H:\CASES\130a10.wpd

George Poole v. Coakley & Williams Construction, Inc., et al., No. 130

September Term 2010, Opinion by Greene, J.

SUMMARY JUDGMENT– ASSUMPTION OF THE RISK- Summary judgment may not

be granted on the grounds of assumption of the risk when the undisputed facts permit more

than one reasonable conclusion regarding the plaintiff’s knowledge of the risk of the danger

or there is a genuine dispute as to the material facts.

ASSUMPTION OF THE RISK– In order for a plaintiff to have assumed the risk of his or

her injuries as a matter of law, we require that a plaintiff “must” have known that the risk

was actually present, not that he or she “would,” “should,” or “could” have known that the

risk “might well be present.” For a plaintiff to have knowledge of the risk, as a matter of law,

there must be undisputed evidence that he or she had actual knowledge of the risk prior to

its encounter. Actual knowledge can be proven, for example, by evidence of the particular

plaintiff’s subjective knowledge of the risk, e.g. previous experience with or sensory

perception of the danger, or evidence that the risk was so obvious that it could not have been

encountered unwittingly.

THIRD PARTY COMPLAINT – SUMMARY JUDGMENT – When sufficient evidence is

presented regarding the contingent liability of a third-party defendant to the third-party

plaintiff,the third-party defendant’s motion for summary judgment should not have been

granted.

STATUTE OF LIMITATIONS – PERSONAL INJURY CLAIM – When the time of accrual

of a cause of action is not in dispute, a plaintiff may not rely on the common law “discovery

rule” in order to toll the limitations period and add a new defendant as a party through an

amended complaint.

IN THE COURT OF APPEALS

OF MARYLAND

No. 130

September Term, 2010

GEORGE POOLE

COAKLEY & WILLIAMS CONSTRUCTION,

INC., ET AL.

Bell, C.J.

Harrell

Battaglia

Greene

*Murphy

Adkins

Barbera,

JJ.

Opinion by Greene, J.

Filed: October 27, 2011

*Murphy, J., now retired, participated in the

hearing and conference of this case while an

active member of this Court; after being recalled

pursuant to the Constitution, Article IV, Section

3A, he also participated in the decision and

adoption of this opinion.

Appellant’s original complaint did not allege a specific injury but stated only that he

had suffered “severe and permanent injuries to his body, such that he is permanently limited

to working part-time.” Appellant claimed damages in the amount of $1,000,000.00.

“Black ice” is a unique weather condition that does not necessarily pose the same

risk as snow or visible “white ice.” Black ice is difficult to see because it reflects less light

than regular ice, and therefore does not appear glossy or slick, “which is a result of its

columnar grain structure.” See American Meteorological Society, Glossary of Meteorology

88 (2nd ed. 2000). In contrast, white ice has “a white appearance caused by the occurrence

(continued...)

In this case, we consider whether George Poole’s (“Appellant’s”) personal injury

claim for injuries suffered when he slipped and fell on black ice was properly resolved on

summary judgment based on Appellant’s alleged assumption of the risk. Based upon the

record, we cannot say, as a matter of law, that Appellant had knowledge of the risk that

resulted in injuries, when, in making a delivery during the course of his employment, he

chose to walk through a stream of running water that flowed across a parking lot. Therefore,

we hold that it was error for the trial court to resolve the question of assumption of the risk

on summary judgment.

Facts and Procedural History

Appellant sued Coakley & Williams Construction, Inc. (“Coakley” or “Appellee” or

“Cross-Appellant”) and Forsgate Ventures II, LLC (“Forsgate” or “Appellee”) in the Circuit

Court for Montgomery County on November 13, 2008. Appellant alleged that at

approximately 11 o’clock in the morning on December 21, 2005, he was walking through the

parking lot toward the back entrance of his place of employment, located at 22610 Gateway

Center Drive in Clarksburg, Maryland (“the Gateway Center”), when he slipped, fell, and

injured

himself on what he surmised to be “black ice”

while wadding through a stream of

(...continued)

of bubbles within the ice. The bubbles increase the scattering of all wavelengths of light”

making the ice easier to see. American Meteorological Society, supra, at 842. The National

Oceanic and Atmospheric Administration has called “black ice” a “slang reference to patchy

ice on roadways or other transportation surfaces that cannot easily be seen.” National

Oceanic and Atmospheric Administration, Black Ice, National Weather Service Glossary,

http://www.weather.gov/glossary/index.php?word=black+ice. In Allen v. Marriott

Worldwide Corp., 183 Md. App. 460, 469, 961 A.2d 1141, 1146 (2008), cert. denied, 408

Md. 149; 968 A.2d 1065 (2009), the Court of Special Appeals was the first appellate court

in our State to record a definition of “black ice,” stating that “[t]he term black ice describes

the visual impression created by a relatively thin layer of transparent ice lying over a black

surface, such as tar macadam or asphalt.” Allen, 183 Md. App. at 469, 961 A.2d at 1146;

accord Thomas v. Panco Mgmt. of Md., LLC, 195 Md. App. 245, 254-55, 6 A.3d 304, 310

(2010), cert. granted, Thomas v. Panco Mgmt., 418 Md. 190, 13 A.3d 798 (2011) (adopting

the definition, in Allen, of black ice); see Merriam-Webster’s Collegiate Dictionary 129

(11th ed. 2005) (defining black ice as “a nearly transparent film of ice on a dark surface (as

a paved road or a body of water) that is difficult to see”).

water that created a path through an otherwise icy parking lot. At the time of the incident,

Appellant had been a courier, with some supervisory duties over the “transportation

department,” for Diagnostic Pathology Services, Incorporated. Appellant’s responsibilities

included transporting lab specimens from off-site doctors’ offices back to the laboratory

located at the Gateway Center, a combination warehouse/office/strip center complex.

Appellant described normally parking in spots located behind the building in one, long

parking lot shared by employees of other businesses in the building. On the day of his injury,

Appellant parked in this rear parking lot even though there was a front and side parking lot

with spaces available to him and other employees of Diagnostic. Due to construction at the

Gateway Center, Appellant alleged that water was being pumped into the parking lot where

he was walking, resulting in a stream of water an inch deep and between two and three feet

wide running through the lot into a drain. Appellant alleged that he slipped and fell on black

ice, which he could not see and did not know was in the path that he chose to take through

the otherwise wet and icy parking lot. As pertinent, we shall discuss additional facts

regarding the circumstances of Appellant’s injury infra.

Appellee Forsgate allegedly owned and controlled the Gateway Center building, and

Appellee Coakley, itself or through its agents, allegedly pumped water out of pipes in a

nearby construction site and drained water into the parking lot causing the black ice to form.

Appellant alleged that Forsgate was negligent in its failure to maintain the parking lot, that

Coakley was negligent in failing to prevent a stream of water from flowing onto the parking

lot, thereby causing the black ice to form, and that both entities were negligent for failing to

prevent, warn of, or remove the black ice. Coakley filed a third party complaint against Judd

Fire Protection, LLC (“Judd” or “Cross-Appellee”) alleging that Judd, as its subcontractor

hired for maintenance on the building’s fire sprinkler system, was responsible for the alleged

water flow onto the property. Forsgate filed a third-party complaint against Diagnostic.

On October 15, 2009, nearly one year after filing the original complaint, Appellant

filed an amended complaint naming Transwestern/Carey Winston, LLC (“Transwestern”)

and The Brickman Group Ltd. LLC (“Brickman”) as defendants. The amended complaint

alleged that as the management company for the Gateway Center, Transwestern had a duty

to maintain the parking lot in a safe condition. Additionally, Appellant claimed that

Brickman, the company under contract for snow and ice removal for the property, had the

duty to properly remove snow and ice from the premises, including the duty to prevent, warn

The trial judge ruled, as a matter of law, that Diagnostic, the employer, could not

be held liable to Forsgate, the property owner, because Diagnostic’s lease made clear that it

had “no duty to maintain the parking lot.” Forsgate has not appealed that ruling and

Diagnostic is not a party to this appeal.

As discussed infra, the judge also found that the statute of limitations had expired as to

Appellant’s claim against Transwestern.

of, or remove black ice and water so that it was safe for all users of the building to traverse

the parking lot. Brickman moved to dismiss the amended complaint for violation of the

statute of limitations, and the motion was granted.

Prior to trial, Coakley, Forsgate, Transwestern, Diagnostic, and Judd moved for

summary judgment.

At a hearing on March 3, 2010, the trial judge granted summary

judgment in favor of each of the original defendants and third-party defendants on the ground

that Appellant had assumed the risk of his injury.

The trial judge had before him for

consideration on the issue: Appellant’s deposition testimony, in which he responded to

questions from counsel for Forsgate, Coakley, Judd and Diagnostic; Appellant’s Affidavit;

Answers to Interrogatories; and Complaint. From these documents, several allegations are

consistent: that Appellant believed that he took a safe path to the building by choosing to

walk through a running stream of water; that he did not believe ice could form beneath

running water; that he had walked through the same stream at least 5-7 times during the week

prior to his fall without incident; that the conditions in the parking lot were more wet and less

icy on the morning of his accident than the night before; and that he did not see ice in the

path he chose to take.

Appellant did not recall very much about the weather conditions on the day of his

injury. He testified in his deposition that it was “a little overcast,” and possibly “freezing the

day before” but he could not recall with clarity whether there had been freezing temperatures

on the morning of his injury. Appellant testified that, the day before his injury, there was

water and ice “in the same general area” where he fell and that he had noticed that area “was

slippery” and even warned co-workers to be careful. His testimony indicated, however, that

his awareness of the conditions on the lot differed between the night before and the day of

the incident:

Q. Was it water and the same kind of general condition you

observed the next morning?

