You don’t see many Maryland slip-and-fall cases in U.S. District Court. But Bardroff v. Sanexen Water is the rare slip and fall that found its way to federal court. Last week, Federal Magistrate Judge J. Mark Coulson had an opportunity to rule on a slip-and-fall motion in such a case.
Facts of Bardroff v. Sanexen Water
Sanexen Water began working on the water system on Matthews Drive in Harford County where the plaintiff lived. It was a big job. Temporary water pipes were placed along the entire length of Matthews Drive, and door hangers were placed on residents’ doors, warning them to be careful around the temporary water network. Plaintiff Bardroff interpreted this warning as an instruction for residents to avoid damaging the temporary water network.
The temporary pipes were six inches in diameter, and Sanexen Water covered portions of the pipes that crossed driveways with asphalt. In September 2018, the defendant began removing the temporary pipes from Matthews Drive. However, a portion of the pipe remained in front of Bardroff’s home at the time of her fall.
Before her slip and fall, Bardroff had complained to Sanexen Water about the remaining pipe and its potential hazard. She warned the defendant about the risk of children tripping over the pipe during Halloween and informed them that the asphalt was going to get loose and become a problem.
If you are a lawyer, you are wondering how her eventual trip over the pipe could be actionable if she knew the pipe was there. But that is not what happened. The plaintiff and her husband arrived home after a day of shopping. He parked at their house behind another car. Unable to walk between the two vehicles, the plaintiff went around the back of her husband’s vehicle and attempted to walk on the left side of the asphalt covering the pipe across her driveway, while holding an aluminum turkey tray and a grocery bag. The pipe across the driveway was still covered by asphalt. As the plaintiff stepped on the asphalt-covered pipe, the asphalt sank and gave way, causing her to fall to her hands and knees and sustain various injuries.
Defendant has made four arguments for why the Court should grant summary judgment in its favor: (1) there is no genuine issue of material fact regarding Defendant’s notice of the condition of the asphalt, (2) Defendant owed no duty to Plaintiff because the condition was open and obvious, (3) Plaintiff assumed the risk, and (4) Plaintiff was clearly contributorily negligent. The court rejected all three.
Maryland Slip and Fall Law
Under Maryland law, a plaintiff seeking to recover damages in a negligence action bears the burden of proving four facts:
- that the defendant was under a duty to protect the plaintiff from injury,
- that the defendant breached that duty,
- that the plaintiff suffered actual injury or loss, and
- that the loss or injury proximately resulted from the defendant’s breach of the duty.
Maryland has adopted the rule in the Restatement (Second) of Torts § 343 (1965) for the duty a landowner owes to invitees. Section 343 provides: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he:
- knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees;
- should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and
- fails to exercise reasonable care to protect them against the anger.
Judge Coulson’s Opinion
Judge Coulson rejected all four of Sanexen Water’s arguments.
Genuine Dispute of Material Fact Regarding Defendant’s Knowledge of Asphalt’s Condition
The plaintiff argues that the defendant created the dangerous condition. The defendant, however, claims that the asphalt “cold patch” at the location was compacted and secure when it was first placed, and it remained so when some pipes on either side of the plaintiff’s residence were removed.
The defendant argues that there is no genuine dispute about whether the act of removing some pipes created the loosening or softening of the remaining asphalt. The court agrees with the defendant. The plaintiff’s deposition testimony suggests that the asphalt was becoming loose due to pipes being pulled up and down the streets. However, the plaintiff’s opposition clarifies that the asphalt began to slowly rise up and out due to cars driving over it.
The court concludes that the defendant did not create the dangerous condition, as cars driving over the asphalt, not the defendant’s removal of other pipes, caused the asphalt to loosen. But although the defendant did not create the dangerous condition, the court believes there is a genuine issue of material fact regarding the defendant’s knowledge of the dangerous condition. After the defendant removed other pipes from Matthews Drive, the plaintiff called the defendant several times to complain about the pipe at the front of her home.
While the plaintiff was very honest and does not remember if she mentioned the asphalt becoming loose, she did inform the defendant that the pipe was rising into the air. If a jury believes her, this notice is sufficient to create a question of fact for a jury regarding the defendant’s knowledge, whether actual or constructive, of the asphalt’s dangerous condition.
Open and Obvious Danger: A Question for the Jury
Under Maryland law, landowners or occupiers have no duty to warn invitees of open, obvious, and present dangers. Determining whether a condition presents an open and obvious danger is typically a fact-specific inquiry that should be left to the jury. The court examined several cases offered by the defendant in support of their position that the danger of the asphalt crumbling under the plaintiff was open and obvious, but did not find any of these cases compelling enough to make such a determination as a matter of law. The plaintiff’s case is distinguishable from those cited by the defendant, as the plaintiff did not provide testimony indicating that the asphalt at issue was in a state of significant disrepair.
No Assumption of Risk as a Matter of Law
In Maryland, assumption of risk serves as an affirmative defense. It involves the plaintiff’s consent to relieve the defendant of any obligation of conduct towards them, accepting the potential harm from a specific risk. This defense completely bars the plaintiff’s recovery. To succeed in this defense in Maryland, the defendant must prove that the plaintiff: (1) had knowledge of the risk, (2) appreciated the risk, and (3) voluntarily confronted the risk. Generally, the issue of assumption of risk is decided by a jury.
The defendant asserts that the plaintiff was fully aware of the deteriorated condition of the asphalt where she stepped and fell. The court, however, disagrees with this argument after reviewing the plaintiff’s deposition transcript. The court notes that the plaintiff testified about the asphalt crumbling after she stepped on it, but did not mention noticing the crumbling prior to her fall. The testimony is also unclear whether the plaintiff knew the asphalt was loose or merely assumed it was. Even if the plaintiff assumed the asphalt was loose, she did not appreciate the extent of its looseness and believed it looked solid when she stepped on it. Moreover, the defendant originally placed the asphalt to allow people and vehicles to pass without damaging the underlying pipe.
Plaintiff’s Contributory Negligence Not Established
Contributory negligence in Maryland refers to the failure to observe ordinary care for one’s own safety. Typically, the question of whether a plaintiff was contributorily negligent is reserved for a jury. The burden of proving contributory negligence lies with the defendant so it is tough road to win summary judgement on contributory neligence.
The defendant claims that the plaintiff was contributorily negligent due to the open and obvious nature of the condition at issue. The court has already concluded that the danger of the asphalt cannot be determined as a matter of law.
The court shot down this argument. The plaintiff indicated that despite the asphalt thinning towards its edges, she believed it was solid enough to walk across. The court cannot conclude that the presented facts show negligence on the plaintiff’s part that ordinary minds would agree upon.