assumption of risk doctrine in Maryland

2011As explained, supra, “the doctrine of assumption of risk will not be applied [as a matter of law] unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff.” Schroyer, 323 Md. at 283 , 592 A.2d at 1123 (emphasis added).

2011As explained, supra, “the doctrine of assumption of risk will not be applied [as a matter of law] unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff.” Schroyer, 323 Md. at 283 , 592 A.2d at 1123 (emphasis added).

2017Assumption of risk “ ‘rests upon an intentional and voluntary exposure to a known danger, and therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of conduct toward him and to take his chances from harm from a particular risk.’ ” Crews v. Hollenbach, 358 Md. 627, 640-41 , 751 A.2d 481 (quoting Rogers v. Frush, 257 Md. 233, 243, 262 A.2d 549 (1970)).

2017Assumption of risk “ ‘rests upon an intentional and voluntary exposure to a known danger, and therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of conduct toward him and to take his chances from harm from a particular risk.’ ” Crews v. Hollenbach, 358 Md. 627, 640-41 , 751 A.2d 481 (quoting Rogers v. Frush, 257 Md. 233, 243, 262 A.2d 549 (1970)).

2007Co. v. Evans, 260 Md. 536, 544 , 273 A.2d 90, 94 (1971).

2007Co. v. Evans, 260 Md. 536, 544 , 273 A.2d 90, 94 (1971).

2011This logistical element of the incident, however, is a not relevant to an assumption of risk analysis, although it might be relevant to a contributory negligence analysis where a voluntary encounter with a known risk might be "itself unreasonable." See BG & E v. Flippo, 348 Md. 680, 706 , 705 A.2d 1144 (1998) (quoting Warner v. Markoe, 171 Md. 351, 359-60 , 189 A. 260, 264 (1937) ("Contributory negligence defeats recovery because it is a proximate cause of the accident which happens, but assumption of risk defeats recovery because it is a previous abandonment of the right to complain if an acc

2011This logistical element of the incident, however, is a not relevant to an assumption of risk analysis, although it might be relevant to a contributory negligence analysis where a voluntary encounter with a known risk might be "itself unreasonable." See BG & E v. Flippo, 348 Md. 680, 706 , 705 A.2d 1144 (1998) (quoting Warner v. Markoe, 171 Md. 351, 359-60 , 189 A. 260, 264 (1937) ("Contributory negligence defeats recovery because it is a proximate cause of the accident which happens, but assumption of risk defeats recovery because it is a previous abandonment of the right to complain if an acc

1997As we have stated in earlier cases involving the assumption of risk defense, "where the facts are not in dispute and the plaintiff intentionally and voluntarily exposed [her]self to a known danger, we [will] sustain[ ] the granting of a summary judgment or the direction of a verdict." Burke, 244 Md. at 158 , 223 A.2d at 189 ; see also Gibson, 245 Md. at 422 , 226 A.2d at 276 ; Schroyer, 323 Md. at 288-89 , 592 A.2d at 1126 ; Evans v. Johns Hopkins Univ., 224 Md. 234, 239 , 167 A.2d 591, 594 (1961); Finkelstein v. Vulcan Rail & Const. Co., 224 Md. 439, 441 , 168 A.2d 393, 394 (1961).

1997As we have stated in earlier cases involving the assumption of risk defense, "where the facts are not in dispute and the plaintiff intentionally and voluntarily exposed [her]self to a known danger, we [will] sustain[ ] the granting of a summary judgment or the direction of a verdict." Burke, 244 Md. at 158 , 223 A.2d at 189 ; see also Gibson, 245 Md. at 422 , 226 A.2d at 276 ; Schroyer, 323 Md. at 288-89 , 592 A.2d at 1126 ; Evans v. Johns Hopkins Univ., 224 Md. 234, 239 , 167 A.2d 591, 594 (1961); Finkelstein v. Vulcan Rail & Const. Co., 224 Md. 439, 441 , 168 A.2d 393, 394 (1961).

2011As pointed out supra, the focus in an assumption of the risk case is on the plaintiffs subjective knowledge, as “the doctrine of assumption of risk will not be applied [as a matter of lawjunless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff.” 15 Schroyer, 323 Md. at 283, 592 A.2d at 1123 (internal quotations omitted) (emphasis added); accord Chalmers, 247 Md. at 391 , 231 A.2d at 76 (“We have held that the doctrine of assumption of risk should be applied, as a matter of law, in cases

2011As pointed out supra, the focus in an assumption of the risk case is on the plaintiffs subjective knowledge, as “the doctrine of assumption of risk will not be applied [as a matter of lawjunless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff.” 15 Schroyer, 323 Md. at 283, 592 A.2d at 1123 (internal quotations omitted) (emphasis added); accord Chalmers, 247 Md. at 391 , 231 A.2d at 76 (“We have held that the doctrine of assumption of risk should be applied, as a matter of law, in cases

2012See ADM P’ship, 348 Md. at 90-91 , 702 A.2d 730 .

