The opinion of the court was delivered by: William Connelly United States Magistrate Judge
Plaintiff Robin L. Jones ("Mrs. Jones") brought this action against Defendants Wal-Mart Stores, Inc., Wal-Mart Stores East, LP, Wal-Mart Real Estate Business Trust and Wal-Mart Realty Company ("Wal-Mart") alleging negligence and seeking $500,000 in damages. The parties consented to proceed before a United States Magistrate Judge for all further proceedings in the case and the entry of a final judgment. See ECF No. 11. The case thereafter was referred to the undersigned. See ECF No. 12. Pending before the Court and ready for resolution is WalMart's Motion for Summary Judgment (ECF No. 18). Mrs. Jones filed a Response in Opposition (ECF No. 19). Wal-Mart did not file a Reply and the deadline for such elapsed on February 11, 2013.
Both parties request a hearing. See ECF Nos. 18, 20. No hearing is deemed necessary and therefore both requests for hearing are denied. The Court now rules pursuant to Local Rule 105.6 (D. Md. 2011).
On the evening of May 4, 2009 Mrs. Jones, her husband and their son
visited the Wal-Mart store located at 45485 Miramar Way, California,
Maryland. About 8:59 p.m., as the family
exited the store, a plastic cover for a concrete bollard*fn1
fell onto Mrs. Jones. She described the sequence of events.
A: We were leaving the store - - we just finished the shopping and we were leaving out the door, and I was on this side and my little boy was kind of like in the middle and my husband was here (indicating) pushing the cart, and I guess when I got by the pole the cover, or whatever it was, just fell into me.
ECF No. 19-1 at 3 (R. Jones Dep. 51:13-19).
Q: Then I'm looking on page 3 of your recorded statement, and it says, seven from the bottom, eight from the bottom where Ms. Hernandez who is taking the deposition says:
'Q: Okay. Did that knock you to the floor?
And your answer was: 'A: I - - it knocked me down, but while I was in the process, I grabbed my husband. In-between grabbing my husband and grabbing the corner of the basket I kept from falling.
A: That's what I believe happened. I mean, I grabbed my husband and grabbed the corner, and actually when I plunged forward I twisted. No, my face did not hit the blacktop.
A: But, I mean, I went down far enough that I had to - - I didn't hit the ground.
Q: Did any part of your body hit the ground?
A: Not that I can recall. I don't remember to be honest with you.
A: All I can say is I grabbed, I tried to keep from falling on the ground.
Id. at 4 (R. Jones Dep. 53:6 -- 54:8).
Q: Can you describe for me how hard the pole [cover] hit your or how it felt when it hit you first in the right cheek?
A: It just felt like something hit me. I can't explain it. It was just like a thump.
A: And like I said, I plunged forward, so I mean it happened so quick I couldn't tell you.
Q: Okay. There's two separate hits though?
A: Yes. I had two separate hits. I mean, I get hit, and then when I twisted, it fell and hit me in the back of the knee.
Id. at 5 (R. Jones Dep. 59:6-17).
Subject matter jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332. Mrs. Jones resides in Lusby, Maryland. Wal-Mart is a Delaware corporation with its principal place of business in Bentonville, Arkansas. The amount in controversy exceeds $75,000, exclusive of interest and costs. Pursuant to 28 U.S.C. § 1391 venue is proper in this district because a substantial part of the events or omissions giving rise to the claim occurred in this district.
A motion for summary judgment will be granted only if there exists 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(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950). The moving party bears the burden of showing that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(a); Pulliam Inv. Co., 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).
When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323.
On those issues where the nonmoving party will have the burden of proof, it is that party's responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256. However, "'[a] mere scintilla of evidence is not enough to create a fact issue.'" Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir. 1984) (quoting Seago v. North Carolina Theaters, Inc., 42 F.R.D. 627, 632 (E.D.N.C. 1966), aff'd, 388 F.2d 987 (4th Cir. 1967), cert. denied, 390 U.S. 959 (1968)). There must be "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
A. Overview -- Premises ...