                                       PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                       No. 18-1106


BRANDON BERKENFELD; BARBARA HOLLAND-EYTAN; SANDRA
RICKIE DIAMOND,

            Plaintiffs - Appellants,

v.

GARY R. LENET; MORGAN STANLEY & CO. LLC, a/k/a Morgan Stanley
Smith Barney LLC,

            Defendants - Appellees.


Appeal from the United States District Court for the District of Maryland, at Baltimore.
Paula Xinis, District Judge. (1:16-cv-01227-PX)


Argued: December 12, 2018                                       Decided: April 8, 2019


Before GREGORY, Chief Judge, WYNN and THACKER, Circuit Judges.


Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which
Chief Judge Gregory and Judge Thacker joined.


David E. Fink, LAW OFFICES OF DAVID E. FINK, Baltimore, Maryland, for
Appellants. Gilbert William Boyce, KUTAK ROCK, LLP, Washington, D.C., for
Appellees.
WYNN, Circuit Judge:

      Plaintiffs Brandon Berkenfeld, Sandra Ricki Diamond, and Barbara Holland-Eytan

allege that negligent advice from Defendants—their financial advisor, Gary Lenet, and

his employer, Morgan Stanley & Co., LLC—resulted in less favorable tax distribution

options on their annuities inherited from the estate of Claire Blumberg. The district court

found that Plaintiffs were barred from recovery under Maryland’s contributory

negligence law.    But Maryland has a high bar for taking questions of contributory

negligence from a factfinder and Plaintiffs’ evidence offers a basis for a reasonable

factfinder to determine that they justifiably relied on Defendants’ advice. Accordingly,

we reverse the district court’s grant of summary judgment in favor of Defendants.

                                            I.

                                            A.

       Lenet is a financial advisor and Senior Vice President at Morgan Stanley. Morgan

Stanley—on its website—and Lenet—through his LinkedIn webpage—represent that

Lenet specializes in “estate and trust planning” and was recognized in 2009 as “one of the

Top 1,000 Financial Advisors in the country, one of only twenty advisors chosen in the

state of Maryland.” J.A. 658, 660. Morgan Stanley and Lenet also represent that Lenet

has taught “continuing education requirement courses to external CPAs and Insurance

Agents.” J.A. 658, 660.

      Lenet served as Blumberg’s financial advisor for several years and continued to do

so after Blumberg granted Diamond the Power of Attorney over her financial affairs in

November 2012.      In that capacity—and as Blumberg’s successor trustee—Diamond

                                            2
stated that she communicated with Lenet “almost daily either by e-mail or telephone

regarding various financial issues.” J.A. 641.

       Lenet also had an independent “professional and personal” relationship with each

Plaintiff. Thus, as to Diamond, Lenet provided personal finance advice including, for

instance, advising her on how much to spend in securing a mortgage for her home and

helping her to secure a mortgage. Because of her “almost daily” communications with

Lenet, Diamond “believed that [Lenet]’s financial advice was reliable.”         Id.   As to

Holland-Eytan, Lenet met with her in person and over the phone “periodically for several

years to discuss [her] investments, [her] future in those investments, and how they would

support [her at] retirement.” J.A. 644. “Over time, [Holland-Eytan] became comfortable

relying on the financial opinions of [Lenet],” particularly because of the “care and service

he provided to [Blumberg].” Id. And as to Berkenfeld, Lenet and Berkenfeld exchanged

“regular e-mails, occasional phone calls, and face-to-face meetings several times a year.”

J.A. 643. On occasion, Lenet provided Berkenfeld with stock tips. Berkenfeld stated that

he “felt comfortable relying on . . . Lenet’s advice and opinions regarding financial

matters because he seemed very knowledgeable and had a great company like Morgan

Stanley behind him.” Id.

                                                  B.

       The annuities at issue in this case were issued by Lincoln Financial and

Commonwealth/Scudder to Blumberg. Blumberg designated Plaintiffs, who were her

relatives, as equal beneficiaries of the two annuities.



                                              3
       Soon after Blumberg’s passing in late February 2014, Lenet visited Plaintiffs to

discuss the annuities. According to each Plaintiff, Lenet advised them that the only way

for them to receive their share of the annuities was through a single lump-sum payment.