1999ANALYSIS The most recent Court of Appeals decision concerning the doctrine of assumption of risk is ADM Partnership v. *380 Martin, 348 Md. 84, 702 A.2d 730 (1997), in which the Court said: 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.

1997In that context the court stated that “[assumption of the risk is a defense to an action for negligence.” Id. at 790 . *621 The Court of Special Appeals, in an assault and battery case, cited numerous other assault and battery cases and stated that “[t]hese cases plainly establish that the doctrine of assumption of risk does not bar recovery for intentional torts.” Janelsins v. Button, 102 Md.App. 30, 42 , 648 A.2d 1039, 1045 (1994).

1997In that context the court stated that “[assumption of the risk is a defense to an action for negligence.” Id. at 790 . *621 The Court of Special Appeals, in an assault and battery case, cited numerous other assault and battery cases and stated that “[t]hese cases plainly establish that the doctrine of assumption of risk does not bar recovery for intentional torts.” Janelsins v. Button, 102 Md.App. 30, 42 , 648 A.2d 1039, 1045 (1994).

1997Courts that have subscribed to this view have held "that an injured worker does not have to put in evidence that he would have been fired if he had not done his job in order to show that his decision... was not voluntary under the doctrine of assumption of risk." Varilek, 146 Ill.Dec. at 413 , 558 N.E.2d at 376 .

1997Courts that have subscribed to this view have held "that an injured worker does not have to put in evidence that he would have been fired if he had not done his job in order to show that his decision... was not voluntary under the doctrine of assumption of risk." Varilek, 146 Ill.Dec. at 413 , 558 N.E.2d at 376 .

1997As we have stated in earlier cases involving the assumption of risk defense, "where the facts are not in dispute and the plaintiff intentionally and voluntarily exposed [her]self to a known danger, we [will] sustain[ ] the granting of a summary judgment or the direction of a verdict." Burke, 244 Md. at 158 , 223 A.2d at 189 ; see also Gibson, 245 Md. at 422 , 226 A.2d at 276 ; Schroyer, 323 Md. at 288-89 , 592 A.2d at 1126 ; Evans v. Johns Hopkins Univ., 224 Md. 234, 239 , 167 A.2d 591, 594 (1961); Finkelstein v. Vulcan Rail & Const. Co., 224 Md. 439, 441 , 168 A.2d 393, 394 (1961).

1997As we have stated in earlier cases involving the assumption of risk defense, "where the facts are not in dispute and the plaintiff intentionally and voluntarily exposed [her]self to a known danger, we [will] sustain[ ] the granting of a summary judgment or the direction of a verdict." Burke, 244 Md. at 158 , 223 A.2d at 189 ; see also Gibson, 245 Md. at 422 , 226 A.2d at 276 ; Schroyer, 323 Md. at 288-89 , 592 A.2d at 1126 ; Evans v. Johns Hopkins Univ., 224 Md. 234, 239 , 167 A.2d 591, 594 (1961); Finkelstein v. Vulcan Rail & Const. Co., 224 Md. 439, 441 , 168 A.2d 393, 394 (1961).

2012As courts in other jurisdictions have recognized, “[t]he disparity in knowledge between [doctors] and their [patients] generally precludes recipients of [medical] services from knowing whether a [doctor]’s conduct is in fact negligent.” Morrison v. MacNamara, 407 A.2d 555, 567 (D.C. 1979).

2011We stated, “the doctrine of assumption of risk will not be applied [as a matter of law] unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff.” Schroyer, 323 Md. at 283, 592 A.2d at 1123 (internal quotations omitted) (emphasis added); C & M Builders, 420 Md. at 295 , 22 A.3d at 882 (“[T]the party must have known and appreciated the risk either because it is not credible that a similarly situated person would not have done so, or because the risk was so obvious that it could not have b

2011We stated, “the doctrine of assumption of risk will not be applied [as a matter of law] unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff.” Schroyer, 323 Md. at 283, 592 A.2d at 1123 (internal quotations omitted) (emphasis added); C & M Builders, 420 Md. at 295 , 22 A.3d at 882 (“[T]the party must have known and appreciated the risk either because it is not credible that a similarly situated person would not have done so, or because the risk was so obvious that it could not have b

