Michael Janoska; Holly Janoska v. D.c. Development, LLC; Deep Creek Marina, LLC; Adrian Spiker, Ii

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1393
MICHAEL JANOSKA; HOLLY JANOSKA,
Plaintiffs - Appellants,
v.
D.C. DEVELOPMENT, LLC; DEEP CREEK MARINA, LLC; ADRIAN
SPIKER, II,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:07-cv-01232-WDQ)
Submitted: February 6, 2009 Decided: May 12, 2009
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
Robert L. Allen, Pittsburgh, Pennsylvania; Victor Pribanic,
PRIBANIC & PRIBANIC, LLC, White Oak, Pennsylvania, for
Appellants. Paul M. Finamore, Brett A. Buckwalter, NILES,
BARTON & WILMER, LLP, Baltimore, Maryland; John R. Merinar, Jr.,
Sara E. Hauptfuehrer, STEPTOE & JOHNSON, PLLC, Clarksburg, West
Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael and Holly Janoska appeal from the district
court’s orders granting summary judgment in favor of Defendants
in their action in which they asserted that Defendants’
negligence resulted in Michael Janoska’s physical injuries, and
denying their motion for reconsideration of that order. The
district court found that Janoska assumed the risk of injury
when, while working as a snowmaker at a ski resort, he
approached a pickup truck in which the driver had been driving
erratically on the closed ski slopes.
In Maryland, assumption of the risk is an affirmative
defense that operates as a complete bar to recovery. Crews v.
Hollenbach, 751 A.2d 481, 488 (Md. 2000). A person assumes the
risk if he “(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) (citing Liscombe v. Potomac Edison Co., 495 A.2d 838, 843
(Md. 1985)). However, “if the defendant’s tortious conduct has
left [the plaintiff] no reasonable alternative course of conduct
in order to . . . avert harm to himself or another,” the
acceptance of the risk is not voluntary. ADM P’ship, 702 A.2d
at 735 (quoting Restatement (Second) of Torts § 496E).
Here, Janoska testified during his deposition that he
approached the truck because he “was very concerned about the
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fact that this person was going to cause damage to himself or
the snowmaking equipment.” Janoska also presented evidence that
a lot of dangerous high voltage electric wires run to the snow
machines. If the driver of the pickup truck were to damage the
snowmaking machines, it could result in a significant risk of
injury to the occupants of the truck and also to any other
persons on the ski slope, including Janoska and all other
snowmakers who were working on the slopes.
We find this evidence sufficient to create a jury
question as to whether Janoska was left with “no reasonable
alternative course of conduct in order to . . . avert harm to
himself or another,” ADM P’ship, 702 A.2d at 735, and thus
whether he voluntarily accepted the risk of injury.
Accordingly, we reverse the district court’s grant of summary
judgment on this issue and remand for further proceedings. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
REVERSED AND REMANDED

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