UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANITA RENEE WILLIAMS,
Plaintiff-Appellant,

v.

CLOVERLEAF ENTERPRISES,
INCORPORATED,
                                                               No. 99-1106
Defendant-Appellee,

and

UNITED STATES OF AMERICA; DAWN
GIBBS,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-97-2476-PJM)

Submitted: December 29, 1999

Decided: February 7, 2000

Before MURNAGHAN and NIEMEYER, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Jeffrey Fenster, ZAKROFF & ASSOCIATES, P.C., Bethesda, Mary-
land, for Appellant. Gerald W. Ueckermann, Jr., O'MALLEY,
MILES, NYLEN & GILMORE, P.A., Calverton, Maryland, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

A violent confrontation between two women in one of the parking
lots of Rosecroft Raceway in Fort Washington, Maryland resulted in
this civil suit, filed not only against the instigator of the altercation,
but also against the owner of the Raceway. In support of her suit,
Anita Renee Williams alleged that employees of Cloverleaf Enter-
prises stood idly by while Dawn Gibbs attacked her in three separate
assaults. Over a span of ten to fifteen minutes, Gibbs assailed Wil-
liams first with a ten-pound dumbbell, then with her fists and feet, and
finally with a steak knife. The final attack resulted in a deep cut along
Williams's right upper arm.

After discovery, the district court heard argument on Cloverleaf
Enterprises' motion for summary judgment. The district court found
that Cloverleaf had not breached any duty that it owed to Williams
through its employees. The court further found that Williams accepted
any risk of injury after Gibbs's first assault by virtue of Williams's
failure to leave the scene of the incident. On these findings, the dis-
trict court concluded that Cloverleaf Enterprises was entitled to sum-
mary judgment and entered a final order dismissing the case in favor
of Cloverleaf. Because we are convinced that Williams raised signifi-
cant issues of material fact with respect to Cloverleaf's duty to her
and her own assumption of the risk, we vacate the district court's
order and remand for further proceedings.

In considering this appeal, we apply the familiar standards for
review of the grant of summary judgment motions. This court reviews

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the district court's order granting summary judgment to Cloverleaf
Enterprises de novo. See E.J. Sebastian Assocs. v. Resolution Trust
Corp., 43 F.3d 106, 108 (4th Cir. 1994). In doing so, we adhere to the
same standard as the district court, namely, summary judgment is
appropriate where there is no genuine dispute as to a material fact.
See Miller v. FDIC, 906 F.2d 972, 973-74 (4th Cir. 1990); Fed. R.
Civ. P. 56(c). We must view any permissible inferences to be drawn
from the underlying facts in the light most favorable to the non-
moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). However, Cloverleaf Enterprises would be
entitled to summary judgment if Williams failed to make a sufficient
showing on any essential element of the case with respect to which
Williams bore the burden of proof. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).

The district court concluded that Williams failed to show that she
requested assistance from Cloverleaf's employees during her confron-
tation with Gibbs. The court determined that this was a necessary ele-
ment of Williams's case against Cloverleaf based on the Maryland
Court of Appeals decision in Southland Corporation v. Griffith, 633
A.2d 84 (Md. Ct. App. 1993).1 In that case, the plaintiff attempted to
establish that Southland Corporation breached its duty of reasonable
care when its employee allegedly refused to summon aid for a patron
who was being assaulted. The plaintiff alleged that the employee
refused this simple assistance despite being asked three times to con-
tact the police. The Maryland court resolved the case by embracing
the suggestion of the Restatement (Second) of Torts§ 314A and
imposing a duty on the business to aid its imperiled invitee when the
business's employee has knowledge of the invitee's danger and the
aid would not place the employee in the path of danger. Southland
Corp., 633 A.2d at 91; see also id. at 91 n.8 (adopting the commen-
tary to § 314A to "further clarify the rule"). In Maryland, the trigger-
_________________________________________________________________

1 Because the source of the district court's jurisdiction over this state
law tort action was the parties' diversity of citizenship, see 28 U.S.C.
§ 1332 (1994), the rule of Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938),
requires the application of the law of Maryland, the forum state. The par-
ties agree that the opinion in Southland Corporation should govern this
case.

