UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HENRY ARTIS,
Plaintiff-Appellant,

v.
                                                               No. 97-1122
BILDON COMPANY; HOLMAN BOILER
REPAIR,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-95-3098-PJM)

Argued: March 2, 1998

Decided: March 31, 1998

Before WILKINSON, Chief Judge, and WILLIAMS and
MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Michael Samuel Rosier, ROSIER & ASSOCIATES,
Oxon Hill, Maryland, for Appellant. Thomas Vincent McCarron,
SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellee
Bildon Company; Kenneth Gordon Stallard, THOMPSON,
O'DONNELL, MARKHAM, NORTON & HANNON, Washington,
D.C., for Appellee Holman Boiler Repair.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Henry and Elsie Artis brought suit against Bildon, Inc. and Holman
Boiler Repair and Plumbing, Inc., alleging that injuries Henry Artis
suffered when he fell into a trench filled with hot condensate liquid
resulted from defendants' negligence. Defendants assert that Henry
Artis voluntarily assumed the risk of injury when he undertook to
pump the liquid from the trench. We hold that this affirmative defense
bars plaintiffs' recovery, so we affirm the judgment of the district
court.

I.

Henry Artis was injured when he fell into a trench full of hot con-
densate liquid. Holman, under subcontract from Bildon, dug the
trench in the course of repairing steam and condensate lines running
between two buildings at the Walter Reed Army Medical Center,
where Artis was employed. The trench filled with liquid when Hol-
man's excavations uncovered a leak in one of the lines. On December
29, 1992, Artis was instructed by his employer to pump out the trench
in order to prevent the hot liquid from overflowing and reaching a
nearby building. In the process of deploying a water pump, Artis fell
into the trench and was burned.

Artis and his wife, residents of Washington, D.C., filed this diver-
sity action in federal district court against Bildon and Holman, both
Virginia corporations. The Artises alleged that Bildon and Holman
negligently allowed the trench to remain filled with condensate liquid
and negligently failed to place barriers around the trench. The district
court granted defendants' motion for summary judgment, finding that
Henry Artis' assumption of risk and contributory negligence barred
recovery. The Artises now appeal.

                    2
II.

Under Maryland law,1 to establish assumption of risk Bildon and
Holman must show that Henry Artis "(1) had knowledge of the risk
of danger, (2) appreciated that risk and (3) voluntarily exposed him-
self to it." Liscombe v. Potomac Edison Co. , 495 A.2d 838, 843 (Md.
1985) (citation omitted). Artis' own admissions reveal that "no genu-
ine issue as to any material fact" remains and provide the evidence
defendants need to make this showing. Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Artis admitted that he was aware the trench was filled with hot liq-
uid. Clearly, then he had knowledge of the risk of danger posed by
falling into the trench.

Artis also appreciated the risk. "[W]hen it is clear that a person of
normal intelligence in the position of the plaintiff must have under-
stood the danger, [this] issue is for the court." Schroyer v. McNeal,
592 A.2d 1119, 1123 (Md. 1991). He knew the liquid in the trench
was hot, and he knew he would be burned if he fell in. The Maryland
Court of Appeals recently characterized "the danger . . . of falling
through unguarded openings" as a risk "which anyone of adult age
must be taken to appreciate." ADM Partnership v. Martin, 702 A.2d
730, 734 (Md. 1997) (citation omitted). Artis argues that he could not
appreciate the risk of falling in this case because there were no barri-
ers marking the edge of the trench. On the contrary, the absence of
any delineation of the trench should have been a red flag to Artis, put-
ting him on notice that he was, literally, not on solid ground.

Finally, we conclude that Artis voluntarily exposed himself to this
danger. The Maryland Court of Appeals considered the"`voluntari-
ness' element of the assumption of risk defense" in Martin, 702 A.2d
_________________________________________________________________
1 Maryland law applies because Henry Artis' accident occurred at the
Walter Reed Army Medical Center, located in Maryland. This case arose
in federal district court in Maryland, so we look to Maryland's choice of
law rules. See Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487,
496 (1941). Maryland courts select the law of the place of the tort to gov-
ern tort actions. E.g., Chambco v. Urban Masonry Corp., 659 A.2d 297,
299 (Md. 1995).

                    3
at 732. That court explained "that, in order for a plaintiff to assume
voluntarily a risk of danger, there must exist `the willingness of the
plaintiff to take an informed chance'; there can be no restriction on
the plaintiff's freedom of choice either by the existing circumstances
or by coercion emanating from the defendant." Id. at 735 (citation
omitted). The plaintiff in Martin claimed that she feared her
employer, and therefore, she would suffer adverse economic conse-
quences if she did not undertake the risky task she was assigned. But
she admitted that nobody ever told her she would be fired, or her
employer would lose money, if she refused to complete the assign-
ment. Id. at 738. In the absence of such communication, the Martin
court found no evidence that plaintiff's acts were not volitional and
held that the voluntariness element of assumption of the risk was sat-
isfied.

Martin thus instructs that unless there is some "evidence to show
that [Artis] was not acting on his own volition or free will, or that his
employment would have been in jeopardy had he refused" to pump
out the trench, his acts will be deemed voluntary. Id. at 737-38. Here
there is no such evidence. In fact, Artis admitted that he was not
forced to pump out the trench and that he did not fear any negative
consequence from refusing to perform this dangerous task:

          Q Is it fair to say, then, that your relationship with your
          supervisor was fairly good?

          A Yes.

          Q Now, when your supervisor called you to go down to
          pump out the pit, you felt free to express to him, at that time,
          any concerns you had about the safety of performing that
          task, didn't you?

          A Yes.

***

          Q At any point, did your supervisor tell you that if you
          didn't pump out this trench, you would be fired?

                     4
          A No, sir.

          Q At any point in time, did your employer ever threaten
          you with disciplinary sanctions if you refused to pump out
          the trench?

          A No, sir.

          Q Did you feel that if you had suggested to your employer
          or your supervisor, safety precautions, perhaps, another type
          of pump, perhaps, any other precautions, that your employer
          would get mad at you and sanction you or fire you?

          A No, sir.

          Q That is not something you feared at all?

          A No.

In the face of the admission that he was not threatened or otherwise
coerced, Artis cannot now dispute that he voluntarily assumed the risk
of the injury that befell him.

III.

For the foregoing reasons, we affirm the judgment of the district
court.2

AFFIRMED
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2 In Maryland, assumption of risk"functions as a complete bar to
recovery because `it is a previous abandonment of the right to complain
if an accident occurs.'" Martin, 702 A.2d at 734 (citation omitted). Thus
we need not address the alternative defense of contributory negligence in
order to affirm the district court's grant of summary judgment to the
defendants.




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