                              UNPUBLISHED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Reversed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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