The American Meteorological Society tells us black ice is “a popular alternative for glaze. A thin sheet of ice, relatively dark in appearance, may form when light rain or drizzle falls on a road surface that is at a temperature below 0°c. It may also be formed when supercooled fog droplets are intercepted by buildings, fences, and vegetation.” [http://glossary.ametsoc.org/wiki/black_ice].
It’s really kind of a misnomer. The problem with black ice is that it’s not black, it’s clear, which makes it essentially impossible to detect, until it’s too late.
The phrase, and the concept, has found its way into Maryland judicial opinions. Personal injuries caused by slips and falls on black ice often end up in litigation, and that litigation gives insurance defense attorneys a chance to argue for the application of a particular affirmative defense to bar the plaintiff’s claim.
“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.” (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”). “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. 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.” (internal quotations and citations omitted)” Poole v. Coakley, 423 MD 91 .
The test is an objective one.
“[F]or a plaintiff to have knowledge of the risk……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”. Id.