UNPUBLISHED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Reversed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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