In Maryland, assumption of risk is a complete defense in a personal injury case.  This defense is applicable when the plaintiff encounters a dangerous situation and voluntarily confronts the risk.  The classic example is when a pedestrian decides to walk over an icy portion of a parking lot in a shopping center, instead of avoiding the slippery ice.  If the pedestrian slips on the ice and is injured, the shopping center is not responsible for the pedestrian’s injuries.

The assumption of risk defense applies when a person intentionally and voluntarily exposes himself or herself to a known risk.  The defendant needs to show that the person: (1) had knowledge of the risk of danger; and (2) voluntarily confronted the risk of danger. 

A person’s knowledge of the risk of danger can be established by his or her sensory perception of the danger or objective knowledge of a risk that the law deems so obvious that it could not have been encountered unwittingly.  For example, everyone knows that walking on any icy path poses a risk of slipping and falling.  The fact that the pedestrian tried to carefully traverse the icy path or took other precautions to minimize the risk of falling are not relevant, because the pedestrian knowing and voluntarily assumed the risk of injury.

However, there are limited circumstances in which a person has knowledge of the risk, but did not voluntarily confront the risk.  This could happen if the only walkway to a person’s apartment is icy.   See Thomas v. Panco Management of Maryland, LLC, 443 Md. 387, 413 (2011) (holding a tenant did not assume the risk of injury by walking on an icy path when there was no other “reasonably safe alterative course of action”).  In contrast, a mother who walked on icy parking lot and fell while trying to visit her daughter at college had assumed the risk of injury, because she was not “forced against her will to confront the risk of danger of walking on snow and ice”.  Morgan State University v. Walker, 397 Md. 509, 519 (2007).  Likewise, a delivery person who voluntarily confronted the risk of walking across an icy path was barred from recovering damages for her injuries, even though she was afraid she would lose her job if did not make the delivery.  ADM Partnership v. Martin, 348 Md. 84, 94-5 (1997).

Bottom line: The old adage that “it’s better to be safe than sorry” applies when a person has the opportunity to avoid confronting a known risk.