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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1041 SEPTEM BER TERM, 2008

E. DARIS WARSHAM v. JAMES MUSCATELLO, INC.

Hollander, Matricciani, Kenney, James A., III (Retired, Specially Assigned) JJ.

Opinion by Hollander, J.

Filed: December 30, 2009

This "slip and fall" case arises from an incident that occurred on March 9, 2005, when E. Daris Warsham, appellant, fell as he attempted to salt an icy area on the property of James L. Muscatello, Inc., appellee, his employer's landlord. Appellant subsequently filed a negligence suit against the landlord on April 27, 2007, to recover for injuries he sustained in the fall.1 The Circuit Court for M ontgomery County granted the landlord's motion for summary judgment on May 21, 2008, ruling that the suit was barred by the doctrines of contributory negligence and assumption of the risk. This appeal followed. Appellant presents one issue, which we quote: Whether a plaintiff is contributorily negligent or assumes the risk as a matter of law where the plaintiff falls on ice, negligently left by the defendant, while in the process of remedying the icy condition by salting it[.] For the reasons set forth below, we shall affirm. FACTUAL AND PROCEDURAL BACKGROUND2 At the relevant time, appellant was employed by Master's, Inc.3 ("Master's"), located
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Appellant's spouse, Kristi Warsham, initially was a co-plaintiff, claiming loss of consortium. Her claim was voluntarily dismissed. Our factual summary is derived largely from information presented to the court in connection with the summary judgment motion, such as depositions and other discovery material. The parties did not submit the deposition of James Muscatello, although an excerpt of his deposition is included in appellant's reply brief. On information and belief, Mr. Muscatello was the owner of James L. Muscatello, Inc. Appellant's answers and supplemental answers to interrogatories state that appellant was employed by "Master's, Inc." Neither the record nor the briefs indicate the nature of Master's business. In his answers to interrogatories, appellant described his job, as follows: [Appellant] was the Fire Protection W arehouse Manager and Purchasing Manager. [Appellant] was responsible for keeping thte [sic] inventory stocked (continued...)
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at 7901 Beechcraft Avenue, #A, in Gaithersburg (the "Property"). The Property, located in a warehouse type building, was leased by Master's from James L. Muscatello, Inc. (the "Company" or the "landlord"). Master's and the Company shared use of the parking lot. On March 9, 2005, appellant arrived at work between 6:00 a.m. and 6:30 a.m. The weather was cold, but there was no precipitation, nor had there been any on the previous day. According to appellant, mornings are the busiest time at work, because of deliveries and because Master's contractors set up their equipment "for the day."4 However, appellant claimed that some of M aster's field technicians were told by their supervisor that they should not report to work until after 10:00 a.m., apparently due to concern about the weather. 5 Upon his arrival at work, appellant "was able to clearly see a large icy area" on the parking lot, which he described as a "fishing pond" located "[i]n front of [his] bay door . . . ." He explained that there was an ongoing problem of "standing water" accumulating outside

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(...continued) and to be able to provide field employees' [sic] with material to complete jobs. [He] was also in charge of the accounts and work with vendors on pricing and supply. [He] set up deliveries to various job sites as well as getting the left over material re-stocked.
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At his deposition, Mr. Muscatello estimated that approximately 100 people walk in and out of appellee's office building on a typical work day. Appellant stated that Tim Beck, one of Master's supervisors, "told the field techs, as far as my knowledge, to not come in until after 10:00

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