                               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




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