2010Rail Corp., 151 Ill.App.3d 55 , 103 Ill.Dec. 736 , 501 N.E.2d 1274, 1280 (1986) (holding that an instruction was required because plaintiff put on evidence of performing a "dangerous job under orders and in the customary manner without safe alternatives"). [9] The Court of Special Appeals concluded, and we agree, that the proposed instruction "was a correct statement of law and was not fairly covered by the other instructions." Collins, 187 Md.App. at 308, fn. 6 , 978 A.2d at 830, fn. 6. [10] The assumption of risk doctrine is explicitly addressed in the Federal Employers' Liability Act ("FELA

2010Rail Corp., 151 Ill.App.3d 55 , 103 Ill.Dec. 736 , 501 N.E.2d 1274, 1280 (1986) (holding that an instruction was required because plaintiff put on evidence of performing a "dangerous job under orders and in the customary manner without safe alternatives"). [9] The Court of Special Appeals concluded, and we agree, that the proposed instruction "was a correct statement of law and was not fairly covered by the other instructions." Collins, 187 Md.App. at 308, fn. 6 , 978 A.2d at 830, fn. 6. [10] The assumption of risk doctrine is explicitly addressed in the Federal Employers' Liability Act ("FELA

2010See Tiller, 318 U.S. at 65 , 63 S.Ct. at 450 , 87 L.Ed. at 617 (noting the Senate Judiciary Committee's belief that the doctrine of assumption of risk was unsuited for contemporaneous economic activities).

2010See Tiller, 318 U.S. at 65 , 63 S.Ct. at 450 , 87 L.Ed. at 617 (noting the Senate Judiciary Committee's belief that the doctrine of assumption of risk was unsuited for contemporaneous economic activities).

2010Rail Corp., 151 Ill.App.3d 55 , 103 Ill.Dec. 736 , 501 N.E.2d 1274, 1280 (1986) (holding that an instruction was required because plaintiff put on evidence of performing a "dangerous job under orders and in the customary manner without safe alternatives"). [9] The Court of Special Appeals concluded, and we agree, that the proposed instruction "was a correct statement of law and was not fairly covered by the other instructions." Collins, 187 Md.App. at 308, fn. 6 , 978 A.2d at 830, fn. 6. [10] The assumption of risk doctrine is explicitly addressed in the Federal Employers' Liability Act ("FELA

2010The Court of Appeals for the Second Circuit, relying on the proposition that `it is a mistake to give instructions on subjects not directly in issue in a case,' DeChico v. Metro-North Commuter R.R., 758 F.2d 856, 861 (2d Cir.1985) (citation omitted), has cautioned that `an assumption of risk instruction may be particularly inappropriate in cases where it "might well cause such confusion as to water down or even eliminate the issue of contributory negligence."' Id. at 861 (quoting Clark v. Pennsylvania R.R.

2010The Court of Appeals for the Second Circuit, relying on the proposition that `it is a mistake to give instructions on subjects not directly in issue in a case,' DeChico v. Metro-North Commuter R.R., 758 F.2d 856, 861 (2d Cir.1985) (citation omitted), has cautioned that `an assumption of risk instruction may be particularly inappropriate in cases where it "might well cause such confusion as to water down or even eliminate the issue of contributory negligence."' Id. at 861 (quoting Clark v. Pennsylvania R.R.

2010Co., 328 F.2d 591, 595 (2d Cir.), cert. denied, 377 U.S. 1006 , 84 S. Ct. 1943 , 12 L.Ed.2d 1054 (1964)); see also Clark v. Burlington N., Inc., 726 F.2d 448, 452 (8th Cir.1984) ('Cases discussing the issue have generally condemned the giving of an assumption of risk instruction in FELA actions.’); Heater v. Chesapeake and Ohio Ry.

2010Co., 328 F.2d 591, 595 (2d Cir.), cert. denied, 377 U.S. 1006 , 84 S.Ct. 1943 , 12 L.Ed.2d 1054 (1964)); see also Clark v. Burlington N., Inc., 726 F.2d 448, 452 (8th Cir. 1984) (`Cases discussing the issue have generally condemned the giving of an assumption of risk instruction in FELA actions.'); Heater v. Chesapeake and Ohio Ry.

2010Co., 497 F.2d 1243, 1249 (7th Cir.) (an assumption of the risk 'instruction is a confusing negative statement which refers to issues not involved in a FELA case'), cert. denied, 419 U.S. 1013 , 95 S.Ct. 333 , 42 L.Ed.2d 287 (1974). .

2010Co., 497 F.2d 1243, 1249 (7th Cir.) (an assumption of the risk `instruction is a confusing negative statement which refers to issues not involved in a FELA case'), cert. denied, 419 U.S. 1013 , 95 S.Ct. 333 , 42 L.Ed.2d 287 (1974). [15] Upon a finding that an employee unreasonably assumed risk, "[the] damage award may be subject to apportionment." Fashauer, 57 F.3d at 1280 (quoting Victor E.