That advice was consistent with advice Diamond received from Lenet on two prior

occasions. Plaintiffs did not pursue or receive any other advice regarding distribution

options, stating that they trusted and relied on Lenet’s assertion that a single lump-sum

distribution was the only option available.

       In accordance with Lenet’s advice, Plaintiffs completed an election form to

receive their lump-sum distribution. In addition to the lump-sum option that Plaintiffs

selected, the election form identified seven other “Payment Options.”        Immediately

preceding the “Payment Options” section, the form stated that the annuity provider “is

available to address any questions you may have.”          J.A. 533.    A separate “Tax

Withholding Section” of the election form stated: “You may wish to discuss your

withholding election with a qualified tax advisor.” J.A. 537. Berkenfeld testified that he

did not read the election form, and Holland-Eytan testified that she could not recall

whether she read the form. Holland-Eytan stated that, after she signed the election form,

she twice asked Lenet if other distribution options were available, and on each occasion

“Lenet stated that there were no other available disbursement options.” J.A. 644.

       The record includes conflicting materials as to whether Lenet advised Plaintiffs to

consult with a tax advisor before making a distribution decision. Plaintiffs’ original

complaint filed in state court alleged that, “Morgan Stanley advised Plaintiffs that they

may wish to seek tax advice.” J.A. 13. In tension with that allegation, Berkenfeld

                                              4
testified in his deposition that Lenet did not tell him to seek independent tax advice. And

in an affidavit, Holland-Eytan appears to similarly assert that Lenet never advised her to

seek independent tax advice. J.A. 644 (“I trusted [Lenet] as my financial professional

and unless he specifically said I should talk to my CPA regarding the tax consequences of

making different decisions, it is unlikely I would have done so.” (emphasis added)).

       Defendants’ answer denied Plaintiffs’ allegation that “Morgan Stanley advised

Plaintiffs that they may wish to seek tax advice.” But in tension with Defendants’ denial

in their answer, Lenet stated that he “expressly instructed [Plaintiffs] to consult with their

tax advisors before selecting a distribution option.” J.A. 622.

       In sum, both parties’ evidence conflicted with their pleadings on the issue of

whether Plaintiffs were told to seek tax advice. Regardless, in accordance with Lenet’s

alleged advice, each Plaintiff checked boxes on the election form to receive their share of

the annuities in a single lump-sum distribution and to not have federal income tax

withheld from his or her distribution. According to Holland-Eytan, Lenet told her “which

box to check and gave [her] the papers to sign.” J.A. 644

       On June 18, 2015—over a year after electing the lump-sum distribution option—

Berkenfeld sent Lenet an email stating that he had spoken to an accountant who said

Berkenfeld “could have saved almost $100k (in taxes) if we had taken it over [a] long

time or left it in there if needed until I needed it.” J.A. 646. Berkenfeld asked Lenet:

“Did I have an option not to take all of [Blumberg’s] money at once? And if I did why

did we?” Id. Lenet replied:



                                              5
       If any of the monies would have been in an IRA then yes we could have
       deferred over 5 years. All of the annuities were owned by her personally
       (non-qualified) and we couldn’t d[e]fer over a five year period. In the past
       annuities could [have] passed without taxes but that provision was changed
       over ten years ago. My understanding is all individual annuities expire
       when the owner passes away.

Id. Lenet’s message also advised Berkenfeld that Lenet had “found a stock you may like

the story, SPNC.” Id.

       Before making the election, Plaintiffs had worked with other individuals who

provided financial or tax advice. Plaintiffs, however, did not contact either the annuity

issuers or any financial or tax advisor other than Lenet before electing to receive the

proceeds of the annuities through a lump-sum distribution. At the time of the election,

Diamond and Holland-Eytan also owned other annuities, though there is no information

in the record as to whether Diamond or Holland-Eytan ever had taken a distribution of

the proceeds of those annuities.

                                                C.

       On April 25, 2016, Plaintiffs sued Defendants in Maryland state court, alleging

negligence, breach of fiduciary duty, and professional negligence. Thereafter, Morgan

Stanley removed the action to federal court and unsuccessfully moved to dismiss

Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(6).

