Appellate Decisions (Continued from page 49)
not have assumed the risk voluntarily be- cause, even if he had used the “cages” provided by defendant, the latter were not OSHA compliant.
Held: Reversed. (1) The trial court could not consider the unsworn statement of Williams, absent an affidavit asserting his personal knowledge of the facts contained therein, or some other demonstration of the admissibility through him at trial of testimony as to those facts. Despite de- fendants’ claim that the facts contained in the unsworn statement would be ad- missible at trial, these facts would not ordinarily be admissible at trial if pre- sented in the form of the statement. Merely because Rule 2-501 (a) requires an affidavit if a motion for summary judg- ment is filed before the day on which the adverse party’s initial pleading or motion is filed, it does not follow that no affida- vit is required after this period of time. Also, the fact that the unsworn statement was attached to defendants’ answers to interrogatories does not render that state- ment part of the record, see Rule 2-401 (d) (2), or convert the hearsay statement into evidence that would be admissible at trial. Finally, the fact that the unsworn statement was shown to Farmer and Swift at their deposition, without objection, does not cure the defect of the lack of an affidavit for Williams’s statement because that defect is unrelated to the use of the statement to examine these deponents, and because Imbraguglio’s survivor’s coun- sel was not required to object under Rule 2-451 (g). (2) The trial court properly considered
Kidd’s testimony, given at the prior Work- ers’ Compensation hearing, despite the lack of an affidavit re-presenting the sub- stance of this testimony.
The
requirements for admitting such a tran- script at trial—that the deponent be unavailable and that the examiner have had an opportunity and similar motive to develop the deponent’s testimony—do not apply to the summary judgment con- text, at least when the party objecting to the use of this testimony was also a party to the prior proceeding. Just as an affida- vit is not ordinarily admissible at trial, but sufficient at the summary judgment stage to indicated the facts to which the affiant would testify at trial if called as a witness, so too with a transcript of former testi- mony because the latter possesses the same indicia of reliability as an affidavit. (3) Substantively, Imbraguglio could not be said to have assumed the risk of
50 Trial Reporter
his injury as a matter of law. This affir- mative defense to a negligence action requires a defendant to show that (1) the plaintiff had knowledge of the risk of the danger; (2) appreciated the risk; and (3) voluntarily confronted the risk of danger. The fact that the “cages” provided by de- fendant were not OSHA complaint does not render Imbraguglio’s decision to have himself elevated by an unmodified pallet involuntary. See Brady v. Parsons Co., 327 Md. 275, 289-90, 294, 609 A.2d 297, 304, 306 (1992). It does not fol- low, however, that Imbraguglio knew and appreciated the risk of falling from a pal- let, elevated between six and seven feet above the ground, due to a shift in the content of the bin where he was working. In previous cases involving falls from heights indicate that a plaintiff does not assume the risk, at least as a matter of law, merely by working at a height, because while that plaintiff is deemed as a matter of law to know of the danger of falling, he or she also must appreciate the risk of the specific occurrence that actually caused the fall and the nature and magni- tude of the potential injury that could result.
Defendants in this case failed to pro- duce evidence as to whether a shift in the contents of a bin, while a worker is re- trieving dropped cartons, is an expected or unexpected occurrence. The properly constituted record before the trial court was such that a trier of fact could infer that this risk would appear negligible to a worker in Imbraguglio’s position. With respect to the potential injury, under OSHA regulations, railings or other guardrails are not required until a plat- form is elevated at least ten feet above the ground. For all these reasons, a trier of fact might or might not find that a worker in Imbraguglio’s position, by choosing an unguarded pallet on which to work, so appreciated the risk of falling, or of being caused to fall, from a height of six to seven feet, that he worker in effect consented to relieve the defendants of any alleged obli- gation for the worker’s safety. Because a trier of fact could so find, the trial court erred in granting summary judgment.
Ethel Imbraguglio et al. v. Great Atlantic & Pacific Tea Company, Inc. et al., No. 80, September Term, 1999, filed March 10, 2000. Opinion by Rodowsky, J.
Summer 2000
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