UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BETTY J. LITTLE; LAURENCE LITTLE,
Plaintiffs-Appellants,

v.
                                                                    No. 98-1835
UNITED STATES OF AMERICA;
ARCHITECTURAL PRECAST,
INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Daniel E. Klein, Jr., Chief Magistrate Judge.
(CA-94-2824-L)

Argued: April 9, 1999

Decided: June 11, 1999

Before MURNAGHAN, WILKINS, and NIEMEYER,
Circuit Judges.

_________________________________________________________________

Affirmed in part and reversed and remanded in part by unpublished
per curiam opinion. Judge Niemeyer wrote an opinion concurring in
part in the judgment and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: Harold Jeffrey Tabb, Greenbelt, Maryland, for Appel-
lants. Margaret Fonshell Ward, SEMMES, BOWEN & SEMMES,
Towson, Maryland, for Appellee Architectural Precast; George Levi
Russell, III, Assistant United States Attorney, Baltimore, Maryland,
for Appellee United States. ON BRIEF: Howard E. Goldman, Balti-
more, Maryland, for Appellants. Ami C. Dwyer, SEMMES, BOWEN
& SEMMES, Towson, Maryland, for Appellee Architectural Precast.
Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for
Appellee United States.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Betty Little was injured while sitting at one of the con-
crete tables in an outdoor cafe area of a building operated by the
Nuclear Regulatory Commission ("NRC"), a federal agency. The evi-
dence is unclear as to how the accident happened, but either the con-
crete bench snapped off from the leg, or the concrete leg gave way,
allowing the bench and the leg to topple forward. 1 In the months pre-
ceding the accident, concrete at the base of the legs of several of the
outdoor tables at the cafe had begun to splay, making these tables
dangerous. As an employee at the cafe, Little had personally observed
this gradual decay in several of the tables and was aware of the dan-
ger they represented. Some time after the accident, Little brought neg-
ligence suits against the United States of America under the Federal
Torts Claim Act, 28 U.S.C.A. § 1346(b) (West 1993 & Supp. 1999),
§ 2671, et seq. (West 1994), and Architectural Precast, Inc., the man-
ufacturer of the tables. Little also sued Architectural Precast under
breach of warranty and strict products liability theories. The United
_________________________________________________________________
1 At oral argument, the United States presented another theory to
explain the accident -- that Little just missed the bench. Besides the fact
that no record evidence directly supports this theory, in resolving the
Defendants' summary judgment motions we must make all inferences in
favor of Little.

                    2
States successfully secured summary judgment because either (1) Lit-
tle did not show that it had received notice of the defective aspects
of the tables that caused the plaintiff's injuries, or (2) Little engaged
in contributory negligence. Architectural Precast successfully secured
summary judgment because, (1) for the breach of warranty and negli-
gence theories, Little engaged in contributory negligence, and (2) for
the products liability theory, Little did not prove the existence of a
specific defect causing her injuries. We affirm the grant of summary
judgment on the negligence claim against the United States, but
reverse on the claims against Architectural Precast.

I.

We review a grant of summary judgment de novo , using the same
standard used by the district court below. Higgins v. E.I. DuPont De
Nemours & Co., 

, 1167 (4th Cir. 1988). A motion for
summary judgment is granted if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56.

Under the Federal Tort Claims Act, the law of the place where the
act or omission occurred establishes the substantive duties of the
United States. See Robb v. United States, 

, 887 (4th Cir.
1996); 28 U.S.C.A. § 1346(b)(1). Similarly, Maryland courts apply
the principle lex loci delicti. Ward v. Nationwide Mut. Auto. Ins. Co.,

, 86 & n.2, 91 n.8 (Md. 1992). All relevant acts or omis-
sions in the case at bar occurred in Maryland. We therefore apply
Maryland law to all of Little's claims.

II.

The district court held that summary judgment should be granted
in favor of the United States because either (1) Little did not show
that it had received notice of the defective aspects of the bench and
table which occasioned the plaintiff's injuries, or (2) Little engaged
in contributory negligence. We agree with the district court.

