Maryland Injury and Disability Law : Washington DC Metro Injury & Disability Lawyer & Attorney : Greenberg & Bederman : Accidents, Falls, Medical Malpractice : Maryland, DC, Virginia

The day after Thanksgiving is traditionally known as “Black Friday” among merchants. This title doesn’t actually specify anything dark or foreboding. Instead it means that, due to the lowered prices and heavy advertising, this is quite often the day that brings many businesses out of the “red” (or in debt,) and into the “black” (or profitability.) Hundreds of thousands of early Christmas shoppers show up sometimes as early as five in the morning in order to take advantage of low prices.

Unfortunately, the insatiable American need to save money can sometimes lead to tragic consequences. For instance, last year in Nassau, Long Island, a 34 year old Wal Mart worker was killed in a stampede when he opened the door to let the throng of shoppers in. In addition to this, three other shoppers suffered injuries, and another had to be hospitalized for observation due to the fact that she was pregnant.

It is very easy to look at a situation like this and declare it an unavoidable tragedy, but as lawyers who represent people who have been injured due to no fault of their own, we view what happened last year in Nassau as a tragedy that should have been avoidable. While it is difficult for us or anyone to describe the needless death of someone as “textbook,” the incident at the Nassau Wal-Mart was in legal terms, a premises liability. Who was responsible for keeping order in the crowd? Who was responsible for making sure that these throngs of thousands of people were in line instead of milling around the front door in a bunch? Who told Jdimytai Damour to open the door without sending someone out to get people in line? Why weren’t barricades placed in the parking lot in order to corral the crowd? Why weren’t personnel outside the store with walkie talkies or radios? Or bullhorns for that matter? Why wasn’t there some sort of lottery system involved in getting people inside, or in steering people toward the items that everybody really wanted? Any one of these precautions could have saved Mr. Damour’s life, yet none of them were followed. The operators of this store simply threw the doors open and hoped for the best.

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Assumption of Risk

About every 6 months or so, I get the itch to do something adventurous. Recently, I investigated skydiving. After doing some amateur sleuthing into the requirements, etc., I noticed that in order to tempt the forces of gravity, I needed to sign a Waiver of Liability form. In essence, the waiver said: “If you are injured, we will not be responsible. If you die, we will not be responsible. You indemnify the company from any and all liability.” As a personal injury attorney, the giant, bright purple neon sign that reads “DANGER” began blinking in my mind’s eye.
In truth, many businesses that offer such high-risk adventures try to protect themselves from liability for injuries by getting customers to sign liability waivers. These provisions are extremely common for recreational activities that involve a higher-than-normal risk of injury, including: skiing, cycling, skating, bungee jumping, etc.
Without question, some of these activities are inherently dangerous. Throwing myself off a bridge hoping that a single strip of rubber will prevent me from injury is undoubtedly ripe with risk, regardless of how safe the activity’s track record might be. The inherent danger in these activities has an important legal effect – the application of the doctrine of assumption of risk
A person who knowingly engages in an activity is deemed to have accepted all of the risks of injury inherent to that activity. The negligent party will escape liability if the injury occurred in a manner that is inherent to the nature of the activity. The assumption of risk doctrine is an available defense in Maryland, DC, and Virginia.
The law does draw a distinction between express and implied assumption of risk. Express assumption of risk exists when, by contract or the like, a person agrees to accept risk (like in the skydiving example above). Implied assumption exists when the law implies a voluntary acceptance of an activity’s risk by looking to the person’s behavior, as opposed to some explicit agreement. As such, even without a written waiver or acceptance, a person can assume the risk and lose the right to recover for injuries. For example, choosing to attend a Nationals game may lead a court to determine that the plaintiff assumed the risk of being hit by a foul ball, if sitting in an area where such a risk is reasonable.
An express agreement that acknowledges risk and waives liability can also be overturned in extreme cases – if contrary to public policy. A property owner or manager who fails to take reasonable measures to prevent common, obvious injuries could be held liable. The best example is the nets behind home plate at a baseball stadium. Because foul balls in that area are such an obvious danger for people, it would be negligent if the stadium did not have them, regardless of any assumption of risk. Courts seek to prevent reckless owners from avoiding responsibility by using waivers of liability. This creates an incentive for property owners and managers to keep the property and/or equipment in good, safe condition for others.
Nevertheless, the assumption of risk doctrine is an important consideration when evaluating an accident. The doctrine seriously hampers most weather-related slip-and-fall accidents. The courts have consistently held that if a person chooses to walk, ride, etc., in bad conditions, they accept the risk of being injured. This is a topic the blog previously explored when I fell down the Metro escalator. Don’t worry...I’m fine now. Even pride heals.

To learn more about premises liability issues, please see our website at G&B website and click on premises liability.

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As I walked down the escalator at my neighborhood Metro station and sipped my morning green tea, I slipped on wet stairs and slid down the escalator about 10 feet.  Fortunately, other than my embarrassment, some spilled tea, and arriving late to work, I suffered only some minor bruises and aches.

When I got to the office, some of my co-workers asked if I had notified Metro and filled out an accident report. I did not. The reason -- I knew that Metro was not responsible for my particular accident. When walking in rain, snow, or any wet-conditions, it is my responsibility to be as careful as possible.

Every year, I receive phone calls from people seeking consultations and advice for accidents involving slips on snow and ice. The vast majority of these cases are rejected. It is extremely difficult to prove that some person is responsible for the results of weather. The District of Columbia has repeatedly upheld decisions favoring landlords and/or property managers when people slipped on ice on their property. Why? It's simply too difficult to prove that the person(s) is/are liable.

In order for liability to be demonstrated, a person must either know or should have known that a danger exists. Since ice and moisture can appear suddenly, the burden is on the plaintiff to show that the appropriate person was notified of the dangerous condition and failed to act reasonably within a reasonable period of time.

The best advice is simply to watch and be careful. I will definitely be wearing the snow boots I had from my mid-western winter days on my way to work tomorrow.

To learn more about premises liability or slips and falls, please see our website at premises liability.  To learn more about our personal injury lawyers, please click on personal injury lawyers maryland and read our firm bios on Andrew Bederman, Roger Greenberg, or Jason Fernandez.

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