       Following discovery, Defendants moved for summary judgment. In an order and

accompanying memorandum entered January 4, 2018, the district court granted

Defendants’ motion.     First, the district court concluded that the facts adduced by

Plaintiffs in discovery supported a prima facie case of negligence. Berkenfeld v. Lenet,


                                            6
No. CV PX-16-1227, 2018 WL 287672, at *3–5 (D. Md. Jan. 4, 2018). In particular, the

court concluded Lenet owed Plaintiffs an ordinary duty of care and a professional duty of

care as their financial advisor and therefore was obliged “to exercise the skill and

knowledge normally possessed by members of [his] profession or trade.” Id. at *3

(alterations in original) (quoting Walpert, Smullian & Blumenthal, P.A. v. Katz, 361 Md.

645, 693 (2000)). The court next concluded that Plaintiffs created a triable issue of fact

as to whether Lenet breached that duty, based on Plaintiffs’ testimony that Lenet

erroneously advised them that a lump-sum payment was the only available distribution

option, as well as Lenet’s subsequent email to Berkenfeld, which, the court recognized,

suggested that Lenet, in fact, advised Plaintiffs that a lump-sum payment was the only

option available. Id. at *4. That breach caused Plaintiffs’ undisputed damages because it

was foreseeable that Plaintiffs’ would rely on Lenet’s allegedly errant distribution advice.

Id. at *4–5.

       Nevertheless, the district court awarded summary judgment to Defendants on

grounds that Plaintiffs were contributorily negligent as a matter of law, which, under

Maryland law, is a complete bar to recovery. Id. at *5 (citing Union Mem’l Hosp. v.

Dorsey, 724 A.2d 1272, 1275–76 (Md. App. 1999)). In reaching that conclusion, the

district court emphasized that “two Plaintiffs had years of prior experience with

annuities”; Plaintiffs failed to heed Lenet’s allegedly undisputed suggestion that they

obtain independent tax advice; and “the election forms which Plaintiffs used to select a

lump-sum distribution clearly identify . . . other distribution alternatives.” Id. at *5–6.

Plaintiffs timely appealed.

                                             7
                                           II.

       On appeal, Plaintiffs solely contend that the district court erred by awarding

Defendants summary judgment based on Plaintiffs’ alleged contributory negligence.

Under Rule 56(a), “[t]he court shall grant summary judgment if 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). “We review a district court’s grant of

summary judgment de novo.” Lee v. Town of Seabord, 863 F.3d 323, 327 (4th Cir. 2017)

(citation omitted).

       Under Maryland law, which the parties agree applies in this diversity action,

“[c]ontributory negligence is the neglect of the duty imposed upon all individuals to

observe ordinary care for their 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.” Baltimore Gas & Elec. Co. v. Flippo, 705

A.2d 1144, 1155 (Md. 1998) (alterations omitted) (quoting Campfield v. Crowther, 249

A.2d 168, 172 (Md. 1969)). If proven, Plaintiffs’ contributory negligence operates as a

complete bar to recovery. See Union Mem'l Hosp., 724 A.2d at 1275.

       Maryland courts have recognized that the doctrine of contributory negligence

provides “harsh justice to those who may have acted negligently, in minor ways, to

contribute to their injuries, and absolve those defendants from liability who can find any

minor negligence in the plaintiffs’ behavior.” Coleman v. Soccer Ass'n of Columbia, 69

A.3d 1149, 1156 (Md. 2013); see also Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409

(1953) (noting that contributory negligence “automatically destroys all claims of injured

                                            8
persons who have contributed to their injuries in any degree, however slight”). Thus, the

jurisdictions * that continue to apply contributory negligence employ several doctrines

“designed to mitigate [its] harsh results.”      Coleman, 69 A.3d at 1182 (Harrell, J.,

dissenting) (describing mitigating doctrines); see also, e.g., W. Page Keeton et al.,

Prosser and Keeton on the Law of Torts § 66, at 463–64 (5th ed. 1984) (“No very

satisfactory reason for the [last clear chance] rule [has] ever has been suggested . . . The

real explanation would seem to be a fundamental dislike for the harshness of the

contributory negligence defense.”).