Under Maryland law a plaintiff in a negligence action must prove:
(1) that the defendant had a duty to protect the plaintiff from injury;

                     3
(2) that the defendant breached that duty; (3) that the plaintiff suffered
an injury; and (4) that the injury proximately resulted from the defen-
dant's breach of duty. Bobo v. State, 

, 1375 (Md.
1997).

Treating Little as an invitee on the United States' land,2 the district
court reasoned that the United States owed a "duty to exercise reason-
able care to `protect the invitee from injury caused by an unreason-
able risk' that the invitee would be unlikely to perceive in the exercise
of ordinary care for his or her own safety, and about which the owner
knows or could have discovered in the exercise of reasonable care."
Tennant v. Shoppers Food Warehouse Md. Corp., 

, 374
(Md. App. 1997) (emphasis added) (quoting Casper v. Charles F.
Smith & Son, Inc., 

, 1135 (Md. 1989)). Therefore, in
order for there to have been a breach of duty, Little must show that
the United States had notice or should have had notice that the table
causing Little's injury was defective. See Bauman v. Woodfield, 

, 368 (Md. 1966); Burwell v. Easton Memorial Hosp., 

, 395 (Md. App. 1990).

Under Maryland law, contributory negligence is a complete bar to
recovery in negligence actions. Hooper v. Mougin , 

, 238
(Md. 1971); Leakas v. Columbia Country Club, 

,
1236 (D. Md. 1993).

Applying the above principles to the instant case, there are five
possible scenarios with regard to notice and contributory negligence.
Under any scenario, the United States would not be liable. It could be
the case that the bench at issue was patently defective (scenario one),
or had a defect discoverable after a reasonable inspection (scenario
two). In those cases, while the United States would have had con-
structive notice of the dangerous condition, Little would have been
contributorily negligent in sitting on the bench. 3 This contributory
negligence by Little would relieve the United States of liability.
_________________________________________________________________
2 The United States argued below that Little should be treated as a
licensee. The United States did not pursue that argument before us, how-
ever. Since we affirm the district court, we need not reach the issue, in
any event.
3 The issue of Little's contributory negligence will be discussed at
greater length in section III(A), infra.

                     4
It could be the case that the bench was not patently defective, and
did not have a defect discoverable after a reasonable inspection (sce-
nario three). In that case there would probably be no contributory neg-
ligence by Little. If the defect was latent, however, and could not be
discovered by a reasonable inspection, then the United States would
not have any duty towards Little because the United States did not
know, nor could the United States by due care have found out, about
the defect that caused Little's injuries.

There is a possible twist on this third scenario. A jury could find
that, regardless of the notice of the possible defect in each table where
the leg attaches to the base, the particular defect that injured Little
was entirely different (scenario four). Some evidence suggests that
Little's injuries were not caused by the leg defect, but by another type
of defect in the table, where the bench attaches to the leg. If the jury
came to this conclusion, then Little may not have been contributorily
negligent when she sat on the bench because the particular defect that
caused her injuries was neither patent nor actually known to her. The
question would then be whether the United States could be charged
with knowledge of this other defect. Little has presented no evidence
of other tables experiencing a defect in the area where the bench
attaches to the leg. Without such evidence, there can be no notice to
the United States, and thus no breach of duty by the United States.

Finally, a jury might find that there "was a chronic and continual
problem with many of the tables," (Order and Memorandum of Chief
Magistrate Judge Klein, J.A. at 406), and because of that, it was negli-
gent for the United States to allow anyone to sit on any of the tables
(scenario five). In that case, however, it would have been just as neg-
ligent for Little to sit on one of the tables as it was for the United
States to allow her to sit on one of them. Little knew just as much
about the condition of the tables as did the United States.

Therefore, we hold that there can be no liability for the United
States. Under any scenario one of two factors relieves the United
States of liability: either the United States did not have any notice of
the defect or Little was contributorily negligent.

                     5
III.

The same analysis does not apply to Architectural Precast, how-
ever; especially, to the strict products liability claim against Architec-
tural Precast.