A. It was a little different. It was – it was a little bit more

runnier than it was the night before. Night before, it was, like,

pretty much you could tell it was all ice.

Appellant testified that there “was ice everywhere,” but then clarified the location of visible

ice in the parking lot and testified that he could not see ice in the path he ultimately chose to

walk through:

Q. What did you observe of the lot as you were – when you

pulled into it that morning, the condition of the lot?

A. It was pretty wet.

Q. Okay. Where was the ice located?

A. In that general area.

Q. Same area where you fell?

A. Right. There was spots of it all over and the loading dock –

It was ice everywhere.

* * *

Q. Why did you feel that area was safe when you walked on it?

A. Because it had running water. You couldn’t really see any

ice, just the running water.

* * *

Q. So just so the record’s clear, could you see any evidence of

ice in the area that you stepped when you – in the area that you

fell in?

* * *

A. Well, there was flowing about an inch of water, so I assumed

that it would be safe to walk through that area.

Q. The question is could you see any ice when you walk –

A. No.

Q. – through the–

* * *

A. Could not see any.

Q. Okay. Now, so when you were asked before about ice being

all over this general area, were the three areas that you pointed

out the only areas that you can remember that there was ice in?

* * *

A. Yeah, it was vague that whole day, but I would not walk

through the ice, I would walk through the water. I’d rather get

wet than slip. So I walked through the ice – I mean through the

water.

Appellant’s earlier deposition testimony revealed:

Q. I mean, you’re a grown man. You know that if you walk on

ice that you could possibly slip.

A. Oh, yes, I avoided the ice. You could see some spots of ice

and some not. Of course I wouldn’t –

Q. You could possibly slip on ice, you were aware of that?

A. Of course. That’s why I was kind of using the cars to kind

of steady me through that area.

Q. And you saw that there was ice in that area, right?

A. There was ice everywhere out there.

Ultimately, Appellant used a diagram to illustrate the location of three patches of ice on the

parking lot, the drain toward which the stream of water was flowing, the parked cars, and the

building. Appellant was consistent in his description of the dimensions of the stream of

water through which he walked. He described it as one inch deep and two to three feet wide.

Q. And when you say there’s a flow of water, how much water

are we talking about? How deep?

A. Probably about – I’d say about like that, because it didn’t

come over my shoes or anything. . . . say about an inch.

* * *

Q. I’m trying to get – how wide was the stream? Was it a foot,

two feet, three feet?

A. Probably about two, three feet. It was a pretty good stream.

Q. So then what – you walked – when you walked in the

stream, is that when you fell? Or was it beside the stream?

A. It was water everywhere, so you had to walk through it.

There was water coming from all directions. And then I got,

like I say, it was about there, and I started just to walk towards

this X and went through the water.

Appellant also testified that he had walked through this area previously:

Q. How many times had you walked through this water area

before you fell?

A. Every day I went to work.

Q. So you said it had been there about a week?

A. Uh-huh, yeah.

Q. So you had walked through there–

A. Yes.

Q. – five to seven times?

A. Probably, yes.

Q. And then had you walked back through there on the way

out from work at the end of the day?

A. Yes.

Q. And I guess you had walked through there from time to

time more than one time per day; is that right?

A. Yes, uh-huh.

Q. Had you ever fallen before?

A. No.

Q. Did you see what you actually fell on?

A. No. All I know is both feet went out from under me.

Appellant also testified that:

A. When I fell I could feel my hand hit the ice. It was, like, wet

and that sort of thing.

Q. What was wet?

A. The ground. When I fell, my elbow hit and my hands went

and hit the ground, and that’s basically how I could tell it was

black ice, because the fact that I could feel it on my hand.

He explained that he thought he was taking the safest route through the parking lot:

Q. On Exhibit 2 you circled some areas of ice. And those are

areas of ice that you saw before you fell, correct?

A. Yes, uh-huh.

Q. And how did you know to avoid those areas? How did you

know that was ice before you fell?

A. Well, you do see some rough edges and things like that.

That’s where when I picked a spot, I picked a spot that looked

to be the safest. So I felt that I could make it through that area.

* * *

Q. Were you walking through that area at the time of the fall?

A. Yes. I figured since it was water flowing it wouldn’t be any

ice there, because the water was flowing, which would make

sense. And that’s why I felt if I go through that water, I would

have less chance of slipping.

The trial judge concluded that this case did not differ materially from prior ice and

snow slip and fall cases that this Court and the intermediate appellate court have considered,

and the trial judge found that Appellant had “assumed the risk of falling on ice as a matter

of law.” The ruling stated in pertinent part:

In this case, shorn of extraneous material, this case arises

out of a slip and fall on ice. The plaintiff in this case arrived for

work at 11:00 a.m. on December 21, 2005. While driving to

The record does not support this particular factual finding, as discussed infra.

work, the plaintiff observed ice everywhere on the employer’s

parking lot. Plaintiff testified that there had been freezing

temperatures in the morning of December 21, 2005. He also

testified that he had observed water and ice on the parking lot

the evening before in the exact same area where he fell. In

addition, the plaintiff testified that he remembers that the area in

question had been slippery the evening before his fall. Plaintiff

even advised one of his colleagues that prior evening that the

colleague should be careful, i.e[.], very careful, because it was

slippery in the parking lot.

* * *

[A]t the time of the events in question, the plaintiff exited his

vehicle, was walking toward his place of employment, and he

was aware of ice and water on the ground. Plaintiff says that he

attempted to avoid the ice that he saw by walking through an

area of the parking lot [where] there was a lot of water flowing

through it. And while attempting to walk through this particular

portion of the parking lot, the plaintiff slipped and fell.

The plaintiff testified at page 34 of his deposition that he

was aware of ice in the parking lot, that he was aware that ice

was slippery . . . .

* * *

Plaintiff also testified in response to questions on page

141 [of his deposition] that he was aware of black ice and he

could feel it under the slushy water.

[5]

Lots of other testimony and documents in evidence, but

I think I have cogently summarized the core facts. The Court of

Appeals and the Court of Special Appeals have made it

abundantly clear that when someone is aware of icy conditions

in an area and nevertheless elect[s] to proceed through those

areas they assume the risk as a matter of law. While I agree that

the various factual permutations of cases are somewhat

different, they’re not materially different. Allen v. Marriott, 183

Md. App. 460, is in my judgment on point. As was further

explicated by the Court of Special Appeals recently in the

Muscatello case, 189 Md. App. 620. Both Judge Hollander in

Muscatello and Judge Moylan in Marriott extensively survey,

review, discuss, dissect all of the appellate cases. There’s no

need for me to do it here. I conclude that the plaintiff assumed

the risk of falling on ice as a matter of law.

Consequently, all of the motions for summary judgment

based on assumption of the risk will be granted.

Appellant appealed this ruling to the Court of Special Appeals, contesting the grant

of summary judgment in favor of Coakley, Forsgate, and Transwestern, as well as the earlier

motion to dismiss in favor of Brickman. Coakley filed a cross-appeal on the grounds that the

trial judge erred in granting Judd’s motion for summary judgment on Coakley’s third-party

complaint.

Prior to proceedings in the intermediate appellate court, we issued a writ of certiorari,

on our own initiative. Poole v. Coakley & Williams Constr., 417 Md. 501, 10 A.3d 1180

(2011). We now address the following questions, restated for brevity and clarity:

1) Whether the trial judge erred in granting summary judgment

in favor of Coakley and Forsgate based upon the allegation that

Appellant assumed the risk of his injury;

2) Whether the decisions of Allen v. Marriott Worldwide Corp.,

183 Md. App. 460, 961 A.2d 1141 (2008), cert. denied, Allen v.

Marriott, 408 Md. 149, 968 A.2d 1065 (2009), and Thomas v.

Panco Mgmt. of Md., LLC, 195 Md. App. 245, 6 A.3d 304

(2010), cert. granted, Thomas v. Panco Mgmt., 418 Md. 190, 13

A.3d 798 (2011), as applied to Appellant’s case, are erroneous;

and

3) Whether the trial judge erred granting Transwestern and

Brickman’s motions, for summary judgment and to dismiss,

We granted certiorari separately in Thomas v. Panco Mgmt., 418 Md. 190, 13 A.3d

798 (2011) to review the intermediate appellate court’s decision in Thomas v. Panco Mgmt.

of Md., LLC, 195 Md. App. 245, 6 A.3d 304 (2010), which also relied upon Allen in order

to grant the Respondent’s motion for judgment at the conclusion of the Petitioner’s case.

respectively, based upon Appellant’s non-compliance with the

statute of limitations;

We also address Coakley’s cross-appeal, which asks “whether the summary judgment

entered in favor of Judd should be reversed, if the summary judgment entered in favor of

Coakley is reversed.”

We shall reverse the grant of summary judgment entered in favor of Coakley and

Forsgate because, on the basis of the record before the trial court, Appellant did not assume

the risk of his injury as a matter of law. We affirm the grant of summary judgment in favor

of Transwestern, and the dismissal in favor of Brickman, because the claims against both

were barred by Appellant’s failure to comply with the three year statute of limitations for

bringing civil claims. Additionally, we disavow today the reasoning related to assumption

of the risk in Allen.

On Coakley’s cross-appeal, we reverse the trial judge’s grant of

summary judgment in favor of Judd because sufficient evidence was presented regarding its

contingent liability to Coakley in the instance that Coakely is found liable to Appellant.

