Opinion
Civ. No. H-99-2536.
April 17, 2000.
MEMORANDUM AND ORDER
Plaintiff Miriam Stanton ("Stanton") was injured when she slipped and fell while entering a retail store owned and operated by defendant Frank's Nursery Crafts, Inc. ("Frank's"). Joined by her husband, Stanton has here sued Frank's, seeking compensatory damages for the personal injuries sustained by her and also damages for loss of consortium. This civil action was originally filed in the Circuit Court for Baltimore City and was subsequently removed by defendant to this Court pursuant to 28 U.S.C. § 1441(a) on the ground that diversity jurisdiction exists under 28 U.S.C. § 1332(a).
Count I of the complaint is based on a theory of premises liability. Plaintiffs allege that Stanton was a business invitee at defendant's retail store and that defendant owed her a duty to use reasonable care to protect her from injury. It is further alleged that defendant breached its duty of care and that as a proximate result of defendant's negligence plaintiff Stanton sustained injuries when she slipped and fell on December 22, 1997. In Count II, Stanton and her husband seek damages for loss of consortium.
Pursuant to Scheduling Orders entered by the Court, the parties have engaged in discovery. Presently pending before the Court is a motion for summary judgment filed by defendant Frank's. The parties have submitted memoranda and numerous exhibits in support of and in opposition to the pending motion, including photographs, excerpts from depositions and answers to interrogatories. A hearing on the pending motion has been held in open court. For the reasons stated herein, defendant's motion for summary judgment will be denied.
I Background Facts
Where facts are disputed, a court, in considering a defendant's motion for summary judgment, must accept the plaintiff's version of the events if supported by deposition testimony, affidavits, exhibits or other documentary evidence. See Magnuson v. Peak Technical Servs., Inc., 808 F. Supp. 500, 504 (E.D.Va. 1992).
On December 22, 1997, Stanton and a co-worker, Sandy Brant ("Brant"), drove to a Frank's store during their lunch break to do some shopping. The store in question is located on Reisterstown Road in Baltimore County. The weather conditions on that day consisted of a mixture of sleet and freezing rain. Upon arriving at the store, Stanton and Brant walked carefully from the parking lot to the store's entrance, as the parking lot was wet and slippery because of the inclement weather conditions.
The entrance to the store has an automatic door which opens inward into an approximately twelve-foot long vestibule. This entrance way in turn leads to a second automatic door which opens directly into the store itself. The vestibule has one lane leading into the store and another lane leading out of the store, with the two lanes being separated by a rail barrier. On inclement days like the one in question, the floor space located immediately after the second automatic door inside the store is covered with one or more floor mats. No mat had been placed on the vestibule floor on the morning of December 22, 1997.
During oral argument, counsel for defendant conceded that there was no mat on the vestibule floor when plaintiff Stanton entered the area.
The walkway immediately preceding the entrance is made of concrete. The vestibule floor is made of vinyl composition tile, which meets with the concrete walkway at the beginning of the entrance. Where these two surfaces meet, the tile in the vestibule is slightly raised, creating a lip of varying height between 1/16" and 1/8", depending on what point along the entrance one measures the height of the lip. The tile edge creating the lip was uneven and broken in places.
After entering the store by way of the first automatic door, Stanton stumbled over the raised lip of the vestibule floor. When she tried to regain her balance, her feet slipped out from underneath her on an exposed, wet portion of the vestibule floor. As Stanton was falling and in an attempt to regain her balance, she grabbed the rail barrier inside the vestibule, which partially broke her fall. Stanton has alleged that she sustained severe and permanent injuries to her lower back and neck as a result of her fall, requiring two separate surgical procedures.
Brant was walking directly behind Stanton at the time of the incident and witnessed the fall. Another witness, Thomas Guild ("Guild"), was exiting the store immediately after the fall, observed the condition of the vestibule floor and assisted in supporting Stanton for approximately ten minutes.
II Applicable Principles of Law
The principles to be applied by this Court in considering a motion for summary judgment under Rule 56, F.R.Civ.P., are well established. A party moving for summary judgment bears the burden of showing the absence of any genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). Where, as here, the nonmoving party will bear the ultimate burden of persuasion at trial, "the burden on the moving party [at the summary judgment stage] may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In Phoenix Sav. Loan, Inc. v. Aetna Cas. Co., 381 F.2d 244, 249 (4th Cir. 1967), the Fourth Circuit Court of Appeals summarized the principles applicable under Rule 56 as follows: "It is well settled that summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances." Id. Hence, the party opposing a motion for summary judgment is entitled to all favorable inferences which can be drawn from the evidence. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970); Cram v. Sun Life Ins. Office, Ltd., 375 F.2d 670, 674 (4th Cir. 1967).
