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ADM Partnership v. Martin11/19/1997
ion of risk. See Schroyer, 323 Md. at 282, 592 A.2d at 1123 ("The critical distinction between contributory negligence and assumption of risk is that, in the latter, by virtue of the plaintiff's voluntary actions, any duty the defendant owed the plaintiff to act reasonably for the plaintiff's safety is superseded by the plaintiff's willingness to take a chance.").
In Gibson, the plaintiff's claim was barred by the defense of assumption of risk, not because the defendant owed no "duty" to the plaintiff, but because "the plaintiff had intentionally and voluntarily exposed himself to a known danger." Gibson, 245 Md. at 422, 226 A.2d at 276.
[The plaintiff] must be taken to have been aware of the danger of slipping on snow and of the burden the snow would add to physical effort taken in it; he must be charged with knowledge of the heaviness of a hose of large diameter in which there was fuel oil and of the possible physical effects on a man of his age of the effort to lift it or drag it through the snow. If he did not appreciate this sooner, he must have when he took hold of the hose. Yet he voluntarily undertook to take his chance of harm from the effort of pulling it to the house. This voluntary undertaking in the environment and circumstances present freed the defendants as a matter of law from liability for harm which might flow from the undertaking.
Id. at 422, 226 A.2d at 275-76. Thus, the plaintiff in Gibson, similar to the plaintiffs in Burke and in the instant case, exercised his own volition in encountering a known danger, and thus voluntarily assuming the risks it entails. As 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 herself 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 Co., 224 Md. 439, 441, 168 A.2d 393, 394 (1961).
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENTS.
Eldridge, J., dissents
For the reasons set forth in Judge Alpert's opinion for the Court of Special Appeals, Martin v. ADM, 106 Md. App. 652, 666 A.2d 876 (1995), I would affirm the judgment of the Court of Special Appeals.
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