Jamie Meyers v. Michael Lamer , 743 F.3d 908 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1438
JAMIE MEYERS,
Plaintiff - Appellant,
v.
MICHAEL EUGENE LAMER; CARROLL COUNTY FOODS, LLC, d/b/a
Performance Foodservice−Carroll County,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Stephanie A. Gallagher, Magistrate
Judge. (1:11-cv-03507-SAG)
Argued: December 10, 2013 Decided: February 25, 2014
Before KING, GREGORY, and FLOYD, Circuit Judges.
Vacated and remanded with instructions by published opinion.
Judge Floyd wrote the opinion, in which Judge King and Judge
Gregory joined.
ARGUED: Paul David Bekman, Emily C. Malarkey, SALSBURY,
CLEMENTS, BEKMAN, MARDER & ADKINS, LLC, Baltimore, Maryland, for
Appellant. Brian S. Goodman, PESSIN KATZ LAW, P.A., Towson,
Maryland, for Appellees. ON BRIEF: Robert S. Campbell, PESSIN
KATZ LAW, P.A., Towson, Maryland, for Appellees.
FLOYD, Circuit Judge:
Jamie Meyers was working in a utility bucket positioned
above an unblocked lane of traffic when a tractor-trailer truck
driven by Michael Lamer struck the bucket. As a result of the
collision, Meyers was ejected from the bucket and suffered
injuries to his back and lower body. Meyers then sued Lamer and
Lamer’s employer for negligence pursuant to Maryland state law.
The parties cross-moved for summary judgment, and the district
court granted summary judgment to Lamer and his employer and
denied summary judgment to Meyers. This appeal ensued. For the
reasons that follow, we vacate the judgment below and remand
with instructions.
I.
On February 16, 2009, Jamie Meyers was performing work for
Rommel Engineering & Construction, Inc. (“Rommel”), a company
that contracts with the State of Maryland to maintain traffic
signals and streetlights. Meyers’s task that day was to replace
the traffic signals at the intersection of Maryland Route 5 and
Maryland Route 249. This work required Meyers to be in a
boom-supported bucket positioned above the intersection. Eric
Hatfield, who was also employed by Rommel, accompanied Meyers as
Meyers’s groundsman. Hatfield’s task was to watch for oncoming
traffic—especially at times when Meyers’s work required that he
2
turn his back to oncoming traffic—and to warn Meyers when a
vehicle was approaching so that Meyers could, if necessary,
increase the clearance between the ground and the bottom of the
bucket using controls in the bucket.
The set-up for the worksite, which was determined by
Rommel’s superintendent, Dan McMunn, was as follows. Meyers and
Hatfield each parked a vehicle along the shoulder of Route 5:
for Meyers, a utility truck with an extendable boom and a bucket
at the end of the boom, and for Hatfield, a heavy-duty pick-up
truck. Meyers’s truck was parked closer to the intersection
with Hatfield’s truck parked behind it, making the rear of
Hatfield’s truck the first vehicle that drivers would see as
they approached the intersection in the lane adjacent to the
shoulder where the trucks were parked. Hatfield’s truck had a
light board that displayed blinking lights to signal “caution,”
as well as flashing strobe lights, both of which were activated
during the time that Meyers was performing work. Meyers’s truck
also had flashing strobe lights.
Additionally, Meyers and Hatfield placed warning signs
along the shoulder of Route 5 to indicate that work was being
performed ahead and that drivers should proceed with caution.
This included placing signs at distances of one-and-one-half
miles, one mile, one-half mile, and one-quarter mile before the
intersection as northbound traffic approached the intersection.
3
In the 100 feet immediately prior to the intersection, Meyers
and Hatfield placed cones along the line separating the vehicle
travel lane from the shoulder of Route 5, where their trucks
were parked. Notably, Meyers and Hatfield did not close the
northbound lane of travel adjacent to the shoulder or use
flagmen with signs to allow traffic to pass only intermittently.
The parties and their experts dispute whether failure to close
the lane of travel or use flagmen was consistent with the
standard of care for the industry.
