowledge of the risk prior to its encounter.” The requirement for actual knowledge creates a more appropriate application of the assumption of the risk defense. It allows people injured when they slip and fall on black ice to recover if they had no actual knowledge of the danger, but it prevents daredevils who voluntarily attempt to traverse known ice covered walkways from recovering for their injuries.

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