When reviewing an entry of summary judgment, we have stated:

The standard of review is de novo. See Jurgensen v. New

Phoenix, 380 Md. 106, 843 A.2d 865 (2004). The standard of

review of a grant of summary judgment is whether the trial court

was legally correct. See Pelican Nat’l Bank v. Provident Bank

Current Maryland Rule 2-501(f) related to “Entry of Judgment” is derived in part

from former Rule 610(d)(1).

of Md., 381 Md. 327, 849 A.2d 475 (2004). Whether summary

judgment was granted properly is a question of law. Id. We

reiterate that in reviewing a grant of summary judgment under

Maryland Rule 2-501[f], we independently review the record to

determine whether there exists any genuine issue of material fact

and whether the moving party is entitled to judgment as a matter

of law. Jurgensen, 380 Md. at 114, 843 A.2d at 869. We

review the record in the light most favorable to the non-moving

party and construe any reasonable inferences which may be

drawn from the facts against the movant. Id.

Walk v. Hartford Cas. Ins. Co., 382 Md. 1, 14, 852 A.2d 98, 105-06 (2004). Summary

judgment is not proper where there is a genuine dispute of material fact, which includes

disputes over reasonable factual inferences. See Fenwick Motor Co. v. Fenwick, 258 Md.

134, 136, 265 A.2d 256, 257 (1970) (considering the “the propriety of granting summary

judgment . . . where the facts enumerated in the supporting affidavits [were] conceded for the

purposes of the motion but where the inferences that [could] be reasonably drawn from them

[were] hotly contested,” and holding that “the genuine dispute of fact contemplated by

Maryland Rule 610 d

[7]

includes disputes both over facts and factual inferences . . . .”); Barb

v. Wallace, 45 Md. App. 271, 278, 412 A.2d 1314, 1318 (1980) (stating “[t]he facts here are

susceptible of more than one permissible inference and the choice between these inferences

should be made by the trier of fact and should not be resolved on a motion for summary

judgment.”).

An assumption of the risk defense, properly asserted, may be grounds for entering

summary judgment for a defendant, or otherwise finding that the defense has been

established as a matter of law, but this is only true when “the undisputed facts permit but one

reasonable determination,” namely, that the plaintiff has assumed the risk as a matter of law.

Hooper v. Mougin, 263 Md. 630, 635, 284 A.2d 236, 239 (1971); accord Chalmers v. Willis,

247 Md. 379, 385, 231 A.2d 70, 73 (1967). Thus, “[i]n the usual case, [the plaintiff’s]

knowledge and appreciation of the danger will be a question for the jury; but where it is clear

that any person of normal intelligence in [the plaintiff’s] position must have understood the

danger, the issue must be decided by the court.” Gibson v. Beaver, 245 Md. 418, 421, 226

A.2d 273, 275 (1967) (quoting William L. Prosser, Handbook of the Law of Torts § 55 at 310

(2d ed. 1955)); see Restatement (Second) of Torts § 496D cmt. e (1965) (“Whether the

plaintiff knows of the existence of the risk, or whether he understands and appreciates its

magnitude and its unreasonable character, is a question of fact, usually to be determined by

the jury under proper instructions from the court. The court may itself determine the issue

only where reasonable [persons] could not differ as to the conclusion.”).

In the instant case, we take issue, on two grounds, with the trial court’s determination

that Appellant assumed the risk of his injury as a matter of law: (1) its invasion of the

province of the jury where there was a disputed question of material fact concerning

Appellant’s knowledge of the risk of danger posed by the black ice; and (2) its reliance on

Allen, an outlier case that altered the prior meaning and effect of the knowledge prong of the

assumption of the risk test. We shall explain each ground, infra.

II.

Assumption of the risk “rests upon an intentional and voluntary exposure to a known

danger and, therefore, consent on the part of the plaintiff to relieve the defendant of an

obligation of conduct toward him and to take his chances from harm from a particular risk.”

Crews v. Hollenbach, 358 Md. 627, 640-41,751 A.2d 481, 488 (2000) (quoting Rogers v.

Frush, 257 Md. 233, 243, 262 A.2d 549, 554 (1970); accord Bull S.S. Lines v. Fisher, 196

Md. 519, 524, 77 A.2d 142, 145 (1950) (holding that the requisite conduct must show

consent to accept the risk because “the legal position is then that the defendant is under no

duty to protect the plaintiff”) (quotations omitted); see generally Stuart Speiser, Charles

Krause & Alfred Gans, The American Law of Torts § 12:49 (2008) (hereinafter American

Law of Torts); W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 68, at 490

(5th ed. 1984) (hereinafter Prosser and Keeton). If established by the evidence, assumption

of the risk functions as a complete bar to recovery because “it is a previous abandonment of

the right to complain if an accident occurs.” Warner v. Markoe, 171 Md. 351, 360, 189 A.

260, 264 (1937).

“In Maryland, it is well settled that in order to establish the defense of assumption of

risk, the defendant must show that the plaintiff: (1) had knowledge of the risk of the danger;

(2) appreciated that risk; and (3) voluntarily confronted the risk of danger.” ADM P’ship v.

Martin, 348 Md. 84, 90-91, 702 A.2d 730, 734 (1997). Here, the parties contest whether the

court properly determined that Appellant had knowledge of the risk of slipping and falling

Appellant’s contention is that “[i]n the light most favorable to George Poole, the

evidence on the record does not clearly establish that the risk of danger was fully known and

understood by [Appellant] . . . . [t]herefore, the issue [was] a matter for the jury and a ruling

for summary judgment was improper . . . .” Conversely, Appellees, relying primarily on

reasoning by the intermediate appellate court in Allen, argue generally that Appellant’s

testimony was sufficient to show that he knew and appreciated the risk of falling on black

ice, so that summary judgment was proper.

This Court observed in Schroyer v. McNeal, 323 Md. 275, 284, 592 A.2d 1119, 1123

(1991), that the doctrine of assumption of risk, while well settled, is nonetheless difficult to apply.

on black ice as a matter of law.

In Gibson v. Beaver, this Court held that “[i]n determining whether a plaintiff had

knowledge and appreciation of the risk, an objective standard must be applied and a plaintiff

will not be heard to say that he did not comprehend a risk which must have been obvious to

him.” Gibson, 245 Md. at 421, 226 A.2d at 275. Use of the phrase “objective test” in

Maryland case law has created confusion because it suggests further overlap with the

doctrine of contributory negligence, when the concepts are, in fact, distinct.

As this Court

stated in Warner:

Contributory negligence, of course, means negligence which

contributes to cause a particular accident which occurs, while

assumption of risk of accident means voluntar[il]y incurring that

of an accident which may not occur, and which the person

assuming the risk may be careful to avoid after starting.

Contributory negligence defeats recovery because it is a

proximate cause of the accident which happens, but assumption

of the risk defeats recovery because it is a previous

abandonment of the right to complain if an accident occurs.

171 Md. at 359-60, 189 A. at 264; Bull S.S. Lines, 196 Md. at 525, 77 A.2d at 146. Either

defense may exist without the other, but, of course, “[t]he same conduct on the part of the

plaintiff may . . . amount to both assumption of risk and contributory negligence, and may

subject [the plaintiff] to both defenses.” Schroyer, 323 Md. at 280-81, 592 A.2d at 1122,

(quoting Restatement (Second) of Torts § 496A cmt. d). For example, a plaintiff’s “conduct

in accepting the risk may be unreasonable and thus negligent, because the danger is out of

all proportion to the interest he is seeking to advance, as where he consents to ride with a

drunken driver . . . or dashes into a burning building to save his hat.” Id. Thus, the

traditional basis for distinguishing the two doctrines is that “assumption of risk is a matter

of knowledge of the danger and voluntary acquiescence in it, while contributory negligence

is a matter of some fault or departure from the standard of conduct of the reasonable person,

however unaware, unwilling, or even protesting the plaintiff may be.” Prosser and Keeton

§ 68, at 482. There is, however, another distinction between the doctrines which has not

heretofore been fully explained in Maryland, namely that the standard for imputing

knowledge to a plaintiff under assumption of the risk is:

[I]n theory at least, a subjective one, geared to the particular

plaintiff and his situation, rather than that of the reasonable

person of ordinary prudence who appears in contributory

negligence. If, because of age or lack of information or

experience, he does not comprehend the risk involved in a

known situation, he will not be taken to consent to assume it.

Prosser and Keeton § 68 at 487; accord American Law of Torts § 12:53, at 431-33 (stating

that “[t]he standard to be applied is a subjective one – what the particular plaintiff, in fact,

sees, knows, understands, and appreciates – as distinguished from the objective standard

which is applied to contributory negligence”) (emphasis in original).

Considering these introductory sentences provides context for the companion idea

explained by Prosser and relied upon by this Court in Gibson and later cases relying upon

Gibson. Prosser explains:

At the same time, it is evident that a purely subjective standard

opens a very wide door for the plaintiff who is willing to testify

that he did not know or understand the risk; and there have been

a good many cases in which the courts have said, in effect that

he is not to be believed, so that in effect something of an

objective element enters the case, and the standard applied in

fact does not always differ greatly from that of the reasonable

person. Thus, the plaintiff will not be heard to say that he did

not comprehend a risk which must have been quite clear and

obvious to him. There are some things . . . which are so far a

matter of common knowledge in the community, that in the

absence of some satisfactory explanation a denial of such

knowledge simply is not to be believed.

Prosser and Keeton § 68, at 487-88 (emphasis added); C&M Builders, LLC v. Strub, 420 Md.