       Of particular relevance, Maryland courts have attempted to mitigate contributory

negligence’s “harsh justice” by “adopt[ing] a very restrictive rule about taking cases from

the jury in negligence actions.” Hill v. Wilson, 760 A.2d 294, 305 (Md. App. 2000)

(cited favorably in Milliman, Inc. v. Md. State Retirement & Pension Sys., 25 A.3d 988,

1013 (Md. 2011)) (citation omitted). Thus, “the issue of contributory negligence is a

question for the jury where there is a conflict of evidence as to material facts relied on to

establish contributory negligence, or more than one inference may be reasonably drawn

therefrom.” Baltimore Gas, 705 A.2d at 1155 (citation and alterations omitted). To

establish contributory negligence as a matter of law—and thus remove the issue of


       *
         “Only four states—Alabama, Maryland, North Carolina, and Virginia—and the
District of Columbia continue to apply contributory negligence in its traditional guise.”
Coleman, 69 A.3d at 1160 (Md. 2013) (Harrell, J., dissenting). Additionally, “virtually
every common law and civil law country, including England, has abandoned the doctrine
of contributory negligence in favor of the doctrine of comparative negligence.” Harrison
v. Montgomery Cty. Bd. of Educ., 456 A.2d 894, 906 (Md. 1983) (Davidson, J.,
dissenting).

                                             9
contributory negligence from the province of the factfinder—“the evidence must show

some prominent and decisive 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.” Id. (emphases added) (citation omitted).

       Maryland courts have underscored the difficulty of demonstrating that there is “no

room for difference of opinion” as to a plaintiff’s contributory negligence such that a

defendant is entitled to summary judgment. In determining whether there is “room for a

difference of opinion,” courts must “give due consideration not only to all inferences of

fact tending to support the opposite view [that the plaintiff was not contributorily

negligent], but also to the important presumption that the plaintiff exercised ordinary care

for his [own] safety.” Hill, 760 A.2d at 305 (alterations omitted) (quoting Saponari v.

CSX Transp., Inc., 727 A.2d 396, 402 (Md. App. 1999) (citing Pachmayr v. Baltimore &

Ohio R.R. Co., 145 A. 611, 613–14 (Md. 1929))). Maryland courts further emphasize

that “even if the act done . . . turns out to be an error of judgment, this alone does not

make the act negligent if an ordinarily prudent person may have made the same error.”

Id. (quoting Faith v. Keefer, 736 A.2d 422, 444 (Md. App. 1999)). Accordingly, this

Court must apply this high bar to determine whether there was “no room for difference of

opinion” as to whether Plaintiffs were contributorily negligent in electing to rely on

Lenet’s advice and receive the proceeds of the annuity in a single lump-sum

distribution—the question to which we now turn.

       In Wegad v. Howard Street Jewelers, Inc., the Maryland Court of Appeals

addressed under what circumstances a plaintiff can be found contributorily negligent for

                                            10
relying on the (allegedly errant) advice or services of a professional. See 605 A.2d 123

(Md. 1992). In that case, a plaintiff-jeweler sued a defendant-accountant for “his failure

to detect that the jewelry store’s cashier was embezzling funds.” Id. at 125. Below, the

trial court had denied the jeweler’s request to provide the following contributory

negligence instruction:

       The client can rely on the accountant’s knowledge and skill. It is not
       contributory negligence for a client to follow an accountant’s instructions,
       or rely on his advice, or to fail to consult with another accountant or to
       discover the source of a financial problem itself where the client has no
       reason to suspect his accountant’s advice and instructions are wrong.

Id. at 125. The Court of Appeals held that the trial court did not err in refusing to provide

the jeweler’s requested instruction. According to the court, the proposed instruction

“might be read to allow a client to rely on an accountant’s advice and disregard any

responsibility to use reasonable measures for self-protection.” Id. at 129. A “client,

however, should not be permitted an absolute and unqualified right to rely on the

accountant’s advice and thereby be completely insulated from responsibility for his or her

own shortcomings.” Id. at 128.