A.

Little's negligence claim against Architectural Precast is based on
a theory of negligent manufacture. The analysis relieving the United
States of liability does not relieve Architectural Precast of liability
because Little need not show that Architectural Precast was on notice
of the defect to prevail.

The district court dismissed Little's negligence and breach of war-
ranty claims against Architectural Precast because it found that she
engaged in contributory negligence. See Leakas , 831 F. Supp. at 1236
(contributory negligence is bar to recovery under nelgigence theory
in Maryland); Erdman v. Johnson Bros., 

, 750-51 (Md.
1970) (contributory negligence is a bar to actions based on the
implied warranty of merchantability in Maryland). We reverse the
district court's decision.

Contributory negligence "`is the doing of something that a person
of ordinary prudence would not do, or the failure to do something that
a person of ordinary prudence would do, under the circumstances.'"
Baltimore Gas & Elec. Co. v. Flippo, 

, 1155 (Md.
1998) (quoting Campfield v. Crowther, 

, 172 (Md.
1969)).

Ordinarily, the question of whether the plaintiff has been contribu-
torily negligent is for the jury, not the judge, to decide. Diffendal v.
Kash and Karry Serv. Corp., 

, 1177 (Md. App. 1988).
A court may find contributory negligence as a matter of law only
when the plaintiff has engaged in a "`prominent and decisive act
which directly contributed to the accident and which was of such
character as to leave no room for difference of opinion thereon by rea-
sonable minds.'" 

(quoting Reiser v.
Abramson, 

, 93 (Md. 1972)). Contributory negligence is

                     6
only relevant if that negligence contributed to causing the accident.
See Rosenthal v. Mueller, 

, 1266 (Md. App. 1998).

The district court held that Little was contributorily negligent as a
matter of law. The record shows that Little knew that the legs on sev-
eral of the other concrete tables at the cafe were dangerously defec-
tive. In fact, Little had placed post-it notes on some of the other tables
warning people not to sit on them. Further, Little had seen a bench
at one of the concrete tables wobble so much when a patron of the
Cafe sat down that the patron spilled coffee on himself. Little
expressly stated at her deposition that one of her fears was that the
bench would break under the weight of someone sitting on it. Little
also stated that she knew that one had to take special care to inspect
a table before sitting down. The district court found that all of the
above made Little's decision to sit at the table without first inspecting
it a negligent one. The district court separately held that Little's deci-
sion to use any of the concrete tables was negligent, given that she
could have sat inside at a safe table.

We disagree with several of the district court's conclusions. First,
it was not negligent as a matter of law for Little to sit on any of the
outside tables. Reasonable minds could disagree as to whether the
dangerous condition of about one-half of the concrete tables indicated
that all of the tables were dangerously defective and should not be
used at all. In fact, Mr. Little stated by affidavit that the month before
the accident, patrons and employees of the cafe regularly sat at those
tables which did not have concrete splaying around the legs. While
a jury might agree with the district court, the jury would be justified
in coming to a different conclusion.

Given the gradual and apparently contagious deterioration of the
tables, it would have been negligent as a matter of law, however, to
use one of the tables without first examining it to make sure it was
safe. Little admits that she knew that reasonable prudence required
such an examination. Little argues that even though she did not per-
sonally examine the table just prior to her accident, she had specifi-
cally asked and relied upon her husband to select a table that did not
have any splaying. "Under Maryland law, it is clear that a person may
rely on assurances of safety made to him by others in a situation
where an ordinarily prudent person would do so." Campbell v. Balti-

                     7
more Gas & Elec. Co., 

, 218 (Md. App. 1993) (citing

).

The district court did not agree, holding that Little could not rea-
sonably rely upon her husband because she was personally aware of
the danger involved. See 

clear, however, `that ... a
person cannot rely on another's assurances where he is aware of the
danger involved or where the danger is obvious enough that an ordi-
narily prudent person would not so rely.'" (quoting 

)). We agree with the district court's conclusion. Given that Lit-
tle knew about the possibility of a dangerous condition, and given that
Little did not ask her husband if he had actually checked to make sure
the bench she sat on was safe, it was negligent for her not to inspect
the table herself before sitting.