268, 294, 22 A.3d 867, 882 (2011) (“This Court has recognized implicitly in prior decisions

the subjective undertones to the objective standard of knowledge . . . .”). The Restatement

(Second) of Torts reiterates Prosser’s explanation of “knowledge and appreciation of risk,”

and was quoted approvingly by this Court in Imbraguglio v. Great Atl. & Pac. Tea Co., 358

Md. 194, 217, 747 A.2d 662, 674-75 (2000) (quoting section 496D cmt. b).

We quote comments c and d of Section 496D of the Restatement (Second) as an

aid to clarify the current state of the law:

c. The standard to be applied is a subjective one, of what the

particular plaintiff in fact sees, knows, understands and

appreciates. In this it differs from the objective standard which

Indeed, the four other jurisdictions, in addition to Maryland, which presently

recognize contributory negligence, along with assumption of the risk, recognize that a

“subjective” knowledge standard is applied to assumption of the risk, and an “objective” or

“reasonable person” standard is applied to contributory negligence. See Ammons v. Tesker

Mfg. Corp., 853 So. 2d. 210, 217 (Ala. 2002) (“The defenses of contributory negligence and

assumption of the risk differ in only one material respect – namely, the plaintiff's awareness

of the danger. With regard to assumption of the risk, the plaintiff's state of mind is

determined by a subjective standard. Contributory negligence, by contrast, involves an

objective standard.”) (internal quotations and citations omitted) (emphasis in original);

Juvenalis v. District of Columbia, 955 A.2d 187, 193 (D.C. 2008) (“While assumption of risk

focuses on the plaintiff's subjective knowledge of the existence of the risk and his voluntary

assumption of it contributory negligence focuses on the objective reasonableness of the

plaintiff's conduct.”) (internal quotations omitted); Hoar v. Great E. Resort Mgmt., Inc., 506

S.E. 2d 777, 787 (Va. 1998) (“The standard to be applied in an assumption of the risk case

is a subjective one, of what the particular plaintiff in fact sees, knows, understands and

(continued...)

is applied to contributory negligence. . . . If by reason of age, or

lack of information, experience, intelligence, or judgment, the

plaintiff does not understand the risk involved in a known

situation, he will not be taken to assume the risk, although it

may still be found that his conduct is contributory negligence

because it does not conform to the community standard of the

reasonable man.

d. In cases of assumption of risk, however, the plaintiff's own

testimony as to what he knew, understood, or appreciated, is not

necessarily conclusive. There are some risks as to which no

adult will be believed if he says that he did not know or

understand them. Thus an adult who knowingly comes in

contact with a fire will not be believed if he says that he was

unaware of the risk that he might be burned by it; and the same

is true of such risks as those of drowning in water or falling

from a height, in the absence of any special circumstances which

may conceal or appear to minimize the danger. One who has

spent a substantial time upon particular premises ordinarily

would be found in fact to understand and appreciate the normal,

ordinary risks of those premises, such as the danger from

moving trains in a railroad switching yard.

Restatement (Second) of Torts § 496D cmts. c & d. It is clear from these sources that the

particular plaintiff must have actual knowledge of the risk before she can be found to have

assumed it.

The subjective nature of the inquiry and the requirement of actual knowledge

(...continued)

appreciates. . . . The standard [for contributory negligence] is an objective one, whether

[plaintiff] acted for his own safety as a reasonable person would have acted under similar

circumstances.”) (internal quotations and citations omitted); see also Allred v. Capital Area

Soccer League, Inc., 669 S.E. 2d 777, 782 (N.C. Ct. App. 2008) (noting that the first element

of assumption of the risk is actual or constructive knowledge of the risk, “e.g., that the danger

was either known to the plaintiff or . . . open and obvious. . . .”); Culler v. Hamlett, 559 S.E.

2d 195, 200 (N.C. Ct. App. 2002) (noting that “the existence of contributory negligence does

not depend on the injured party’s subjective appreciation of the danger; rather the standard

of ordinary care is an objective one – the care an ordinarily prudent person would exercise

under the same or similar circumstances to avoid injury.”) (internal quotation omitted).

The intermediate appellate court, for example, aptly summarized the distinction

between contributory negligence and assumption of the risk, when the questions are posed

to the jury, in Baltimore Gas & Elecric Co. v. Flippo, 112 Md. App. 75, 96, 684 A.2d 456,

466 (1996). The court stated:

In order to succeed on a defense of contributory negligence,

[defendant] would have to persuade the jury that [plaintiff] was

aware, or chargeable with being aware, of the danger of contact

with an overhead electric line and that he knew or should have

known of the presence of the wire among the branches of the

tree when he undertook to climb the tree. In order to succeed on

(continued...)

has been suggested by this Court in Schroyer. We stated, “the doctrine of assumption of risk

will not be applied [as a matter of law] unless the undisputed evidence and all permissible

inferences therefrom clearly establish that the risk of danger was fully known to and

understood by the plaintiff.” Schroyer, 323 Md. at 283, 592 A.2d at 1123 (internal

quotations omitted) (emphasis added); C&M Builders, 420 Md. at 295, 22 A.3d at 882

(“[T]the party must have known and appreciated the risk either because it is not credible that

a similarly situated person would not have done so, or because the risk was so obvious that

it could not have been encountered unwittingly.”). The issue of assumption of the risk rests

upon the plaintiff’s subjective knowledge. Because the focus is on what the plaintiff actually

knew, understood and appreciated the issue is ordinarily left to the jury to resolve.

(...continued)

a defense based on its theory of assumption of risk, [defendant]

would bear a somewhat heavier burden of proof: that [plaintiff]

actually knew of the potential danger of overhead electric wires

and actually knew of the presence of this particular wire when

he voluntarily subjected himself to a risk of contact with the

wire by climbing the tree.

Id. (emphasis in original).

Maryland’s jurisprudence, however, has suggested that the trial judge apply an

“objective standard” when determining the appropriateness of applying the defense as a

matter of law. This “objective standard” language, as used in our case law, stands for the

proposition that “there are certain risks which any one of adult age must be taken to

appreciate,” and, in those cases, a simple denial from a plaintiff concerning his or her

knowledge of such a risk will not be sufficient to avoid judgment for the defendant as a

matter of law. Gibson, 245 Md. at 421, 226 A.2d at 275 (quoting Prosser, § 55, at 310);

ADM P’ship, 348 Md. at 91, 702 A.2d at 734; Crews, 358 Md. at 644, 751 A.2d at 490

(“Courts will not be swayed by a plaintiff's subjective denial that he or she did not

comprehend the extent of a clearly obvious danger.”) (emphasis added).

Indeed, we have held consistently that “when it is clear that a person of normal

intelligence in the position of plaintiff must have understood the danger, the issue is for the

court.” Schroyer, 323 Md. at 283-84, 592 A.2d at 1123 (emphasis added); accord Gibson,

245 Md. at 421, 226 A.2d at 275. These types of dangers, the “certain risks which anyone

of adult age must be taken to appreciate” include such things as “the danger of slipping on

ice, of falling through unguarded openings of lifting heavy objects . . . and doubtless many

others.” Prosser and Keeton § 68, at 488; Morgan State Univ. v. Walker, 397 Md. 509, 515,

919 A.2d 21, 25 (2007); Crews, 358 Md. at 646-47, 751 A.2d at 491; ADM P’ship, 348

Md. at 92, 702 A.2d at 734; Schroyer, 323 Md. at 284, 592 A.2d at 1123; McClearn v. Se.

Concrete Co., 253 Md. 135, 139, 251 A.2d 896, 899 (1969).

In each of the cases where this Court has approved the entry of judgment as a matter

of law based on assumption of the risk, the danger has been one that any person in the

plaintiff’s position must have understood, meaning either a foreseeable consequence of

engaging in an activity, or an otherwise patent or obvious danger. When a risk is a

foreseeable consequence of engaging in a particular activity, we have reasoned that there is

an implied consent to relieve others of liability for injury and assumption of the risk may be

established as a matter of law. Cotillo, 401 Md. 658, 670, 934 A.2d 27, 35 (“Such risks, that

are inherent to a particular sport, are all foreseeable consequences of participating in that

sport, and as they are obvious to a person of normal intelligence, voluntary participants in

those sports assume those inherent risks.”). In Cotillo, we held that there was “no genuine

issue of material fact that Mr. Cotillo assumed the usual and foreseeable risks of the sport

when he voluntarily entered a powerlifting competition” and the lift bar fell on top of him.

Cotillo, 401 Md. at 663, 934 A.2d at 30 (emphasis added). In Gibson, this Court charged the

plaintiff “with knowledge of the heaviness of a [large] hose … 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,” adding, “[i]f he did not appreciate this sooner, he must have when he took

hold of the hose.” Gibson, 245 Md. at 422, 226 A.2d at 275-76. In Finkelstein v. Vulcan

Rail & Constr. Co., 224 Md. 439, 442, 168 A. 2d 393, 394-95 (1961), this Court pointed out

that the dangers at a construction site are more apt to be obvious than in other areas and that

it is quite usual to find workmen voluntarily assuming known risks in the performance of

their tasks. Also in C&M Builders, it was clear that the plaintiff assumed the risk of injury

when he voluntarily worked near an unguarded hole because the danger of falling was

obvious. 420 Md. 268, 295-96, 22 A.3d at 883.

Our recent snow and ice cases are instructive, yet distinguishable, from the facts of

Prosser cited Shea v. Kansas City, 76 Mo. App. 29 (1898), as authority for his

observation. In Shea, an employee of an ice block manufacturing company was injured when

he slipped while standing atop a pile of large ice blocks traversing a loading dock track

system. The Court of Appeals of Missouri stated:

It is a matter of common knowledge that ice is slippery, and that

when it is built up in courses of block upon block it may slip.

