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IN THE COURT OF APPEALS OF MARYLAND NO. 5 SEPTEMBER TERM, 1996 _________________________________________ ADM PARTNERSHIP et al. v. KEEN TYKENKO MARTIN et al. _________________________________________ Bell, C.J. Eldridge Rodowsky Chasanow *Karwacki Raker Murphy, Robert C. (Retired, specially assigned) JJ. _________________________________________ Opinion by Bell, C.J. Eldridge, J., dissents _________________________________________

FILED: November 19, 1997 *Karwacki, J., now retired, participated in the hearing and conference of this case while active members of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion.

The issue this case presents is whether the "voluntariness" element of the assumption of risk defense is met when an employee encounters a known risk while performing a responsibility of her employment, but, nevertheless, based solely on her subjective belief that the failure to fulfill that responsibility may result in adverse economic consequences to her employer and ultimately to herself, proceeds to confront the risk, sustaining, in the process, serious bodily injury. We shall answer in the affirmative. In the case sub judice, Keen Tykenko Martin (Martin) and American Motorist Insurance Company, (collectively, the respondents)1 filed, in the Circuit Court for Montgomery County, an action sounding in negligence against ADM Partnership, Inc. and its three general partners, Scott L. MacDonald, Joe C. Adams, and Franklin J. Duane, (collectively, the petitioners), for injuries Martin sustained when she slipped and fell on an ice and snow covered walkway as she made a delivery at a building the petitioners owned. At the conclusion of the respondents' case, the circuit court granted the petitioners' motion for judgment and entered judgment accordingly. Viewing the evidence in the light most favorable to the respondents, the court found that the evidence conclusively established that Martin knowingly and voluntarily assumed the risk of falling on a walkway covered with ice and snow. The respondents appealed that judgment to the Court of Special Appeals, which, American Motorists is Ideal Reprographics' worker's compensation insurer. Ideal Reprographics, Inc. is Martin's employer. American Motorists, therefore, paid Martin's worker's compensation benefits. As a result, it was subrogated to Martin's rights. All rights and defenses applicable to Martin are equally applicable to American Motorists. See Md. Code (1957, 1991 Repl. Vol., 1997 Supp.)

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Maryland Law