We disagree with the district court's contributory negligence hold-
ing, however, because a jury could well conclude that the facts sup-
ported a scenario under which Little's negligence was not
contributory. As noted in section 

, there are five possible sce-
narios. We agree that under scenarios one and two, Little would be
contributorily negligent as a matter of law. We have already
explained, however, that under scenario five, reasonable minds could
disagree as to whether Little was contributorily negligent. Further,
under scenarios three and four, Little was not contributorily negligent.
Under scenario three, the defect causing Little's injuries was not dis-
coverable by a reasonable inspection. This scenario is supported by
record evidence. Even if Little was negligent in failing to inspect the
table, this negligence would not be contributory if the defect was not
discoverable by an inspection prior to Little's accident. Not all defects
manifest themselves before they cause an accident. 4 Similarly, under
the fourth scenario, Little's negligence in failing to inspect the table
would not be contributory. Prior to Little's accident, the concrete
tables had been splaying at the legs, not at the attachment of the
_________________________________________________________________
4 Architectural Precast points out, though, that the photograph suppos-
edly of the table at issue shows that there was splaying evident at the
base of the leg. Since this picture was taken a week after Little's acci-
dent, it is only indirect proof that such splaying was evident prior to Lit-
tle's accident. A reasonable jury could conclude that the splaying first
began with Little's accident.

                    8
benches. An inspection of the legs would not have revealed a defect
in the bench attachment. Thus, Little's failure to inspect for splaying
or instability at the legs did not contribute to her injury under this pos-
sible scenario.

B.

Little also sued Architectural Precast under a strict products liabil-
ity theory. The district court granted summary judgment in favor of
Architectural Precast because Little did not allege or provide evidence
of a specific defect that caused her injuries. We reverse the district
court.

To recover under strict products liability, the plaintiff must show
that (1) the product was in a defective condition the time it left the
control of the seller, (2) it was unreasonably dangerous to the user or
consumer, (3) the defect was a cause of the injuries, and (4) the prod-
uct was expected to and did reach the consumer without substantial
change in its condition. Phipps v. General Motors Corp., 

, 958 (Md. 1976). An "unreasonably dangerous" product is one
which is "`dangerous to an extent beyond that which would be con-
templated by the ordinary consumer who purchases it, with the ordi-
nary knowledge common to the community as to its characteristics.'"

of Torts § 402A, cmt. i (1965)).
Contributory negligence is not a defense to strict liability in Mary-
land, Montgomery County v. Valk Mfg. Co., 

, 1247
(Md. 1989), but assumption of risk is, Ellsworth v. Sherne Lingerie,
Inc., 

, 356 (Md. 1985).

Proof of a defect "`must rise above surmise, conjecture, or specula-
tion ...; and one's right to recovery may not rest on any presumption
from the happening of an accident.'" Harrison v. Bill Cairns Pontiac
of Marlow Heights, Inc., 

, 390 (Md. App. 1988) (omis-
sion in original) (quoting Jensen v. American Motor Corp., Inc., 

, 245 (Md. App. 1981)). Although proof of a defect may not
rest on the mere fact that an accident occurred,"`the addition of very
little more in the way of other facts ... may be enough to support the
inference.'" Virgil v. Kash n' Karry Service Corp., 

, 657
(Md. App. 1984) (quoting Prosser, The Fall of the Citadel, 

. Rev. 791, 843-44 (1966)), cert. denied, 

(Md. 1985).

                     9
"An inference of a defect may be drawn from the happening of an
accident, where circumstantial evidence tends to eliminate other
causes, such as product misuse or alteration." 

be
considered in determining whether a product defect may be inferred
from circumstantial evidence include: (1) expert testimony as to pos-
sible causes; (2) the occurrence of the accident a short time after the
sale; (3) same accidents in similar products; (4) the elimination of
other causes of the accident; and (5) the type of accident that does not
happen without a defect. 

