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Crews v. Hollenbach5/11/2000
llingly to act." ADM Partnership, 348 Md. at 93, 702 A.2d at 735. (citations omitted). The plaintiff argued that she did not act voluntarily because her only options were to attempt delivery or return in failure to her employer. She testified at trial that she believed if she did not make the delivery her employer would lose the delivery contract and her employment would be terminated. After examination of the record, we rejected the plaintiff's argument.
The only evidence in the record that supported the plaintiff's argument was her own testimony regarding her belief that her employment was at risk. We determined that her subjective testimony, without more, was not enough to create an issue for the jury. We stated that:
etermining whether [the plaintiff] acted voluntarily when she encountered the ice covered walkway or was responding to economic necessity requires proof of her state of mind. Ordinarily, that proof is supplied by direct evidence, i.e., testimony by the person whose state of mind is at issue, or by circumstantial evidence, i.e., testimony concerning facts and circumstances from which the state of mind may be inferred. While the testimony of the affected person ordinarily is sufficient, without more, to support a verdict and thus to generate a jury question . . . where the proof of the state of mind itself depends upon the proof of another fact, the witness's testimony alone will not suffice. There must, in addition, be some evidence of that critical fact there is not a shred of evidence from which [the plaintiff's] concern for her job if the delivery were not made can be inferred. Id. at 100-01, 702 A.2d at 739. (citations omitted).
Because there was no evidence in the record to support her belief that her employment was in jeopardy by a compulsion to make the delivery, or any evidence from which such an inference could be drawn, we reversed the judgment of the Court of Special Appeals and affirmed the Circuit Court's grant of judgment to the defendants. See id. at 104, 702 A.2d at 740.
In our analysis of ADM Partnership, we relied upon Burke v. Williams, 244 Md. 154, 223 A.2d 187 (1966). Burke, similar to ADM Partnership, involved a delivery person's suit against a property owner for injuries sustained from a slip and fall accident. The plaintiff in Burke delivered sinks to a house under construction in Prince George's County. When the plaintiff arrived at the house, the property owner directed him to bring the sinks through the house into the kitchen. Because the house was under construction, the plaintiff had to carry the sinks through the house over a walkway made of wooden planks. After two successful trips, the plaintiff slipped on a damp plank and fell into a ditch on his third journey. He sued the homeowner in a negligence action. The homeowner defended by asserting, among other things, that the plaintiff assumed the risk by undertaking to deliver the sinks into the house.
At the close of the plaintiff's case, the trial court granted the defendant's motion for judgment based, in part, on its finding of the plaintiff's voluntary assumption of a known risk. On appeal, the plaintiff asserted that once he arrived at the delivery site his actions were involuntary because the defendant provided him with only one means of ingress and egress to the house via the wooden plank path and, if he did not complete the delivery, he would have been discharged from his job. His argument, in essence, was that he was constrained by the economic necessity of keeping his job. We affirmed the trial court's judgment because the plaintiff offered no evidence that the defendant or his employer ever demanded that he make the delivery across the pathway into
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