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ing event for a business's duty to aid an imperiled invitee is the
employee's knowledge of the injured invitee. See id. at 91.

The facts alleged in Southland Corporation dictated the conclusion
in that case that the time the employee knew or should have known
of the plaintiff's peril was the exact moment that the plaintiff
requested aid from the employee. See id. at 86. Consequently, the lan-
guage seized on by the district court in its order, and Cloverleaf in
prosecuting this appeal, represented the application of the law to the
facts of the Southland Corporation case. Employing this language,
rather than the rule of the Restatement as adopted by the opinion,
imposed an additional prerequisite to the creation of a duty to an
imperiled business invitee that neither the Restatement nor the Mary-
land court contemplated.

Consequently, the district court granted summary judgment in
favor of Cloverleaf because Williams failed to do something that she
was not required to do under Maryland law. Although the district
court correctly found that Cloverleaf's employees would have been
placing themselves in the path of danger by physically intervening
and thus were not required to do so, we hold that Williams's case
must be allowed to proceed on the theory that Cloverleaf's employees
breached their duty of care to her by failing to summon assistance
once they knew or should have known that she was imperiled by
Gibbs' attack.2

The district court also found that, even assuming negligence on the
part of Cloverleaf Enterprises, Williams "assumed any risk that
ensued following the first [assault]," and was therefore unable to
recover damages. See Schroyer v. McNeal, 592 A.2d 1119, 1122-23
(Md. 1991). "In Maryland, it is well settled that in order 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
Partnership v. Martin, 702 A.2d 730, 734 (Md. 1997). "`In determin-
_________________________________________________________________
2 We express no opinion regarding the likelihood of success on this the-
ory of the case. We hold only that Williams has alleged sufficient facts
to survive summary judgment regarding whether Cloverleaf employees
knew or should have known that she was in danger.

                     4
ing whether a plaintiff had knowledge and appreciation of the risk, an
objective standard must be applied and a plaintiff will not be heard
to say that he did not comprehend a risk which must have been obvi-
ous to him.'" Id. (quoting Gibson v. Beaver, 226 A.2d 273, 275 (Md.
1967)). Ordinarily, whether a plaintiff has assumed a risk is a ques-
tion for the trier of fact. See Chalmers v. Willis, 231 A.2d 70, 73 (Md.
1967). "On the other hand, when it is clear that a person of normal
intelligence in the position of the plaintiff must have understood the
danger, the issue is for the court." Schroyer , 592 A.2d at 1123.

It is clear that by remaining where Gibbs could continue to assault
her, Williams acknowledged the possibility that Gibbs would con-
tinue to do just that. However, Williams's assumptions regarding Clo-
verleaf's potential breach of its duty to her are less clear. For instance,
it could be argued that Williams did not know of the danger of this
potential breach because she could not have been aware of the risk
that Cloverleaf employees who were present would fail to call for
assistance. In that case, Williams could not have assumed the risk and
would not be barred from recovery. In contrast, Cloverleaf could con-
tend that Williams knew of the danger inherent in continuing her fight
with Gibbs despite the risk that no one would help her because she
was not specifically aware that there were any Cloverleaf employees
present. If that were true, Williams might have assumed the risk that
Cloverleaf would breach its duty to her. In light of Maryland law's
preference that the question of assumption of the risk be left to the
jury, we must conclude that it was error for the district court to
resolve the issue on summary judgment. See Chalmers, 231 A.2d at
73.

We therefore vacate the district court's order granting summary
judgment in favor of Cloverleaf and remand for further proceedings
consistent with this opinion. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

VACATED AND REMANDED

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