. Further, the
plaintiff need not provide expert testimony to establish the existence
of a defect, and "a precise definition of [the defect] is unnecessary."

(quoting Heaton v. Ford Motor Co., 

, 808 (Or. 1967)).

The district court's basic holding that Little's claim must fail
because she did not establish a specific defect is simply wrong under
Maryland law. Virgil states plainly that a"precise definition" of the
defect is not necessary. 

.

The broader rationale for the district court's holding is also flawed.
The district court was troubled because the evidence presented by Lit-
tle was very confused. Some testimony indicated that the entire leg
and bench mechanism toppled over; some testimony indicated that the
bench "snapped off" from the leg; the photos of the table allegedly
involved in Little's accident shows only concrete splaying at the leg,
and no other problems. The district court felt that these inconsisten-
cies placed Architectural Precast at an unfair disadvantage and some-
how created a heightened duty on Little to identify the specific defect
that caused her injuries. In our view, the job of sorting out this con-
flicting evidence should be left to the jury.

Further, we reject the district court's determination that Little did
not provide evidence sufficient to find a defect which caused her inju-
ries. There is sufficient evidence to find that both the legs (scenarios
one through three and five) and the bench (scenario four) of the table
are defective. First, the legs of heavy concrete tables do not normally
begin to splay and give way; and the benches of heavy concrete tables
do not normally snap off. This is especially true after less than one
year-and-a-half of use. Architectural Precast indicated that typically
such tables last for eight years, sometimes as long as 15 to 20 years.

                    10
Other evidence supports this inference of a defect. Little presented
evidence that the legs on these same tables had been replaced for the
same splaying defect only a year before her accident. Little also pre-
sented testimony from the facilities office in charge of the building
and grounds which housed the cafe that there had been no vandalism,
misuse, or alteration of the concrete picnic tables. Plus, we deal here
with heavy concrete tables -- in all practicality there is very little that
could actually be done to harm them. All of this evidence may be cou-
pled with the fact that "[e]xpert testimony is hardly necessary to
establish that" a leg on a concrete table that wobbles, or a bench on
a concrete table that falls off, when someone sits on it, is defective.
See 

. Such evidence provides a sufficient basis
for a jury to find that a defect caused Little's injuries.

Although the district court did not address this issue, we also hold
that the record does not establish as a matter of law that Little
assumed the risk. Contributory negligence and assumption of the risk
are related concepts, but they are not identical. Contributory negli-
gence, as noted above, is the failure to exercise ordinary care under
the circumstances. 

. Assumption of risk is
"`an intentional and voluntary exposure to a known danger.'" 

(quoting Rogers v. Frush, 

, 554 (Md.
1970)). While assumption of risk usually constitutes contributory neg-
ligence, proving a case of contributory negligence does not necessar-
ily establish the assumption of risk. 

. In
order to establish assumption of risk, the defendant must prove that
the plaintiff: "(1) had knowledge of the risk of the danger; (2) appre-
ciated that risk; and (3) voluntarily confronted the risk of danger."
ADM Partnership v. Martin, 

, 734 (Md. 1997). In this
case, Little was aware of the general risk that any of the concrete
tables might be dangerous to sit upon. She was not aware, however,
and did not assume the risk, that the specific table at issue was dan-
gerous. In fact, Little had some reason to believe that it was safe. The
only evidence on the point was that Mr. Little had inspected the table
that caused Little's injuries and did not see any splaying at the legs.
At the time Little sat down, she believed that her husband had per-
formed such an inspection to ensure that the table was safe. Little's
decision to sit down without performing an inspection, then, was not
the assumption of a specific known risk, but more in the nature of a

                     11
failure to proceed with the level of care of a reasonably prudent per-
son.

AFFIRMED IN PART AND REVERSED
AND REMANDED IN PART

NIEMEYER, Circuit Judge, concurring in part in the judgment and
dissenting in part:

Because I conclude that the issues in this case cannot be decided
as a matter of law, I would reverse and remand this case for further
proceedings.

                    12