       The Court of Appeals further held that, in a professional negligence case, “a

proper jury instruction should explain that a client’s reasonable or justifiable reliance on

his or her accountant satisfies its obligation to exercise reasonable care in safeguarding its

interests.” Id. (emphases in original). Reliance on professional advice “can be said to

have been ‘reasonable’ or ‘justified’ only if a person acting with reasonable prudence and

caution would have relied on the representations and would have done no more to protect

[himself or her]self.”    Id. Examples of factors bearing on the reasonableness of a

                                             11
plaintiff’s reliance on professional advice include: (1) “[t]he scope of the [professional’s]

undertaking”—i.e., whether the professional was engaged to advise the client regarding

the risk at issue; (2) “[t]he disparity of knowledge and skill as possessed by a layperson

and a[ professional]” as to the matter in question; and (3) whether the client or the

professional was in a better position to identify and appreciate the risk. Id. at 128–29.

       Applying those factors to the case before it, the Court of Appeals found that there

was an adequate factual basis for a jury to find that the jeweler was contributorily

negligent. The court noted that the accountant advised the jeweler of cash shortages and

the possibility that someone was stealing, but that the jeweler nevertheless “did nothing

to monitor [the cashier’s] activity in the store.” Id. at 130. And the court further

emphasized that the jeweler supervised the cashier on a day-to-day basis and therefore

was in at least as good a position as the accountant to identify the cashier’s theft. Id.; see

also Milliman, 25 A.3d at 1013 (noting that, in Wegad, “the jewelry store owners were

uniquely situated to uncover their employee’s embezzling”).

       Unlike the present case, in which we must determine whether the district court

properly awarded summary judgment, Wegad analyzed the question of contributory

negligence in a professional negligence case after trial. Applying the review standard

applicable at summary judgment, we must determine whether there was “no room for

difference of opinion,” Hill, 760 A.2d at 305, as to whether a “person acting with

reasonable prudence and caution would have relied on [Lenet’s] representations and

would have done no more to protect [him or her]self.” See Wegad, 605 A.2d at 128–29.

Giving the requisite “due consideration . . . to all inferences of fact tending to support

                                             12
the” absence of contributory negligence and applying “the important presumption that

[Plaintiffs] exercised ordinary care for [their own] safety,” Hill, 760 A.2d at 305

(citations and internal quotations omitted), we hold that there is “room for difference of

opinion” as to whether Plaintiffs reasonably relied on Lenet’s advice.

       Construing the evidence in the light most favorable to Plaintiffs, Morgan Stanley

and Lenet represented to the public, and therefore to Plaintiffs, that Lenet was a top-tier

financial advisor who specializes in estate and trust planning. The record also provides a

factfinder with a basis to find that Plaintiffs reasonably believed that Lenet was, or at

least should have been, intimately familiar with Blumberg’s estate—and the two

annuities, in particular—because he had served as Blumberg’s personal financial advisor

for several years prior to her death and had discussed the annuities at length with

Diamond. Additionally, Plaintiffs’ evidence established that each Plaintiff formed an

independent professional relationship with Lenet and relied upon Lenet for advice on

financial matters, and that Lenet actively sought to provide such advice, perhaps to

advance his professional interests.

       We believe that there is “room for difference of opinion” as to whether, in such

circumstances, a reasonably prudent person would rely upon Lenet’s alleged advice that

the only available distribution option was a single lump-sum payment. A reasonable

factfinder could find that a reasonable person in Plaintiffs’ position would justifiably

believe that a person with Lenet’s claimed experience and expertise, and familiarity with

the particular financial product at issue, would know the options available for distribution

of the proceeds of an annuity upon the death of the owner of the annuity. That Lenet

                                            13
subsequently advised Berkenfeld (apparently incorrectly) as to whether other distribution

options were available provides further evidence that this was the type of expertise Lenet

held himself out as providing.

