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Assumption of risk for road worker injured by passing motorist a jury question.

Meyers v. Lamer
--- F.3d--- (2014) (not yet published)

by Gregory Emrick, Associate
Semmes, Bowen & Semmes (

Plaintiff, a utility worker, had raised his bucket of this truck to work on overhead wires located at an intersection. Though Plaintiff and his co-worker had set out cones and signs on the roadway to indicate the upcoming utility work, the lane under Plaintiff’s bucket remained open for traffic. Plaintiff asked his co-worker to watch for oncoming traffic, and then turned to work on the utility wires. Defendant, Lamer, was operating a tractor-trailer truck and was talking on his cell phone, causing him to miss the caution signs. Though Defendant saw the bucket truck in front of him, he believed he had sufficient clearance to pass underneath. As Defendant passed the bucket, however, the top of Defendant’s trailer struck the Plaintiff’s bucket and ejected him. Plaintiff was saved from severe injuries by his safety harness, but suffered injuries to his back and lower body.

Plaintiff filed suit against Defendant alleging he was negligent in the operation of his truck. Following discovery, both parties moved for summary judgment. The Court denied Plaintiff’s motion and granted Defendant’s motion for summary judgment, concluding for both that Plaintiff had assumed the risk of being struck under the circumstances, and was also contributorily negligent. Plaintiff timely filed an appeal.

The Fourth Circuit Court of Appeals first addressed the finding of assumption of the risk. The Court noted that the trial court and Defendant had relied upon Maryland’s holding in the case of Clayborne v. Mueller, 284 A.2d 24, (Md.Ct.Spec.App. 1971) (Clayborne I) aff’d 291 A.2d 443 (Md. 1972) (Clayborne II), in which the Maryland Court’s had carved out an exception to the assumption of the risk doctrine for workers in the street harmed by passing motorists. Assumption of the risk “is not applicable to those person such as workers in the street, traffic directors or police officers exercising traffic control and regulation enforcement if they are in the course of the normal pursuit of their duties.” Id. at 28-29. The Fourth Circuit disposed of the Defendant’s argument that the Plaintiff had waived his right to appeal the assumption of risk finding as he had only addressed the merits of the defense, (i.e whether Meyers assumed a risk) holding it was the fundamental province of the Court to decide cases correctly, and could raise the issue sua sponte. The Court also rejected Defendant’s argument that Clayborne II had abrogated the central holding of Clayborne I and cases thereafter had limited this exception to instances where Plaintiff was engaged in a dangerous profession.

The Court then reviewed the trial court’s holding finding Plaintiff contributorily negligent. Defendant argued that the Plaintiff had the non-delegable responsibility to watch for traffic, and was contributorily negligent for relying upon his co-worker to provide him with advance notice. The Court found this issue was a jury issue, stating “the question to be resolved, however, is not whether Meyers could have done more to protect himself, but rather whether an ‘ordinarily prudent person under the same circumstances’ would have turned his back to continue working, as Meyers did.” As Plaintiff and his coworker had worked together for years utilizing the same procedures without incident, Plaintiff was entitled to rely upon his coworker to provide fair warning. Hence, summary judgment on contributory negligence was inappropriate. The Court vacated the holdings of the trial court and remanded the case for trial.