The incident giving rise to the underlying lawsuit occurred
when a tractor-trailer truck owned by Carroll County Foods, LLC,
and driven by Michael Lamer (together, “Appellees”) collided
with Meyers’s bucket. Deposition testimony revealed that Meyers
had told Hatfield that he had to turn his back to the northbound
lane of traffic on Route 5 to perform his work and that Hatfield
told Meyers, “[N]o problem, I got you.” Meanwhile, Lamer was
talking to his wife on his cell phone as he approached the
intersection where Meyers was working and did not notice the
caution signs placed alongside the shoulder of the road leading
up to the intersection. Lamer did see Meyers’s bucket but
thought that there was enough clearance between the top of his
truck and the bucket to safely pass beneath it. Lamer’s
estimation regarding the clearance turned out to be erroneous
and, as a result, his truck collided with Meyers’s bucket.
4
Immediately after the collision, Lamer slammed on his brakes and
skidded to a stop.
As a result of the collision, Meyers was ejected from the
bucket. Although Meyers was wearing a safety harness, he
nevertheless suffered injuries to his back and lower body. On
October 27, 2011, Meyers sued Appellees in Maryland state court,
alleging that Lamer failed to, inter alia, “keep a proper
lookout,” “appreciate that the tractor trailer he was operating
would not go under the boom-bucket,” and “carefully and
prudently apply his brakes so as to avoid a collision.”
Appellees subsequently removed the action to the district court
based on diversity of citizenship.
Following discovery, the parties cross-moved for summary
judgment. The district court granted Appellees’ motion and
denied Meyers’s motion, each on the bases that Meyers assumed a
risk that he would be struck by a tractor-trailer truck while
working above an open lane of traffic and because Meyers was
contributorily negligent. Meyers then timely filed this appeal.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
II.
This Court reviews the grant of summary judgment de novo.
Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283
(4th Cir. 2004) (en banc). Summary judgment is appropriate “if
5
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). Any reasonable inferences are
to be drawn in favor of Meyers, as the nonmoving party. 1 See
Webster v. U.S. Dep’t of Agric., 685 F.3d 411, 421 (4th Cir.
2012). Because the district court had jurisdiction over this
case below based on the diversity of the parties, see 28 U.S.C.
§ 1332, we apply Maryland state law. Indus. Enters., Inc. v.
Penn Am. Ins. Co., 637 F.3d 481, 487 (4th Cir. 2011).
As noted above, the district court granted summary judgment
to Appellees on the grounds that Meyers assumed a risk that the
bucket would be hit by a vehicle passing beneath it and because
Meyers was contributorily negligent. We address these reasons
in turn.
1
Although Meyers’s Notice of Appeal indicates an intent to
appeal both the denial of his motion for summary judgment and
the grant of Appellees’ motion for summary judgment, Meyers
confines his arguments on appeal to the latter motion only.
This is evident by looking at Meyers’s prayer for relief in his
opening brief and reply brief, wherein Meyers asks that “this
Court reverse the decision of the District Court, and remand
this case for a trial on the merits.” Accordingly, Meyers
waived any appeal of the district court’s denial of his motion
for summary judgment. See Canady v. Crestar Mortg. Corp., 109
F.3d 969, 973–74 (4th Cir. 1997) (issues raised in notice of
appeal but not briefed on appeal are deemed waived).
6
A.
The assumption-of-risk doctrine “is grounded on the theory
that a plaintiff who voluntarily consents, either expressly or
impliedly, to exposure to a known risk cannot later sue for
damages incurred from exposure to that risk.” Crews v.
Hollenbach, 751 A.2d 481, 488 (Md. 2000). “[T]o 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, 702 A.2d 730, 734 (Md.
1997). Maryland’s courts apply a hybrid objective–subjective
standard to determine whether an injured plaintiff had the
requisite knowledge and appreciation of the risk. See C&M
Builders, LLC v. Strub, 22 A.3d 867, 882–83 (Md. 2011). More
specifically,
[I]t is [ordinarily] for the jury to
determine whether a plaintiff knew of the
danger, appreciated the risk, and acted
voluntarily. . . . [But] “when it is clear
that a person of normal intelligence in the
position of the plaintiff must have
understood the danger, the issue [concerning
knowledge, appreciation of the danger and
voluntariness] is for the court.”
Warsham v. James Muscatello, Inc., 985 A.2d 156, 168 (Md. Ct.
Spec. App. 2009) (fifth alteration in original) (citations
omitted) (quoting Schroyer v. McNeal, 592 A.2d 1119, 1123 (Md.
7
1991)). If the plaintiff is determined to have assumed a risk,
then the assumption of that risk “completely bars” any recovery.
Id. at 167.