But[,] as to this[,] plaintiff had the same knowledge that

defendant had. The dangers then of slipping or falling was as

patent to the plaintiff as they were to defendant’s foreman. Such

danger or risk then was one of those ordinarily incident to

plaintiff's employment, and for which he can not, on the plainest

(continued...)

this case. While this Court’s opinions in Morgan State, ADM P’ship, and Schroyer, focused

on the voluntariness of the plaintiffs’ actions, each case also stands for the proposition that

the knowledge undoubtably acquired from encountering visible snow and ice may be imputed

to the plaintiff as a matter of law. Morgan State, 397 Md. at 519, 919 A.2d at 27 (involving

a plaintiff who slipped and fell on visibly icy parking lot while visiting her daughter’s

college); ADM P’ship, 348 Md. at 88-89, 702 A.2d at 733 (involving a plaintiff who slipped

and fell on a visibly icy walkway while making a delivery at a building owned by the

defendants); Schroyer, 323 Md. at 288-89, 592 A.2d at 1125-26 (involving a plaintiff who

slipped and fell while traversing a visibly icy hotel parking lot); see Warsham v. James

Muscatello, Inc., 189 Md. App. 620, 645, 985 A.2d 156, 171 (2009) (noting “our appellate

courts have strictly applied the doctrine of assumption of the risk in suits brought by persons

who were injured when they fell on ice that was plainly visible”).

In the instant case, however, we consider a determination, made as a matter of law,

concerning knowledge of the risk of danger posed by “black ice.” The case from which Dean

Prosser extrapolated the observation that the danger of slipping on ice is a “risk which

anyone of adult age must be taken to appreciate,” dealt explicitly with the more common risk

of danger posed by obvious, avoidable, visible ice.

Prosser and Keeton § 68, at 487. Thus,

(...continued)

principles of law, hold his employer responsible.

Shea, 76 Mo. App. at 33. In light of Shea, we believe that Prosser’s often quoted observation

is inapposite here.

We do not decide that a slip and fall on black ice case could never be resolved as

a matter of law because there could be evidence to show that the particular plaintiff did know

of the risk of encountering the condition, he understood the risk and voluntarily encountered

it.

neither Dean Prosser’s observation, nor our cases employing it, are dispositive in the instant

case. As discussed supra, Appellant testified repeatedly that he saw ice in certain areas of

the parking lot, but that he did not see ice, or suspect that it could be, in the stream of water

that he believed would be a safe path to the building. It may be a “matter of common

knowledge that ice is slippery,” but one’s ability to identify black ice, when by its nature it

is not perceivable or knowable until the moment of experience, means the danger is not

necessarily patent.

Cf. Shea, 76 Mo. App. at 34.

We have consistently held that a plaintiff does not consent to waive claims for liability

beyond “those risks which might reasonably [have been] expected to exist.” Bull S.S. Lines,

196 Md. at 526, 77 A.2d at 146; accord Cotillo, 401 Md. at 472-73, 934 A.2d at 36 (noting

that “[o]f course, a plaintiff only assumes those risks that are inherent in the activity in which

he is engaged”); Johnson v. County Arena, Inc., 29 Md. App. 674, 682, 349 A.2d 643, 647

(1976) (“We think it clear that the only risks assumed are those incident to the sport and even

those are limited to those incidental risks that are ‘obvious and foreseeable.’). Even if the

physical layout of the parking lot, including: the location of the visible ice, the stream, the

drain, the cars, etc. were undisputed, the issue of Appellant’s knowledge concerning the very

existence of the dangerous condition, i.e., the black ice beneath the stream of water that

We note additionally that the trial judge implied that Appellant had knowledge of

the existence of “black ice,”as a matter of law, because of his “testimony on page 141 that

he was aware of black ice and he could feel it under the slushy water.” In fact, Appellant

only testified that “[w]hen I fell, my elbow hit and my hands went and hit the ground, and

that’s basically how I could tell it was black ice, because the fact that I could feel it on my

hand … I could feel the ice under the water[,]” in order to describe his awareness of black

ice after his fall. Apparently, the trial judge reasoned that Appellant could not have

identified the substance immediately after his fall without some prior knowledge that black

ice was present. Thus, the trial judge reasoned, because Appellant was able to name it, he

must have known it was there. This is not the test for the knowledge prong of the assumption

of the risk defense. The disputed question was what Appellant knew or must have known

at the time of the encounter with the dangerous condition, not what he surmised or

hypothesized immediately after his fall.

Moreover, even if we were to assume that the trial judge only inferred from Petitioner’s

testimony that he was aware of the phenomenon of black ice, the ultimate question of the

Petitioner’s knowledge of the presence of black ice under the stream of water was for the jury to

decide.

A jury’s evaluation of the evidence of knowledge will not be so limited. In

determining the extent of the plaintiff’s knowledge, the jury will consider the weight and

credibility of the evidence using the preponderance of the evidence standard. See Darcars

(continued...)

covered the path he trod, was subject to more than one reasonable inference.

“Where there

is a dispute whether the risk is assumed or not, that question is usually left to the jury.” Bull

S.S. Lines, 196 Md. at 526, 77 A.2d at 146; see Hooper, 263 Md. at 638, 284 A.2d at 241;

Prosser and Keeton § 68, at 487 (noting that there is rarely “conclusive evidence against the

plaintiff on the[ ] issues” of knowledge, appreciation and voluntariness). In the present case,

the record suggests that the presence of black ice was more akin to an “unusual danger,” so

that consideration by the trier of fact was necessary to determine if it was “assumed or not.”

Bull S.S. Lines, 196 Md. at 526, 77 A.2d at 146.

As pointed out supra, the focus in an assumption of the risk case is on the plaintiff’s

subjective knowledge, as “the doctrine of assumption of risk will not be applied [as a matter

of law]unless the undisputed evidence and all permissible inferences therefrom clearly

establish that the risk of danger was fully known to and understood by the plaintiff.”

(...continued)

Motors of Silver Spring, Inc. v. Borzym, 379 Md. 249, 270, 841 A.2d 828, 840-841 (2004)

(“A judge must grant a civil defendant's motion for judgment as a matter of law if the

plaintiff failed to present evidence that could persuade the jury of the elements of the tort by

a preponderance of the evidence.”) (emphasis in original).

Schroyer, 323 Md. at 283 592 A.2d at 1123 (internal quotations omitted) (emphasis added);

accord Chalmers, 247 Md. at 391, 231 A.2d at 76 (“We have held that the doctrine of

assumption of risk should be applied, as a matter of law, in cases . . . where the undisputed

evidence and all permissible inferences deducible therefrom clearly establish that the risk of

the danger . . . was fully known to and understood by the plaintiff whose consent thereto may

be implied.”) (Hammond, C.J. dissenting). Our prior case law suggesting an “objective” test

remains binding, however, because “when it is clear that a person of normal intelligence in

the position of the plaintiff must have understood the danger, the issue is for the court.”

Schroyer, 323 Md. at 283, 592 A.2d at 1123 (emphasis added). Therefore, for a plaintiff to

have knowledge of the risk, as a matter of law, there must be undisputed evidence that he

or she had actual knowledge of the risk prior to its encounter. Actual knowledge can be

proven, for example, by evidence of the particular plaintiff’s subjective knowledge of a risk,

e.g. previous experience with or 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.” C&M Builders, 420 Md. at 294, 22 A.3d at 882.

On the basis of this record, the trial judge should not have drawn the conclusion that

Appellant, as a matter of law, actually knew of the risk of slipping on “black” ice, because

it is unclear whether he had subjective knowledge of the risk, nor is the risk one that “a

person of normal intelligence” in the position of Appellant “must have understood.”

Schroyer, 323 Md. at 283-84, 592 A.2d at 1123. Therefore, summary judgment was

improper, and we reverse the judgment of the trial court.

III.

In addition to our holding that it was legal error to enter summary judgment in favor

of the defendants, we also agree with Appellant that Allen altered the standard for

establishing knowledge of the risk as a matter of law. See Allen, 183 Md. App. 460, 961

A.2d 1141. Appellant challenges the validity of the intermediate appellate court’s decision

in Allen, as applied to his case, on the grounds that “it created a constructive knowledge test

with an objective standard borrowed from contributory negligence.” Although we have

endeavored to clarify the applicable knowledge standard, supra, additionally, we conclude

that the application of the rationale developed in Allen, improperly invades the province of

the jury. Accordingly, we hold that to the extent Allen suggested that the compilation of facts

and inferences, amounting to less than actual knowledge, may be

to impute

knowledge to a plaintiff as a matter of law, that case is overruled.

In Allen, the Court of Special Appeals affirmed the trial judge’s grant of summary

judgment in favor of the defendant, Marriott Corporation, on the ground that one of its

guests, Mr. David Allen, had assumed the risk of slipping and falling on black ice while

walking across the parking lot from the entrance of the hotel to his wife’s car. Allen, 183

Md. App. at 462, 478-80, 961 A.2d at 1142, 1151-52.

Notwithstanding the fact that black ice is, by its nature, invisible or difficult to see,

the Allen Court stated “the path to knowledge is not limited to the sense of sight alone. . . .

