ANNAPOLIS, Md. (Legal Newsline) - The Maryland Court of Appeals ruled Tuesday that a trial judge's refusal to permit a requested question be included on a special verdict sheet, asking the jury to consider assumption of the risk defense, constitutes reversible error.

The petitioner in the case, S & S Oil Inc., argued that by denying the requested question, the Prince George's County Circuit Court prevented the jury from considering whether respondent Elaine W. Jackson assumed the risk of her injuries and committed reversible error.

On June 21, 2007, Jackson entered a gas station owned and operated by S & S.

The gas station, located in Lanham, Md., was in the process of being renovated. This included renovating the floor near the soda machine in the store portion of the building.

About 5 p.m. that day, Jackson and her granddaughter drove to the station to buy motor oil. Jackson parked her car, walked to the back aisle of the station store, picked up two quarts of oil, paid for them at the register and exited.

After returning to her car, the woman's granddaughter asked for a soda.

Jackson agreed to buy one for her, and walked back into the building to locate the soda

After spotting the machine, she walked toward it and then misstepped onto uneven ground.

Jackson did not fall, but she testified that her "foot twisted [her] knee" resulting in injury to her right knee and lower back.

As a result, she made several visits to doctors and had outpatient surgery on her knee.

A year later, Jackson filed a negligence suit against S & S in circuit court.

At the close of the three-day trial, the judge required the jury to return its verdict by answering a series of questions on a special verdict sheet. Additionally, the judge provided the jury with a series of oral instructions.

The jury eventually returned a verdict in favor of Jackson, finding that S & S was negligent and that its negligence caused the woman's injuries. The jury also found that Jackson was not "negligent or contributorily negligent" under the circumstances.

It awarded the woman $12,416.41 for past medical expenses and $131,000.00 in non-economic damages, for a total award of $143,416.41.

Following unsuccessful post-trial motions, S & S appealed the judgment to the state Court of Special Appeals.

The company argued that the trial judge committed error in both admitting evidence of certain medical bills, and in not presenting the defenses of assumption of the risk and contributory negligence on the verdict sheet as separate questions.

The intermediate appellate court issued an unreported opinion affirming the trial court's judgment, holding that there was no error by the trial judge as to either claim.

The state's high court issued a writ of certiorari in the case.

In its 29-page ruling this week, the Court concluded the following:

- That the intermediate appellate court was incorrect in concluding that assumption of the risk and contributory negligence were "substantially the same question;"

- The verdict sheet, as written, would cause confusion over which defenses to consider and mislead a reasonable juror to fail to consider the defense of assumption of the risk;

- Failing to adequately present assumption of the risk constituted error because S & S had a right to present the defense to the jury; and

- That error prejudiced the company's case.

"In the current case, the error involved the incomplete verdict sheet, which, in effect, prevented the jury from considering assumption of the risk," Judge Clayton Greene Jr. wrote.

The Court remanded the case to the Court of Special Appeals with instructions to remand it to the circuit court for a new trial, with Jackson to pay the costs.

From Legal Newsline: Reach Jessica Karmasek by email at

More News