Meyers argues that the assumption-of-risk doctrine does not
apply to him because he was a “worker[] engaged in work-related
tasks in the roadway.” For this argument, Meyers relies on
Clayborne v. Mueller, 284 A.2d 24, 29 (Md. Ct. Spec. App. 1971)
(Clayborne I), aff’d, 291 A.2d 443 (Md. 1972) (Clayborne II).
There, a police officer was struck by a passing motorist who did
not see the officer standing alongside the road while the
officer was talking to a stopped motorist that he had pulled
over. Id. at 25–26. In affirming the trial court’s verdict in
favor of the officer and against the passing motorist, the
appellate court noted that the assumption-of-risk doctrine “is
not applicable to those persons such as workers in the street,
traffic directors or police officers exercising traffic control
and regulation enforcement if they are in the course of the
normal pursuit of their duties.” Id. at 28–29. Maryland’s
highest court—the Maryland Court of Appeals—affirmed this
holding, concluding that because the officer “was following
usual police procedure, there can be no basis for a claim that
he, as a matter of law, voluntarily assumed the risk of an
obvious danger.” Clayborne II, 291 A.2d at 447.
8
Appellees claim that Meyers waived any argument concerning
applicability of the assumption-of-risk defense because Meyers’s
arguments in the district court pertained to the merits of that
defense only, to wit, whether Meyers assumed a risk. Although
Appellees are correct that Meyers did not challenge the
applicability of the assumption-of-risk defense below—which
would normally lead us to conclude that the argument was waived
on appeal, see Holland v. Big River Minerals Corp., 181 F.3d
597, 605 (4th Cir. 1999)—it is the fundamental province of this
Court to decide cases correctly, even if that means considering
arguments raised for the first time on appeal (or not raised by
the parties at all). See Kirby v. Allegheny Beverage Corp., 811
F.2d 253, 256 n.2 (4th Cir. 1987) (“Although this point was not
presented to the district court or raised by the parties on
appeal, that does not preclude this Court from considering it
sua sponte, in order to reach the correct result.” (citation
omitted) (internal quotation marks omitted)); Artrip v.
Califano, 569 F.2d 1298, 1300 n.5 (4th Cir. 1978) (“Normally,
this court would not entertain an appeal where the record does
not indicate that the issues were raised below, but where
necessary to reach the correct result, and where the record
provides an adequate basis for consideration on the merits, we
will review such issues.”); see also Seney v. Rent-A-Center,
Inc., 738 F.3d 631, 635 n.3 (4th Cir. 2013) (citing Kamen v.
9
Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (“When an issue
. . . is properly before the court, the court is not limited to
the particular legal theories advanced by the parties, but
rather retains the independent power to identify and apply the
proper construction of governing law.”)). In this case,
permitting Appellees to avail themselves of the assumption-of-
risk defense when Maryland law carves out an exception for
“persons such as workers in the street . . . in the course of
the normal pursuit of their duties,” Clayborne I, 284 A.2d
at 29, would be contrary to the rule of law.
In response, Appellees advance three arguments. First,
Appellees claim that the Clayborne cases “involved a police
officer and, therefore, any reference to highway workers was no
more than dicta.” We see no reason, however, why workers such
as Meyers should not also be covered by the exception,
particularly in light of the fact that the court in Clayborne I
listed “workers in the street” in its serial recitation of those
classes of persons to whom the assumption-of-risk doctrine is
not applicable. See 284 A.2d at 29. Second, Appellees argue
that “[m]ore modern cases [since Clayborne] have applied the
doctrine of assumption of risk where the plaintiff is engaged in
a dangerous profession.” For this assertion, Appellees rely on
Crews. In Crews, the foreman of a gas-line repair team sued
various defendants after he was injured by an explosion while
10
attempting to fix a gas-line leak, 751 A.2d at 484–85, and the
Maryland Court of Appeals held that the assumption-of-risk
defense applied and barred the plaintiffs’ recovery, see id.
at 489. Notably, the Crews court did not reference the
Clayborne cases, perhaps because the plaintiff was plainly not a
“worker[] in the street, traffic director[] or police officer[]
exercising traffic control and regulation enforcement,”
Clayborne I, 284 A.2d at 29.
