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Imbraguglio v. Great Atlantic & Pacific Tea Company3/10/2000
ams] raised him up to approximately six to seven feet. The pallet itself was between six and seven feet off the floor. The pallet was still in the same position when I got over there after the accident had happened. I asked [Williams]--I said, 'Is that where the pallet was when [Imbraguglio] fell?' He said, 'Yeah. I haven't touched anything.'" (Emphasis added).
The circuit court properly could have considered the above-quoted evidence. The Kidd testimony was presented by Respondents, and Petitioner's reasons for objecting thereto were not well taken. Further, even if Williams's statement to Kidd, as presented by Kidd in his testimony, should be excluded from consideration, it is nevertheless clear that Kidd arrived on the scene promptly after the accident and personally observed the height to which the forks were then elevated. From this a trier of fact properly could infer that the platform was less than seven feet above the floor when Imbraguglio fell. Common human experience indicates that Williams's first concern would have been to get help for Imbraguglio and not to play with the elevation controls on the forklift.
The height to which the platform was elevated is a material factor under the law of assumption of risk and by reference to OSHA safety regulations, as we explain below.
III.
"Assumption of the risk is a defense applicable to negligence claims." JBG/Twinbrook Metro Ltd. Partnership v. Wheeler, 346 Md. 601, 619, 697 A.2d 898, 907 (1997). The defendant must specially plead assumption of risk under Maryland Rule 2-323(g)(3), and the defendant bears the burden of proof. See ADM Partnership v. Martin, 348 Md. 84, 90-91, 702 A.2d 730, 734 (1997). Specifically, "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." Id. (citing Liscombe v. Potomac Edison Co., 303 Md. 619, 630, 495 A.2d 838, 843 (1985)).
As the reasoned justification for this defense, this Court has stated that " he doctrine of assumption 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." Rogers v. Frush, 257 Md. 233, 243, 262 A.2d 549, 554 (1970). W.P. Keeton et al., Prosser and Keeton on the Law of Torts § 68, at 489 (Lawyer's 5th ed. 1984), state that " n the usual case, [the plaintiff's] knowledge and appreciation of the danger will be a question for the jury; but where it is clear that any person in his position must have understood the danger, the issue may be decided by the court." (Footnote omitted).
According to Respondents, Imbraguglio is deemed to have known and appreciated the risk under Martin. Citing Schroyer v. McNeal, 323 Md. 275, 592 A.2d 1119 (1991), Gibson v. Beaver, 245 Md. 418, 226 A.2d 273 (1967), and Evans v. Johns Hopkins University, 224 Md. 234, 167 A.2d 591 (1961), this Court stated in Martin:
"'In determining whether a plaintiff had knowledge and appreciation of the risk, an objective standard must be applied and a plaintiff will not be heard to say that he did not comprehend a risk which must have been obvious to him.' Gibson, 245 Md. at 421, 226 A.2d at 275. Thus, 'when it is clear that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.' Schroyer, 323 Md. at 283-84, 592 A.2d at 1123; see also Gibson, 245 Md. at 421, 226 A.2d at 275 (quoting W. Prosser, Handbook of the Law of Torts, § 55, at 310 (2d ed. )); Evans, 224 Md. at 238-39, 167 A.2d 59
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