[k]nowledge springs not only from direct sense perception but from the drawing of inferences

from circumstantial evidence. Induction is as worthy a highway to knowledge as is

sensation.” Allen, 183 Md. App. at 473, 961 A.2d at 1149. The court concluded that because

the plaintiff had testified that he observed visible ice and snow in the vicinity prior to his slip

and fall and “acknowledged his general familiarity with the phenomenon of black ice” that

“when the bits and pieces of information about the appellant’s awareness of risk came

together, they were enough, objectively, to achieve critical mass” and so “[t]he question was

properly one of law for the court to decide on summary judgment.” Allen, 183 Md. App. at

476, 478-79, 961 A.2d at 1150-51. The Allen Court bolstered its holding with the following

reasoning, in which we also find error:

To assume a risk as a matter of law, a plaintiff, objectively

speaking, must have reason to know of the risk. In a case such

as this, the risk is that of slipping on ice. The required

knowledge is not knowledge that ice is actually present. It is the

appreciation of the reasonable likelihood that, under the weather

conditions and other circumstances, ice might well be present.

The assumed risk is not that of stepping on ice per se. The

assumed risk is that of stepping onto an unknown surface with

an awareness that it might well be icy. With white ice, you see

it is there. With black ice, you infer the likelihood that it may be

there. Either establishes the element of awareness.

Allen, 183 Md. App. at 479-80, 961 A.2d at 1152. Allen expands the knowledge prong of

the assumption of the risk test to permit the trial judge to impute knowledge under

circumstances where the risk of danger may not have been fully known to and understood

by the plaintiff, thereby enlarging the category of cases in which a court may impute

knowledge to a plaintiff as a matter of law.

As explained supra, "the doctrine of assumption of risk will not be applied [as a

matter of law] unless the undisputed evidence and all permissible inferences therefrom

clearly establish that the risk of danger was fully known to and understood by the plaintiff.”

Schroyer, 323 Md. at 283, 592 A.2d at 1123 (emphasis added). When it is clear, however,

“that a person of normal intelligence in the position of the plaintiff must have understood the

danger, the issue is for the court.” Id. Thus, in order for a plaintiff to have assumed the risk

of his or her injuries as a matter of law, we require that a plaintiff “must” have known that

the risk was “actually present,” not that he or she “would,” “should,” or “could” have known

that the risk “might well be present.” See Kasten Constr. Co. v. Evans, 260 Md. 536, 544-45,

273 A.2d 90, 94 (holding that even though defendant argued that plaintiff, a utility linesman,

“should have known” of the danger involved in climbing a utility pole, the issue was properly

one for the jury because there were no signs of structural instability, and his knowledge of

the danger was not clear and undisputed); cf. McClearn, 253 Md. at 139, 251 A.2d at 899

(stating that plaintiff was experienced in the cement finishing business, and therefore

“certainly must have been aware” of the danger of directing the driver in the process of

backing up a cement truck) (emphasis added); see also Martin v. Heddinger, 373 N.W.2d

486, 490 (Iowa 1985) (“[A]ssumption of risk is a matter of whether the plaintiff knew of the

risk, not whether the plaintiff should have known of it.).

The Allen court’s formulation diminishes the requirement that a plaintiff actually and

fully know and understand the risk he or she is confronting and proposes that a plaintiff may

be judicially charged with knowledge in a circumstance where he or she should infer the

existence of a dangerous condition.

Maryland jurisprudence, however, directs that courts may only impute knowledge to

the plaintiff, as a matter of law, when there is undisputed evidence of awareness, e.g.,

physical interaction with or sensory perception of the dangerous condition in the case of

Schroyer, ADM P’ship, or Morgan State; the risk of danger is so obvious that any person of

normal intelligence will be taken to comprehend it, as in Gibson or C&M; or the risk is an

usual and foreseeable consequence of the plaintiff’s conduct, as in Cotillo.

Beyond these circumstances, we have held that “[w]here there is a dispute whether

the risk is assumed or not, that question is usually left to the jury[,]” Bull S.S. Lines, 196 Md.

at 526, 77 A.2d at 146, because the role of the fact finder is to assess the credibility of the

evidence and draw a conclusion from among the inferences which may be reasonably drawn

from that evidence. See American Law of Torts, § 12:53, at 433 (“Only where reasonable

men could not differ as to the conclusion to be reached, the court itself may determine the

issue.”)

In Allen, the plaintiff testified that he had crossed the parking lot without incident after

the snowfall but prior to his slip and fall. Also, while he observed visible ice and snow piled

against the curb of the parking lot, he had not seen any in the area of the lot on which he

stepped, and did not see the ice upon which he fell. The intermediate appellate court aptly

defined “black ice,” and described the “meaningful contrast” between “white ice” and “black

ice,” as “between essentially visible ice and essentially invisible ice.” 183 Md. App. at 469-

470, 961 A.2d at 1146-47. Whereas the Allen Court did not find the invisibility of the black

ice to be a significant factor in withholding judicial imputation of knowledge to the plaintiff,

this Court does. 183 Md. App. at 472-73, 961 A.2d at 1148-49. While, indeed, “the path to

knowledge is not limited to the sense of sight alone,” it is not for the courts, as a matter of

law, to determine that although a danger was, by its nature, imperceptible by direct sensation,

“inferences from circumstantial evidence” were drawn by a particular plaintiff. Allen, 183

Md. App. at 473, 961 A.2d at 1149. The Allen Court’s statement that the requisite

knowledge at the time of injury is not knowledge that ice is actually present, but, rather, “the

appreciation of the reasonable likelihood that, under the . . . circumstances ice might well be

present” negates the legal truism that assumption of the risk “rests upon an intentional and

voluntary exposure to a known danger and, therefore, consent on the part of the plaintiff to

relieve the defendant of an obligation of conduct toward him and to take his chances from

harm from a particular risk.” Crews, 358 Md. at 640-41,751 A.2d at 488 (internal quotations

omitted) (emphasis added). Thus, it was error to find, as a matter of law, that the plaintiff

in Allen had knowledge of the risk of slipping on black ice when the evidence showed only

an “awareness that it might” exist and an inference could have been drawn that it “may be

there.” Allen, 183 Md. App. at 479-80, 961 A.2d at 1152. Rather, for a court to impute

knowledge as a matter of law, the evidence and all permissible inferences must make clear

that the plaintiff had full, actual, and subjective knowledge of the risk or that “a person of

normal intelligence in the position of the plaintiff must have understood the danger.” See

Schroyer, 323 Md. at 283-84, 592 A.2d at 1123 (emphasis added). In the absence of this

level of proof, any determinations as to “bits and pieces of information” required to achieve

a “critical mass” sufficient to impute knowledge to a plaintiff, is a puzzle properly put

together by the jury.

In the present case, the trial court, in granting summary judgment, drew inferences

in favor of the Appellees in reliance upon Allen and determined that the Appellant assumed

the risk of his injuries. It was not proper to impute knowledge to Appellant as a matter of

law because, under these circumstances, there was insufficient evidence of Appellant’s actual

subjective knowledge of the risk, nor was it “clear that a person of normal intelligence in

[Appellant’s position] must have understood the danger” of black ice beneath the stream of

water. See Schroyer, 323 Md. at 283-84, 592 A.2d at 1123. Therefore, the issue of whether

Appellant knew about the risk of the danger of slipping on black ice should have been

resolved by the trier of fact.

IV.

Maryland Rule 2-332 states:

(a) Defendant’s claim against third party. A defendant, as a

third-party plaintiff, may cause a summons and complaint,

(continued...)

We now address Coakley’s cross-appeal, in which Coakley seeks reversal of the trial

judge’s entry of summary judgment in Judd’s favor, so that Coakley can preserve its

indemnity and contribution claims against Judd. Coakley impleaded Judd by filing a third-

party complaint alleging that if any water did drain into the parking lot, causing the black ice

to form, then it was Judd who caused the condition while it was performing work on the fire

sprinkler systems of the building unit at the Gateway Center that Coakley was constructing.

Judd moved for summary judgment, asserting that there were no material facts in dispute

regarding its liability for Appellant’s injury because Judd was not on the job site until

December 21, 2005, the date of the injury, and because Appellant testified that the water

stream under which the black ice formed had been flowing a week prior to that date.

Coakley’s opposition to Judd’s motion alleged generally that if the trial judge determined that

summary judgment was not available to Coakley on Appellant’s claim, it could not be

available to Judd on the claims in the third-party complaint. Coakley attached its contract

with Judd as an exhibit to its motion. The trial judge granted Judd’s motion for summary

judgment on the claims in the third-party complaint. We now reverse that judgment.

“Third party complaints are dealt with in Rule 2-332 and are for the purpose of suing

a person who is not already a party to the action and who is or may be liable to the defendant

for all or part of a plaintiff’s claim against the defendant.”

Goldstein & Baron Chartered

(...continued)

together with a copy of all pleadings, scheduling notices, court

orders, and other papers previously filed in the action, to be

served upon a person not previously a party to the action who is

or may be liable to the defendant for all or part of a plaintiff’s

claim against the defendant. A person so served becomes a

third-party defendant.

v. Chesley, 375 Md. 244, 255 n.1, 825 A.2d 985, 991 n.1 (2003) (internal quotation omitted).

Consequently,

when an impleaded party files a motion for summary judgment

on the third-party claim, the issue is not whether the defendant

is liable to the plaintiff. Rather, the issue is whether there is a

genuine dispute of fact on the issue of whether the third-party

defendant may be liable to the defendant if the defendant is

found liable to the plaintiff. The defendant is not required to

present evidence of his own liability; he is only required to

present sufficient evidence of the third-party defendant’s

contingent liability.

Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs. Ltd. P’ship, 109 Md. App. 217,

283, 674 A.2d 106, 138-39 (1996) (emphasis added) (holding that summary judgment was

improper because the defendants showed that the “defective work” was within the “scope”

of responsibility of the impleaded third-party defendants pursuant to their contract) (aff’d,

346 Md. 122, 695 A.2d 153 (1997)). Accordingly, to reverse the summary judgment ruling

entered in Judd’s favor, we must find that there was “sufficient evidence” of the “contingent

liability” of Judd to Coakley in the event that Coakley is found liable to Appellant. See

Hartford, 109 Md. App. at 283, 674 A.2d at 138.

The contract presented to the trial judge constituted sufficient evidence of Judd’s

Article 4(b) of the “Subcontract Agreement” executed between Judd and Coakley

states, in pertinent part:

Subcontractor’s Liability

If any person (including employees of

Subcontractor) suffers injury … as a result, in whole or in part,

of negligence … of Subcontractor, its employees, agents or

lower-tier Subcontractors, then the Subcontractor shall assume

the liability therefor, and shall (at Contractor’s option) defend

any action, pay all costs including attorney’s fees and satisfy any

judgments entered against Contractor, and further agrees to hold

Contractor and its agents, servants, employees and sureties

harmless therefor.

Article 5 states:

Subcontractor’s Insurance

To the fullest extent permitted by

law, the Subcontractor specifically obligates itself to the

Contractor and owner, jointly and severally, in the following

respects: … (b) To protect, defend and indemnify the Contractor

… against and save them harmless from any and all claims,

losses, damages, costs, expenses (including but not limited to

attorney fees), suits, or liability for … injuries to persons ….

contingent liability to Coakley for “all or any part of plaintiff’s claim against [it].” See Allen

& Whalen, Inc. v. John Grimberg Co., 229 Md. 585, 586-87, 590, 185 A.2d 337, 338, 340

(1962) (noting that the “most important question raised by [the third-party defendant’s]

demurrer is whether or not the liability which [the third party plaintiff] seeks to assert against

it is for any part of the original plaintiff’s … claim against the original defendant”). Articles

4 and 5 of the contract between Judd and Coakley provide that Judd will “assume liability”

for “injury” as a result of its negligence and that Judd will indemnify Coakley against claims

for “injuries to persons.”

Accordingly, Coakley has met its burden by proving that Judd

may be liable for Appellant’s injury because the contract between Coakley and Judd covers

In ruling on Transwestern’s motion for summary judgment, the trial judge invoked

the relation back doctrine stating: “I hold that such like naming – when you first name a

party, a new party to a suit that’s not a misnomer, a misjoinder, a miswhatever, such does not

relate back when an entirely new party is named.” Appellant, however, expressly argued in

the trial court and before this Court that the relation back doctrine does not apply to this case.

Rather, Appellant urges us to apply the discovery rule to his case and not the relation back

(continued...)

liability and because we have determined, upon our review, that Appellant’s claim against

Coakley could not be resolved on summary judgment. See e.g., Hartford, 109 Md. App. at

284, 674 A.2d at 139 (holding that “[b]ecause the court found that there was a triable issue

on the [plaintiff]’s claim that holes and tears in the flashing allowed water leaks that caused

the corrosion of structural steel, there was also a triable issue as to whether [third-party

defendant] was liable to the Defendants for defects in its masonry work”); but cf. Allen &

Whalen, 229 Md. at 590, 185 A.2d at 340 (affirming an order sustaining a third-party

defendant’s demurrer to a third-party plaintiff’s complaint because “[w]hatever liability

[third-party defendant] may be under to [third-party plaintiff], it simply is not a liability for

any part of the claim of the original plaintiff . . . against the original defendant . . .”).

Accordingly, we reverse the entry of summary judgment in favor of Judd.

We now address Appellant’s contention that his cause of action against Brickman and

Transwestern was not barred by the statute of limitations. Arguing that Appellant’s action

was time-barred, Appellee Brickman obtained a favorable ruling on its motion to dismiss at

a pre-trial hearing on January 6, 2010, and Appellee Transwestern, adopting Brickman’s

argument, obtained summary judgment on its motion on March 3, 2010.

Both parties

(...continued)

doctrine. We take this opportunity to explain the application of the relation back doctrine.

Appellant’s Amended Complaint named Transwestern and Brickman as “new parties” so it

did not “relate back” to the time of the filing of his original complaint; therefore, the

limitations period was not “tolled” under the doctrine. See Pines Point Marina v. Rehak, 406

Md. 613, 640-41, 961 A.2d 574, 590 (2008) (holding that “the filing within the period of

limitations of an assertion of a claim which is deficient or wrong in form or otherwise

technically defective will toll the statute of limitations to the extent that the filing of a correct

assertion of claim after the expiration of the statute will relate back to and validate the

original assertion of claim, as long as the corrected statement does not introduce a new cause

of action or a new theory of liability or new parties”) (internal quotation omitted); accord

Crowe v. Houseworth, 272 Md. 481, 486, 325 A.2d 592, 595-96 (1974) (noting that in

Maryland the doctrine of “relation back” may not be used to add a new defendant after the

limitations period for the cause of action has run); see also Ferguson v. Loder, 186 Md. App.

707, 720, 975 A.2d 284, 291 (2009) (“Indeed, an amendment that corrects the name of a

party relates back to the original filing date. [S]ee Rule 2-341(c) (‘An amendment [to a

complaint] may seek to . . . correct misnomer of a party[.]’). The addition of a new party,

however, does not relate back.”) (internal citations omitted) (emphasis added).

argued, and the trial judge ruled, that the “discovery rule,” which tolls the running of the

limitations period until the plaintiff “discovers, or through the exercise of due diligence,

should have discovered, the injury,” was inapplicable such that Appellant’s action was time-

barred by the expiration of the statute of limitations. Appellant contests these rulings on two

grounds. First, Appellant argues that he did not have “actual or constructive knowledge” that

either Transwestern or Brickman was a potential tortfeasor prior to the expiration of the

limitations period and, therefore, the “discovery rule” should apply. As a secondary,

alternative argument, Appellant contends that the trial judge “improperly made a factual

finding that Appellant did not act with reasonable diligence to discover the names of the

additional Appellees, when clearly this is a question that should have been submitted to the

jury.” Neither argument is persuasive, and the trial judge’s rulings on Appellees’ motions

are affirmed.

Motions to dismiss, like motions for summary judgment, are reviewed for legal

correctness. See Doe v. Roe, 419 Md. 687, 693, 20 A.3d 787, 791 (2011) (“In reviewing the

Circuit Court’s grant of a motion to dismiss, our task is confined to determining whether the

trial court was legally correct in its decision to dismiss.”) (quoting Menefee v. State, 417 Md.

740, 747, 12 A.3d 153, 157 (2011)) (internal citations and quotations omitted). This Court

has noted that “[a] grant of summary judgment is appropriate where the statute of limitations

governing the action at issue has expired.” Frederick Rd. Ltd. P’ship v. Brown & Sturm, 360

Md. 76, 94, 756 A.2d 963, 972 (2000). We have explained:

The adoption of statutes of limitation reflects a policy

decision regarding what constitutes an adequate period of time

for a person of reasonable diligence to pursue a claim. Such

statutes are designed to balance the competing interests of each

of the potential parties as well as the societal interests involved.

Thus, one of the purposes of such statutes is to assure fairness

to a potential defendant by providing a certain degree of repose.

This is accomplished by encouraging promptness in prosecuting

actions; suppressing stale or fraudulent claims; avoiding

inconvenience that may stem from delay, such as loss of

evidence, fading of memories, and disappearance of witnesses;

and providing the ability to plan for the future without the

uncertainty inherent in potential liability. Another basic purpose

is to prevent unfairness to potential plaintiffs exercising

reasonable diligence in pursuing a claim. Still another purpose

is to promote judicial economy.

Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 665, 464 A.2d 1020, 1026 (1983).

Pursuant to Md. Code (1974, 2006 Repl. Vol.), § 5-101 of the Courts and Judicial

The provision language in the 2002 Replacement Volume that was in force at the

time of Appellant’s injury is identical.

Proceedings Article (C.J.P.),

“[a] civil action at law shall be filed within three years from

the date it accrues unless another provision of the Code provides a different period of time

within which an action shall be commenced.” (emphasis added). We have held consistently

that “the question of accrual in § 5-101 is left to judicial determination,” unless the

determination rests on the resolution of disputed facts regarding discovery of the wrong.

Frederick Rd., 360 Md. at 95, 756 A.2d at 973 (noting that the judicial “determination may

be based solely on law, solely on fact, or on a combination of law and fact, and is reached

after careful consideration of the purpose of the statute and the facts to which it is applied”).

In Maryland, the general rule is that the running of limitations against a cause of

action begins upon the occurrence of the alleged wrong, unless there is a legislative or

judicial exception which applies. Poffenberger v. Risser, 290 Md. 631, 634, 431 A.2d 677,

679 (1981). The judicial exception relied upon by Appellant is the “discovery rule,” which

“tolls the accrual date of the action until such time as the potential plaintiff either discovers

his or her injury, or should have discovered it through the exercise of due diligence.”

MacBride v. Pishvaian, 402 Md. 572, 581, 937 A.2d 233, 238 (2007); see Frederick Rd., 360

Md. at 95-96, 756 A.2d at 973; accord Anne Arundel Cnty. v. Halle Dev., Inc., 408 Md. 539,

562, 971 A.2d 214, 228 (2009) (noting that “inquiry notice means having knowledge of

circumstances which would cause a reasonable person in the position of the plaintiffs to

undertake an investigation which, if pursued with reasonable diligence, would have led to

Indeed, the trial judge noted that the discovery rule was inapplicable because “the

plaintiff knew obviously the date he was injured and knew the location that he was injured

and filed this claim.”

knowledge of the alleged [cause of action]”) (internal quotation omitted). The discovery rule

protects plaintiffs in a position “where it was not reasonably possible to have obtained notice

of the nature and cause of an injury . . . .” Frederick Rd., 360 Md. at 95, 756 A.2d at 973

(citing Hahn v. Claybrook, 130 Md. 179, 186-87, 100 A. 83, 85-86 (1917).