Finally, Appellees argue that Clayborne II abrogated the
central holding from Clayborne I upon which Meyers relies. To
be sure, the court in Clayborne II did state that, “It is not
necessary to describe police officers acting pursuant to their
duties as having a ‘special status’. They, like all other
persons, must act reasonably under all of the circumstances
. . . .” 291 A.2d at 447. Whether a plaintiff acts reasonably,
however, goes to the issue of the plaintiff’s contributory
negligence—which was also at issue in the Clayborne cases—and
not the plaintiff’s assumption of risk, which looks instead at
the inherent dangers of a particular activity. Compare Kassama
v. Magat, 792 A.2d 1102, 1110 (Md. 2002) (“Contributory
negligence is conduct on the part of the plaintiff which falls
below the standard to which he should conform for his own
protection . . . .” (citation omitted) (internal quotation marks
omitted)), with Poole v. Coakely & Williams Constr., Inc.,
11
31 A.3d 212, 227 (Md. 2011) (“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.”). Further, given the court’s
statement in Clayborne II that “there can be no basis for a
claim that [the police officer], as a matter of law, voluntarily
assumed the risk of an obvious danger,” 291 A.2d at 447
(emphasis added), we do not think that Clayborne II disturbed
the holding from Clayborne I upon which Meyers relies.
Accordingly, we need not assess the merits of Appellees’
assumption-of-risk defense insofar as Meyers’s status as a
“worker[] in the street” precludes Appellees from relying on the
defense that Meyers assumed the risk that the bucket would be
struck by a vehicle passing beneath it. We turn now to whether
Meyers was contributorily negligent.
B.
In Maryland, “[c]ontributory negligence is the failure to
observe ordinary care for one’s own safety. It is the doing of
something that a person of ordinary prudence would not do, or
the failure to do something that a person of ordinary prudence
would do, under the circumstances.” Menish v. Polinger Co., 356
A.2d 233, 236 (Md. 1976) (citation omitted) (internal quotation
12
marks omitted). “Ordinarily, the question of whether the
plaintiff has been contributorily negligent is for the jury, not
the judge, to decide.” Campbell v. Balt. Gas & Elec. Co., 619
A.2d 213, 216 (Md. Ct. Spec. App. 1993); see also Williamson
Truck Lines, Inc. v. Benjamin, 222 A.2d 375, 379 (Md. 1966) (“It
is only where the minds of reasonable persons cannot differ that
the court is justified in deciding [contributory negligence] as
a matter of law.”). Like the assumption-of-risk defense, a
determination that a plaintiff was contributorily negligent
serves as a complete bar to recovery against a defendant who was
also negligent. Woolridge v. Price, 966 A.2d 955, 961 (Md. Ct.
Spec. App. 2009). That is to say, even if the plaintiff is
determined to be only one percent negligent in an accident and
the defendant ninety-nine percent negligent, the plaintiff is
still denied recovery. See Harrison v. Montgomery Cnty. Bd. of
Educ., 456 A.2d 894, 898 (Md. 1983) (“[A] plaintiff who fails to
observe ordinary care for his own safety is contributorily
negligent and is barred from all recovery, regardless of the
quantum of a defendant’s primary negligence.”). Although the
great majority of the States employ a comparative-negligence
system that awards damages as a pro rata percentage of fault,
the Maryland Court of Appeals recently reaffirmed its commitment
to the doctrine of contributory negligence. Coleman v. Soccer
Ass’n of Columbia, 69 A.3d 1149, 1152 (Md. 2013). Appellees, as
13
the defendants, bear the burden of proving that Meyers was
contributorily negligent. McQuay v. Schertle, 730 A.2d 714, 720
(Md. Ct. Spec. App. 1999).
1.
Before assessing the merits of the contributory-negligence
defense in this case, we first address briefly an evidentiary
issue relating to the admissibility of Meyers’s expert report.
In opposition to Appellees’ motion for summary judgment and in
support of his own motion for the same, Meyers submitted the
expert report of Richard Balgowan, a professional engineer, who
concluded that the worksite was set up in accordance with the
standard of care for the industry. Appellees maintain on
appeal, as they did at summary judgment, that Balgowan’s report
is inadmissible because it was not authenticated or accompanied
by a sworn affidavit. See Orsi v. Kirkwood, 999 F.2d 86, 92
(4th Cir. 1993). Appellees further contend that without
Balgowan’s expert report, Meyers did not present any evidence
demonstrating that he took the necessary precautions in
accordance with industry standards to ensure his safety, and
thus, there was nothing in the record to preclude summary
judgment to Appellees as to Meyers’s contributory negligence.
