On December 16, 2020, in a reported opinion by Judge J. Berger, the Court of Special Appeals of Maryland reversed the trial court’s judgment in Stephanie Gonzalez-Perdomo v. Six Flags America, L.P. (Case No. CAL-18-15218, Circuit Court for Prince George’s County) and remanded the matter for a new trial on liability consistent with the Court’s opinion.
The Court of Special Appeals held that the trial court’s refusal to instruct on the “open and obvious” defense when the issue was clearly raised by the facts adduced in evidence was an abuse of discretion and required a reversal of the judgment and a new trial on liability. The court specifically held that the pattern instructions were insufficient as a matter of law when the defense was generated as an issue of fact. Most significantly for the defense bar, the Court directly calls for the Standing Committee on Pattern Jury Instructions of the Maryland State Bar Association to review Maryland Civil Pattern Jury Instructions – Civil (“MPJI-Cv”) 24:3 (2019): “The duty owed to an invitee is to use reasonable care to see that those portions of the property that the invitee may be expected to use are safe.” The Court points out that, as F&P argued, the pattern instruction is incomplete and there is a lack of clarity with regard to the case precedent set forth in premise liability cases like Casper, 316 Md. at 582, and Tennant, 115 Md. App. at 389, “a possessor of land has the duty to protect an invitee from injury caused by an unreasonable risk that the invitee would be unlikely to perceive in the exercise of ordinary care for his or her own safety, and about which the owner knows or could have discovered in the exercise of reasonable care.”