       There also is “room for difference of opinion” as to whether a reasonable person in

Plaintiffs’ position would rely on Lenet’s advice as to the available distribution options,

without reviewing the language in the distribution or consulting with another financial

advisor. See Wegad, 605 A.2d at 128–29 (holding that the “[t]he disparity of knowledge

and skill as possessed by a layperson and a[ professional]” bears upon the reasonableness

of plaintiff’s reliance). A reasonable factfinder could find that Plaintiffs justifiably did

not pursue other information or advice as to their distribution options because they had

already obtained the advice of a professional with expertise in the area. Put simply, just

as a reasonable factfinder could find that a client who has been advised by a lawyer as to

a particular legal issue is not contributorily negligent by failing to seek the advice of a

second lawyer or by failing to read case law himself, so too a reasonable factfinder could

find that Plaintiffs acted reasonably in failing to seek a second opinion and in failing to

conduct independent research as to their distribution options.

       The district court nevertheless believed there was “no room for difference of

opinion” as to Plaintiffs’ contributory negligence because Diamond and Holland-Eytan

had “years of prior experience with annuities,” forms for some of which identified several

distributions. See Berkenfeld, 2018 WL 287672, at *5. But there is no evidence that

Diamond’s and Holland-Eytan’s years of annuity “experience” included making an

election regarding the distribution of annuity proceeds—the relevant question here. And

                                            14
a reasonable factfinder could find that a reasonable layperson might rely on a

professional to understand the fine print in the annuity documentation, rather than make

sense of it himself or herself.

         The district court also determined that Plaintiffs were contributorily negligent as a

matter of law because it is undisputed that the election forms for the Lincoln Financial

and Commonwealth/Scudder annuities identified more than one distribution option and,

in one section, suggested that individuals consult with a tax advisor. Given that the forms

at issue were lengthy and that there is a significant “disparity of knowledge and skill”

between a layperson and a financial planner, like Lenet, Wegan, 605 A.2d at 128–29, a

factfinder could determine that Plaintiffs were not contributorily negligent in relying on

Lenet’s advice rather than reading the fine print of the annuity contracts and election

forms.     Additionally, the election forms’ reference to consulting with a tax advisor

appeared in the tax withholding section of the form, as opposed to section of the form

listing distribution options, providing a basis for a factfinder to conclude that Plaintiffs

were not contributorily negligent in not pursuing a second opinion as to their distribution

options. That Maryland law permits a jury to find that a plaintiff was not contributorily

negligent, even if the plaintiff takes an action that “turns out to be an error of judgment,”

Hill, 760 A.2d at 305, supports such a finding. Although in retrospect it may have been

wise for Plaintiffs to independently review the election forms, rather than just relying on

Lenet’s advice, there is “room for difference of opinion” as to whether Plaintiffs’ failure

to do so does amounts to contributory negligence given Lenet’s greater expertise in

financial matters and the Plaintiffs’ belief in that expertise. This precludes an award of

                                              15
summary judgment.       See Milliman, 25 A.3d at 1013 (holding the plaintiff was not

contributorily negligent when the “[defendant], rather than [the plaintiff], was the entity

that was in the better position to detect and correct the” error).

       Finally, the district court found Plaintiffs were contributorily negligent because

Plaintiffs did not consult with tax advisors before making their distribution election,

“despite Lenet expressly telling Plaintiffs to obtain independent tax advice.” Berkenfeld,

2018 WL 287672, at *5. Setting aside the fact that both parties contradicted their

pleadings as to whether such advice was provided, Lenet’s alleged negligence is not that

he provided errant tax advice. Rather, his alleged negligence is that he errantly advised

Plaintiffs that there was only one annuity distribution option—a matter which a

reasonably prudent person might believe falls within the purview of a financial advisor

rather than a tax advisor. See Wegad, 605 A.2d at 128 (holding that the “scope of the

[professional’s] undertaking” bears upon the reasonableness of plaintiff’s reliance). A

person in Plaintiffs’ position could reasonably have believed that there was no need to

consult with a tax advisor regarding the tax implications of various distribution options

when they had been advised by a financial advisor that only a single distribution option

was available. Put differently, regardless of whether Lenet advised Plaintiffs to seek

additional tax advice, there is “room for difference of opinion” as to whether Plaintiffs

reasonably failed to do so when they were advised by a top-tier financial advisor that

there was only one distribution option available—whatever the tax implications of that

option might be. And even if a prudent person in Plaintiffs’ position would have pursued

expert tax advice, a reasonable person in their position may have believed Lenet could

                                              16
provide such advice because Morgan Stanley and Lenet represented that Lenet had tax

expertise, stating on their website that Lenet taught “continuing education requirement

courses to external CPAs.” J.A. 658, 660.