We review the trial court’s decision regarding whether to
admit evidence into the summary judgment record for an abuse of
14
discretion. Distaff, Inc. v. Springfield Contracting Corp., 984
F.2d 108, 111 (4th Cir. 1993). Here, it is unclear whether the
magistrate judge considered Balgowan’s report in determining
that Meyers was contributorily negligent insofar as the summary
judgment order is completely void of any mention of Balgowan’s
report (and is likewise silent with respect to the report of
Appellees’ opposing expert). Regardless, we need not decide
whether Balgowan’s report should have been admitted or excluded
at summary judgment because, as we explain below, other evidence
tended to show that a material factual dispute for the jury
exists as to what precautions and actions a reasonable person in
Meyers’s position would have taken.
2.
On the merits, Appellees claim that “Meyers is chargeable
with foreseeing that a tractor-trailer may enter the lane of
travel where he had positioned the bucket and [with] guard[ing]
against that event.” More specifically, Appellees assert that
Meyers was contributorily negligent because he failed to block
off the lane of traffic where Lamer traveled and turned his back
to oncoming traffic during a time that he knew that the bucket
was in an unsafe position. Appellees also claim that Meyers
“cannot rely upon any purported lookout being provided by Mr.
15
Hatfield as an indication that Mr. Meyers took care for his
personal safety.”
The parties and district court all discuss Campbell, in
which a worker’s supervisor gave assurances to the worker that
all power lines were a safe distance from a building on which
work was to be performed. 619 A.2d at 215. The supervisor
failed to notice a particular line that was not a safe distance
away from the building, however, and the worker was injured when
a metal ladder that he was holding came into contact with the
line. Id. at 215. The worker sued a utility company that
operated the power line for negligence and, after the worker
received a verdict in his favor, the trial court granted the
utility company’s motion for judgment as a matter of law on the
basis that any recovery for the worker was barred by his
contributory negligence. Id. at 216.
At the outset, we note that this case is markedly
distinguishable from Campbell because in Campbell, the power
line that caused the injury was stationary and could have been
fully inspected by the plaintiff himself prior to lifting the
ladder. See 619 A.2d at 615. By contrast, the vehicles passing
beneath Meyers were moving, and it is undisputed that certain
tasks required that Meyers turn his back to traffic. Indeed,
Appellees’ own expert conceded as much during his deposition:
16
[The groundsman] acts as [the bucketman’s]
eyes to approaching traffic. . . . [T]he man
in the bucket is doing other work and may
not be able to pay full-time . . . attention
to the approaching traffic. . . . [It]’s the
job of the groundsman to watch what’s
approaching and if he sees a large vehicle
coming, to let the bucketman, or Mr. Meyers
in this case, to let him know that there is
a large vehicle approaching.
Nevertheless, Appellees seize on the Campbell court’s language
that
assurances [of safety from another person]
do not relieve a person from the duty of
caring for his own safety, and a person
cannot rely on another’s assurances where he
is aware of the danger involved or where the
danger is obvious enough that an ordinarily
prudent person would not so rely.
Id. at 218 (citation omitted) (internal quotation marks
omitted). The court noted immediately before this statement,
however, that “[u]nder Maryland law, it is clear that a person
may rely on assurances of safety made to him by others in a
situation where an ordinarily prudent person would do so.” Id.(emphasis added). In affirming the trial court’s grant of the
utility company’s motion, the Campbell court looked to “Maryland
cases that directly address the issue of contributory negligence
in electrical contact cases,” id. at 217; thus, to resolve the
issue before us, we will do the same with respect to cases
involving road-workers and vehicular accidents.
17
In Schutz v. Breeback, a road-worker was injured by a
moving vehicle when the worker had his back turned to oncoming
traffic and was working in the lane of traffic adjacent to the
shoulder of the road. 178 A.2d 889, 890 (Md. 1962). As in this
case, there were warning signs placed alongside the road in
Schutz, which the driver of the vehicle that struck the
plaintiff, like Lamer, did not see. Id. The defendant–motorist
argued on appeal that the signs were not placed in the proper
locations per state regulations, and thus the plaintiff
contributed to his own injury. Id. The plaintiff, in turn,
argued that “even if you find that the foreman who was in charge
of this [crew] of which the plaintiff was a member did not place
that sign in conformity with regulations of the State Roads
Commission, that cannot be held against the plaintiff in this
case who was a subordinate employee.” Id. at 890–91 (internal
quotation marks omitted). The Maryland Court of Appeals
affirmed the trial court’s ruling that the plaintiff was not
contributorily negligent as a matter of law, noting that, “It is
generally recognized that workmen in the highway cannot be as
alert as pedestrians or other travelers, and they are said to
occupy a special status. The question whether such a worker has
exercised reasonable care is ordinarily left to the jury.” Id.
at 891; see also Williamson, 222 A.2d at 383 (“A person engaged
in repairing or assisting the movement of a vehicle on the
18
highway . . . . is not bound to anticipate negligence on the
part of the operators of approaching vehicles, and[] . . . . he
need not continuously watch for approaching vehicles where the
nature of the work in which he is engaged requires his
attention.”).