Appellant argues that the discovery rule tolled the statute of limitations period in his

case because he did not have “actual or constructive knowledge that Transwestern or

Brickman was a potential tortfeasor, and hence a proper party to this litigation until discovery

responses were received.” Appellant misinterprets the “discovery rule,” which was born out

of this Court’s recognition that “plaintiffs may, in appropriate circumstances, ‘be blamelessly

ignorant’ of the fact that a tort has occurred and thus, ought not be charged with slumbering

on rights they were unable to ascertain.” Poffenberger, 290 Md. at 635, 431 A.2d at 680

(internal quotations omitted).

Appellant has asserted repeatedly that his injury occurred on December 21, 2005.

He was fully aware of the nature and cause of his injury, namely falling on ice, as of this

date. Therefore, December 21, 2005, is the accrual date of his cause of action, the date on

which he had actual notice of the “nature and cause of his injury” and the clock began to run.

Appellant had three years from that date, or until December 21, 2008, to file a complaint

against those parties he deemed responsible, or potentially responsible, for his injury.

Indeed, “when the date of the breach [or injury] and the discovery of the breach [or injury]

As the trial judge aptly noted, “[I]f you extend the statue of limitations or allow

filings to occur outside the statue of limitations for these reasons, it really opens a Pandora’s

box, and parties can come in and say, ‘I didn’t know that this company owned this building

on Rockville Pike until after the statute had run.’ How long would it be? The statute of

limitations really wouldn’t mean anything.”

are the same, the discovery rule is satisfied,” and the statute of limitations will not be tolled.

See Bragunier Masonry Contractors, Inc. v. Catholic Univ. of Am., 368 Md. 608, 628, 796

A.2d 744, 755 (2002).

As noted previously, one of the purposes of barring claims instituted beyond the

limitations period “is to assure fairness to . . . potential defendant[s] by providing a certain

degree of repose,” and to provide these persons with “the ability to plan for the future

without the uncertainty inherent in potential liability.” Pierce, 296 Md. at 665, 464 A.2d at

1026. (emphasis added). Thus, Appellant had a duty from the date of his injury to acquire

the identities of all potential defendants before the running of the limitations period, or his

claims would be barred against any party not sued within the period.

Appellant filed suit against the original defendants, Forsgate and Coakley, on

November 13, 2008, but added Appellees Brickman and Transwestern by amended complaint

on October 15, 2009, well beyond the three-year limitations period. Appellant contends that

his claim did not “accrue” against Transwestern and Brickman until September 30, 2009, in

accordance with the “discovery rule,” because he could not have known of the other potential

defendants until his Interrogatories to Appellee Forsgate, served on February 17, 2009, were

answered. Appellant received answers to his propounded interrogatories on September 30,

The record indicates that Appellant also served Coakley with Interrogatories and

a Request for Documents on or around February 17, 2009, and Coakley responded to those

discovery requests on or around May 12, 2009.

The February 17

service date was five days prior to the expiration period if the

periodwas extended for Appellant’s worker’s compensation claim. However, this issue was

not raised before us, so we consider December 21

to be the date of accrual.

2009.

The service date itself was two months after the expiration of the statute of

limitations.

The fact that Appellant relied upon Forsgate’s Answers to Interrogatories to

glean the names of other potential tortfeasors, namely Transwestern and Brickman, does not

mean that he may appeal to the discovery rule in order to change the date of the accrual of

his cause of action. This is so because Appellant’s actual knowledge of the date of the

alleged tortious conduct that resulted in his injury was never in doubt. The limitations period

had begun to run from the date of injury, December 21, 2005, and Appellant is “charged with

knowledge of facts that would have been disclosed by a reasonably diligent investigation.”

O'Hara v. Kovens, 305 Md. 280, 289, 503 A.2d 1313, 1317 (1986) (quoting Lutheran Hosp.

v. Levy, 60 Md. App. 227, 237, 482 A.2d 23, 27 (1984)). Indeed, “[t]he beginning of

limitations is not postponed until the end of an additional period deemed reasonable for

making [an] investigation . . . . From that date the statute itself allows sufficient time – three

years – for reasonably diligent inquiry and for making a decision as to whether to file suit.”

Id. (quoting Lutheran Hosp., 60 Md. App. At 237-38, 482 A.2d at 27-28.) Thus, the three

year statute of limitations for civil actions was, as a matter of law, sufficient time for

Appellant to discover that Transwestern was the management company for the building and

that Brickman was contracted by Transwestern to perform snow removal at the property.

Other exceptions to the discovery rule are also inapplicable. The “continuing harm

theory” tolls the statute of limitations in cases where there are continuous violations.

Violations that are continuing in nature are not barred by the statute of limitations merely

because some occurred earlier. MacBride, 402 Md.at 584, 937 A.2d at 240; see Shell Oil Co.

v. Parker, 265 Md. 631, 636, 291 A.2d 64, 67 (1972). There was no continuing harm in this

case, as Appellant did not allege ongoing tortious conduct, but only that resulting in a single

injury incurred on one day. Further, the doctrine, if applicable, would not toll the statute of

limitations if the plaintiff “sooner knew or should have known of the injury or harm.”

(continued...)

There was no fact-finding required to determine when Appellant was on “notice of

the nature and cause of his . . . injury.” Frederick Rd., 360 Md. at 96, 756 A.2d at 973; cf.

Poffenberger 290 Md. at 637, 431 A.2d at 681. Therefore the rulings granting summary

judgment in favor of Transwestern and dismissal in favor of Brickman were appropriate.

Appellant also decries the trial judge’s admonition that he did not engage in

“reasonable diligence to discover the names of additional Appellees,” and that the factual

question of Appellant’s diligence was a question for the jury, citing our decision in Frederick

Road, 360 Md. at 103-04, 756 A.2d at 976. To the contrary, because there was no fact-

finding required to determine the accrual date, the question of Appellant’s diligence is

immaterial. See Frederick Rd., 360 Md. at 95, 756 A.2d at 973. The discovery rule provides

that the “cause of action accrues when the claimant in fact knew or reasonably should have

known of the wrong.” Poffenberger, 290 Md. at 636, 431 A.2d at 680. By Appellant’s own

admission, the injury and discovery of the injury occurred on the same day. Thus, the judge

properly applied the general, three-year limitations period.

In addition, Appellant’s reliance on Frederick Road is misplaced. That case embodies

an exception to the discovery rule not applicable here,

namely the “continuation of events”

(...continued)

MacBride, 402 Md.at 586, 937 A.2d at 241, (quoting Duke St. Ltd. P'ship v. Bd. of Cnty.

Comm’rs, 112 Md. App. 37, 52, 684 A.2d 40, 48 (1996)). Appellant admits that he had

actual knowledge of the injury at the time it occurred, and thus this exception is further

inapplicable.

Also, there was no allegation of fraud used to conceal the cause of action that would

justify a tolling of the statute of limitations. See Bragunier, 368 Md. at 628, 796 A.2d at 755

(citing Md. Code (1973, 1998 Repl. Vol.), § 5-203 of the Courts and Judicial Proceedings

Article (“If the knowledge of a cause of action is kept from a party by the fraud of an adverse

party, the cause of action shall be deemed to accrue at the time when the party discovered,

or by the exercise of ordinary diligence should have discovered the fraud.”)).

theory, that applies when there is a fiduciary relationship between a plaintiff and a potential

defendant that “gives the confiding party the right to relax his or her guard and rely on the

good faith of the other party so long as the relationship continues to exist.” Frederick Rd.,

360 Md. at 97-98, 756 A.2d at 975. In Frederick Road, we held that there were genuine

issues of material fact that a jury was required to resolve regarding whether a party to a

“continuous, confidential relationship” had knowledge that would cause a reasonable person

to undertake an investigation which, if “pursued with reasonable diligence,” would have led

to earlier discovery of attorney malpractice and related wrongdoing. Frederick Rd., 360 Md.

at 90, 103-04, 756 A.2d at 970, 978; see Dual, Inc. v. Lockheed Martin Corp., 383 Md. 151,

174, 857 A.2d 1095, 1108 (2004) (The continuation of events theory does not toll the

limitations period where a “party had knowledge of facts that would lead a reasonable person

to undertake an investigation that, with reasonable diligence, would have revealed

wrongdoing on the part of the fiduciary.”).

Unlike in Frederick Road, there was no fiduciary or confidential relationship

between the parties in this case that prevented Appellant from gaining knowledge of all

potential tortfeasors through reasonable diligence. Accordingly, we hold, as a matter of law,

that the three year statute of limitations for civil actions bars Appellant’s claim against

Transwestern and Brickman because no exception to the discovery rule is applicable to

Appellant.

JUDGMENT OF THE CIRCUIT

COURT FOR MONTGOMERY

COUNTY REVERSED IN PART,

AFFIRMED IN PART. CASE

REMANDED TO THAT COURT FOR

FURTHER PROCEEDINGS

CONSISTENT WITH THIS OPINION.

THE COSTS TO BE DIVIDED

EQUALLY: POOLE TO PAY 25%,

COAKLEY TO PAY 25%, JUDD TO

PAY 25%, AND FORSGATE TO PAY

25%.