       In sum, none of the considerations that the district court relied upon meet the high

bar applied by Maryland courts for taking questions of contributory negligence from the

factfinder. Instead, a factfinder could determine that Plaintiffs reasonably relied upon the

representations of their top-tier financial accountant who managed the specific financial

products in question. Although Plaintiffs’ actions may amount to an “error of judgment,

this alone does not make [their actions] negligent.” Hill, 760 A.2d at 305. Accordingly,

the district court erred in awarding Defendants summary judgment based on Plaintiffs’

alleged contributory negligence.

                                            III.

       Defendants contend that Plaintiffs’ assumption of risk provides an alternative basis

for affirming the district court’s grant of summary judgment—an issue Defendants raised

before the district court, but which the district court did not reach. See Berkenfeld, 2018

WL 287672, at *2 n.2. Because we “may affirm the dismissal by the district court on the

basis of any ground supported by the record[,] even if it is not the basis relied upon by the

district court,” Andrew v. Daw, 201 F.3d 521, 526 n.3 (4th Cir. 2000), we exercise our

discretion to consider whether to affirm the district court’s judgment on the alternative

basis of assumption of risk.

       The doctrines of “[a]ssumption of the risk and contributory negligence are closely

related and often overlapping defenses.” Schroyer v. McNeal, 592 A.2d 1119, 1121 (Md.

                                             17
1991). Assumption of risk 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). To “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). And if proven, Plaintiffs’ assumption of risk operates as a complete bar

to recovery. Id.

       The “test of whether [a] plaintiff knows of, and appreciates, the risk involved in a

particular situation is an objective one.” Schroyer, 592 A.2d at 1123. And as with

contributory negligence, the “question of whether a plaintiff knew and understood the

risk in a case is generally one for the trier of fact.” Crews, 751 A.2d at 490. However,

Maryland courts will find assumption of risk as a matter of law “if a person of normal

intelligence, in the same position as the plaintiff, would clearly have comprehended the

danger.” Crews, 751 A.2d at 490 (emphasis added); see also Schroyer, 592 A.2d at 1123

(“[T]he doctrine of assumption of risk will not be applied unless the undisputed evidence

and all permissible inferences therefrom clearly establish that the risk of danger was fully

known to and understood by the plaintiff.” (emphases in original) (citation omitted)).

       To prove Plaintiffs’ assumption of risk, Defendants rely upon the same factual

allegations underlying Plaintiffs’ purported contributory negligence.          Specifically,

Defendants contend that Plaintiffs had prior experience with financial instruments and

signed annuity statements that listed other disbursement options and that stated “[y]ou

                                            18
may want to discuss your [tax] withholding election with a qualified tax advisor.” J.A.

679. But construing the evidence in the light most favorable to Plaintiffs, Plaintiffs relied

upon Lenet’s professional financial representations and thus believed there was “only one

option available to them—that of a lump-sum disbursement.” J.A. 632 (emphasis added).

On these facts, it is not clear that person of normal intelligence would know and

understand a financial danger that was specifically disclaimed by a top-tier financial

advisor. See supra Part II. Whether Plaintiffs had full knowledge that other distribution

options existed beyond the lump-sum distribution is accordingly a factual dispute for the

factfinder to resolve. See Kahlenberg v. Goldstein, 431 A.2d 76, 87 (Md. 1981) (“The

differences in the Plaintiff’s characterization” of the evidence and that of others “create[s]

a factual question for the [factfinder] to resolve on the issue of the Plaintiff’s assumption

of the risk.”); Kasten Const. Co. v. Evans, 273 A.2d 90, 94–95 (Md. 1971) (holding that

“submission of the issue [of assumption of risk] to the jury was not error” where “the

evidence is not clear and undisputed”).

                                             IV.

       In sum, because there was “room for difference of opinion” as to whether

Plaintiffs were contributorily negligent, the district court improperly granted Defendants’

motion for summary judgment. Therefore, we reverse the district court’s judgment and

remand the case for further proceedings consistent with this opinion.

                                                            REVERSED AND REMANDED




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