The party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact. Barwick, 736 F.2d at 958. This burden is met by consideration of affidavits exhibits, depositions and other discovery materials. Id. Nevertheless, "[t]he facts, and the inferences to be drawn from the facts, must be viewed in the light most favorable to the party opposing the motion." Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir. 1987), cert. denied, 484 U.S. 897 (1987) (citing Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985)).
In Maryland, the duty that an owner or occupier of land owes to persons entering onto the land varies according to the visitor's status as an invitee (i.e., a business invitee), a licensee by invitation (i.e., a social guest), a bare licensee, or a trespasser. Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md. App. 381, 387-88 (1997) (citations omitted). The highest duty is owed to a business invitee, defined as "one invited or permitted to enter another's property for purposes related to the landowner's business." Id. at 388.
Storekeepers owe their business invitees or customers a duty of ordinary and reasonable care to maintain their premises in a reasonably safe condition. Moulden v. Greenbelt Consumer Serv., 239 Md. 229, 232 (1965). The customer is entitled to assume that the storekeeper will exercise reasonable care to ascertain the condition of the premises, and, if he discovers any unsafe condition, he will either take such action as will correct the condition and make it reasonably safe or give a warning of the unsafe condition. Rawls v. Hochschild, Kohn Co., Inc., 207 Md. 113, 117-18 (1955). The duties of a storekeeper thus include the obligation to warn customers of known hidden dangers, a duty to inspect, and a duty to take reasonable precautions against foreseeable dangers. Tennant, 115 Md. App. at 388.
Nevertheless, storekeepers are not insurers of their customers' safety, and no presumption of negligence arises merely because an injury was sustained on a storekeeper's premises. Rawls, 207 Md. 113 at 118. A storekeeper's liability under negligence principles for a customer's injuries arises only from a failure to observe the duty of ordinary and reasonable care. Giant Food, Inc. v. Mitchell, 334 Md. 633, 636 (1994) (citations omitted).
Under Maryland law, negligence is doing something that a person using ordinary care would not do or not doing something that a person using ordinary care would do. MPJI 19:1. Ordinary care means that caution, attention or skill a reasonable person would use under similar circumstances. Id. Negligence is a relative term and must be decided upon the facts of each particular case. Fowler v. Smith, 240 Md. 240, 246 (1965). As the Court of Appeals has stated in an oft-quoted passage in that case (Id.):
Ordinarily [negligence] is a question of fact to be determined by the jury, and before it can be determined as a matter of law that one has not been guilty of negligence, the truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish negligence drawn. . . . And Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury. The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury. (Emphasis supplied.)
See also Giant Food, Inc. v. Scherry, 51 Md. App. 586, 592 (1982).
III Discussion
In support of its motion for summary judgment, defendant Frank's argues that the raised tile at the entrance of the store's vestibule did not constitute a dangerous or unsafe condition and that in any event plaintiff cannot establish that the raised tile at such entrance caused her to trip and fall. According to defendant, even if the raised tile were deemed to be a dangerous or unsafe condition on the store premises, evidence does not exist in the record indicating that defendant had actual or constructive knowledge of such condition.
In opposing the pending motion for summary judgment, plaintiffs assert that the dangerous condition which caused Stanton to fall and sustain injuries was not the raised tile alone, but was in fact the tile coupled with the wet and slippery conditions inside the vestibule. Plaintiffs maintain that evidence of record indicates that defendant had actual or constructive notice of the dangerous, wet and slippery conditions which existed inside the store's vestibule.
Following its review of the record here, this Court concludes that the issues of negligence presented cannot be determined as a matter of law at this stage of the case. When viewed in a light favorable to the plaintiffs, the evidence produced by them is sufficient to permit them to present to the jury their claim that defendant Frank's was negligent and breached the duty owed by it to Stanton as a business invitee on the day in question.
As noted herein, storekeepers under Maryland law owe their customers a duty of ordinary and reasonable care to maintain their premises in a reasonably safe condition. Moulden, 239 Md. at 232. This duty includes, inter alia, the obligation to warn customers of known hidden dangers and a duty to take reasonable precautions against foreseeable dangers. Tennant, 115 Md. App. at 388.