Here, the principal reason upon which the district court
based its grant of summary judgment to Appellees was Meyers and
Hatfield’s failure to take additional precautions. The district
court also stated that “Hatfield’s role as ‘lookout’ did not
relieve Mr. Meyers from the duty of caring for his own safety.
Even if the ultimate decisions as to which safety measures to
employ could not be made by Mr. Meyers unilaterally, at the time
he controlled the bucket, he was aware that the travel lane
remained open to all traffic.” The question to be resolved,
however, is not whether Meyers could have done more to protect
himself, but rather whether an “ordinarily prudent person under
the same or similar circumstances” would have turned his back to
continue working, as Meyers did. Menish, 356 A.2d at 236; see
also id. (standard for assessing plaintiff’s conduct is that of
a reasonable person, “not that of a very cautious person”).
Given (1) that Hatfield told Meyers prior to Meyers turning his
back, “I got you. No problem. Don’t worry about it.”, and
(2) Meyers’s undisputed testimony that he “had no choice, no
matter what kind of training [he] ha[d], [but] to put [him]self
19
in a [vulnerable] position that[] [was] underneath the [traffic]
signal” to perform his work, 2 (J.A. 95), there is “room for
difference of opinion . . . by reasonable minds” as to whether
Meyers was contributorily negligent by not keeping a constant
watch himself. Faith v. Keefer, 736 A.2d 442, 443 (Md. Ct.
Spec. App. 1999) (emphasis omitted) (citation omitted) (internal
quotation marks omitted).
Moreover, a party “is charged with notice of . . . what
common experience tells may, in all likelihood, occur, and to
anticipate and guard against what usually happens.” Menish, 356
A.2d at 237 (citation omitted) (internal quotation marks
omitted). Meyers testified that he and Hatfield had worked
together “pretty much everyday” and “for years,” and there is
nothing in the record to indicate that Hatfield previously
failed to warn Meyers (or any repairman) to adjust the height of
the bucket or that collisions with tractor-trailers “usually
happen[]” when a worker is in a bucket and has an assistant on
the ground keeping watch for approaching, high-clearance
2
Although we decline to make a ruling on the admissibility
of Balgowan’s expert report, we note that Balgowan, like Meyers,
also testified that Meyers “would have [to] put himself in a
position [where the bucket might get hit] to do the work that he
needed to do at the time.” (J.A. 431; see id. at 440 (same).)
Although Appellees stridently contest the admissibility of
Balgowan’s report, they never dispute this aspect of Balgowan’s
testimony.
20
vehicles. Meyers was thus entitled to rely on Hatfield to
provide fair warning to him. See id. at 237–38 (“Absent actual
or constructive knowledge to the contrary, one may act on the
assumption that he will not be exposed to danger that will come
only by the breach of duty which another owes him.”). Summary
judgment on the basis that Meyers was contributorily negligent
was therefore inappropriate.
III.
For the reasons set forth above, we vacate the district
court’s ruling that Meyers assumed the risk that the bucket
would be struck by a vehicle because Meyers’s status as a worker
in the street precludes availability of the assumption-of-risk
defense to Appellees. Further, we vacate the district court’s
ruling that Meyers was contributorily negligent and remand this
case for trial.
In remanding, we recognize that Meyers faces a difficult
and daunting task of convincing a jury that he was not
contributorily negligent—not even one iota. That said, it is
not our duty to weigh whether the actions taken by Meyers amount
to negligent conduct. See Balt. Transit Co. v. State ex rel.
Castranda, 71 A.2d 442, 447 (Md. 1950) (“In order that a case
may be withdrawn from the jury on the ground of contributory
negligence, the evidence must show some prominent and decisive
21
act which directly contributed to the accident and which was of
such a character as to leave no room for difference of opinion
thereon by reasonable minds.”). Thus, remand is appropriate.
VACATED AND REMANDED
WITH INSTRUCTIONS
22