Assumption of Risk Defense in Maryland Discussed

 Posted on September 19, 2008 in Defenses

Next to contributory negligence, no defense is raised more in a Maryland personal injury case than assumption of risk. It is well-established in Maryland that in order to establish the assumption of risk defense, the defendant bears the burden of proving that the plaintiff: (i) had knowledge of the risk of the danger; (ii) appreciated that risk; and (iii) voluntarily confronted the risk of danger. The majority of the cases turn on the issue of voluntariness.

In order for a plaintiff to have voluntarily exposed himself to the risk of a known danger, “there must be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct.” ADM Partnership v. Martin, 348 Md. 84, 92, 702 A.2d 730, 734 (1997).

As the Maryland Court of Appeals has explained:
[I]n order for a plaintiff to assume voluntarily a risk of danger, there must exist “the willingness of the plaintiff to take an informed chance,” . . . ; there can be no restriction on the plaintiff’s freedom of choice either by the existing circumstances or by coercion emanating from the defendant. This is so because even where the plaintiff does not protest, the risk is not assumed where the conduct of the defendant has left him no reasonable alternative. Where the defendant puts him to a choice of evils, there is a species of duress, which destroys the idea of freedom of election.

the Restatement (Second) of Torts. Section 496E of the Restatement provides:
(1) A plaintiff does not assume a risk of harm unless he voluntarily accepts the risk.
(2) The plaintiff’s acceptance of a risk is not voluntary if the defendant’s tortious conduct has left him no reasonable alternative course of conduct in order to (a) avert harm to himself or herself, or
(b) exercise or protect a right or privilege of which the defendant has no right to deprive him.

In Maryland, “if a person was compelled to act and had no freedom of choice regarding whether to act,” he will not be said to have acted voluntarily, as a matter of law. See Crews v. Hollenbach, 358 Md. 627, 648, 751 A.2d 481 (2000).

For further information on the assumption of risk defense in Maryland personal injury cases, please contact Steve Silverman for a complimentary consultation.