Evidence exists to support plaintiffs' claim that Stanton's injuries were caused by her having first tripped over the raised lip and having then slipped on the wet, slick floor inside the vestibule. Whether or not the raised lip alone constituted a dangerous condition in the store, this Court cannot conclude on the record here that the accumulation of water in the vestibule did not pose a hazard to the store's customers and that the wet and slippery conditions thereby created did not constitute a dangerous condition. Indeed, defendant implicitly acknowledged as much on the day of the incident when it placed floor mats inside the store itself and also cautionary cones near the cash registers in order to warn its customers of the hazards of a wet floor. However, when Stanton arrived at the store, there was no mat or cone inside the vestibule, and evidence therefore does not exist that Stanton had been warned of dangerous conditions existing in the vestibule before she fell. Counsel for defendant contended that a mat could not be placed in the vestibule because of the automatic door which opened inward. However, a photograph taken after this incident discloses that a mat can indeed be placed in the vestibule without interfering with the opening of the automatic door.
There is also evidence in the record indicating that defendant had actual or constructive knowledge of the dangerous condition at issue. The accident happened at midday when plaintiff arrived at the store, and it had been raining and sleeting most of the morning. According to the deposition testimony of Guild, the vestibule floor was wet for a substantial period of time before Stanton entered the outer door and slipped. It may reasonably be inferred that defendant should have been aware that inclement weather conditions of this sort could create a dangerous condition inside the vestibule as a result of customers having tracked water into that area during the morning hours. As noted, the fact that defendant had actual knowledge of wet and slippery conditions inside the store is indicated by evidence that on the morning in question defendant had placed floor mats and cautionary cones inside the store. A dispute of fact therefore exists as to whether the defendant had actual or constructive knowledge of the dangerous condition created by the accumulation of water in the vestibule.
Defendant argues that the obligations owed by it to its customers concerning the accumulation of water inside the store premises were satisfied when defendant placed a floor mat inside the store and also cones marked "Caution Wet Floor" near the cash registers. But there are genuine issues of disputed fact concerning the effectiveness of these warnings insofar as plaintiff was concerned. According to Stanton, the cautionary cones placed inside the store could not be seen by customers until they had actually entered. There is evidence indicating that a floor mat could have been placed inside the vestibule and that defendant, although aware of the vestibule's wet and slippery condition, had failed to mop it any time on the day in question prior to the accident. The issues of fact presented cannot be decided on the record here as a matter of law. Whether evidence of record supports plaintiffs' claims or the defenses asserted by Frank's depends on the credibility of the witnesses and the inferences which the jury can reasonably draw from the facts.
Defendant's reliance on Gellerman v. Shawan Road Hotel Limited Partnership, 5 F. Supp.2d 351 (D.Md. 1998) is misplaced. The Court there determined as a matter of law that the condition of the curb/sidewalk joint on defendants' premises was open and obvious. Id. at 354. The facts here are quite different and are disputed. It cannot in this case be determined as a matter of law that the condition of the premises claimed to be dangerous was so open and obvious that plaintiff Stanton must be charged with knowledge of its existence.
Defendant further argues that Stanton was contributorily negligent as a matter of law and that plaintiffs are therefore barred from obtaining any recovery in this case. There is no merit to this contention.
Contributory negligence is the failure of a person to observe ordinary care for his or her own safety. Menish v. Polinger Co., 277 Md. 553, 559 (1976). It 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. Id. The issue of contributory negligence must be considered in the light of all the inferences favorable to the plaintiff's case which may be fairly deduced from the evidence. Reiser v. Abramson, 264 Md. 372, 377 (1972). Where there is a conflict of evidence as to material facts relied on to establish contributory negligence, or where more than one inference may be reasonably drawn therefrom, the question should be submitted to the jury. Id. at 377-78. In order that a case may be withdrawn from the jury on the ground of contributory negligence, the evidence must show some prominent and decisive act which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds. Id. at 378 (citation omitted).
Applying these principles to the facts of record here, this Court concludes that the issue of contributory negligence cannot be determined in defendant's favor as a matter of law at this stage of the case. It will be for the jury to determine whether Stanton's conduct during the sequence of events which culminated in her injury was not commensurate with that of a reasonably prudent person under like circumstances. See Witriol v. Pfueller, 247 Md. 177, 180 (1967). That Stanton could not remember whether she was looking up or down at the time of her accident and that she knew of the inclement weather conditions do not conclusively demonstrate that she was contributorily negligent in causing her injuries.
For all the reasons stated, this Court concludes that there are disputes of material fact both as to the issue of primary negligence of defendant and as to the issue of contributory negligence. It will be for the jury at the trial to decide these issues. Accordingly, it is this __ day of April, 2000 by the United States District Court for the District of Maryland,
ORDERED that the motion for summary judgment of defendant Frank's Nursery Crafts, Inc. is hereby denied.