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Frostbutter v. Bob Evans Farms, Inc.

United States District Court, Fourth Circuit

August 6, 2013



CHARLES B. DAY, Magistrate Judge.

Before this Court are Defendant Bob Evans Farms, Inc.'s Motion For Summary Judgment (ECF No. 32) ("Defendant's Motion for Summary Judgment") and Objection and Motion To Strike (ECF No. 38) ("Defendant's Motion to Strike"). The Court has reviewed Defendant's motions, related memoranda, and applicable law. No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court GRANTS Defendant's Motion to Strike and DENIES Defendant's Motion for Summary Judgment.


This is a premises-liability case in which Plaintiff alleges that she tripped on an unreasonably dangerous decorative curtain hanging under the sink in the restroom at Defendant's restaurant. Compl. ΒΆ 3 (ECF No. 2); Pl.'s Opp. Br. 7 (ECF No. 35). It is undisputed that Plaintiff sustained injuries when she fell in the restroom of Defendant's restaurant on April 16, 2011. Def.'s Br. 7-8. However, the parties vigorously contest the cause of that fall and whether Defendant acted negligently in maintaining the decorative curtain under the sink.

Plaintiff is a regular customer of Defendant's restaurant in Prince Frederick, Maryland, having eaten there "just about every day" for approximately the past twelve years before her fall. Pl.'s Opp. Br. Ex 1, Frostbutter Dep. Tr. 9:13-9:14, 42:4-42:9. On April 16, 2011, Plaintiff was accompanied to the restaurant by her longtime partner, William Godfrey. Id. at 6:7-6:9. According to Plaintiff, it was raining that morning when they arrived to the restaurant and she went into the bathroom to wash her hands and wipe the moisture off her glasses. Id. at 41:4-41:25. She testified that there was another unidentified woman standing next to her and talking with her at the sink. Id. When Plaintiff turned to leave the bathroom, she says that her "foot got caught" and she fell, landing on her hip. Id. at 41:23-41:25, 50:19-52:17. After the fall, Plaintiff states that she was looking up at the second woman and trying not to pass out when she heard the woman telling another person that "the curtain grabbed her foot." Id. at 52:20-52:23, 96:12-96:19. When asked as to her own perception of what caused her fall, Plaintiff said that the curtain "must have wrapped around her foot." Id. at 55:8-55:17. The parties dispute whether Plaintiff's use of the term "must have" indicates that she was uncertain about what caused her fall. Def.'s Br. 8; Pl.'s Opp. Br. to Def.'s Mot. to Strike 3-4 (ECF No. 40). In order to clarify her perception, Plaintiff appended an affidavit to her opposition brief stating more conclusively that she fell because her foot was caught on the curtain. Pl.'s Opp. Br. Ex. 9. Defendant has moved to strike this affidavit from the record, as will be addressed below.

It is undisputed that the curtain underneath the sink in woman's restroom had been there for a significant amount of time prior to the fall. Plaintiff testified that it had "always" been there "for a long time." Frostbutter Dep. Tr. 59:5-49:7. Plaintiff said that she had previously noticed the curtain because it is "the first thing you see" when entering the restroom. Id. at 50:3-50:8. According to David Alaniz, Defendant's general manager at the time, the curtain was already there when he began managing the store a year or two before the incident. Pl.'s Opp. Br. Ex. 2, Alaniz Dep. Tr. 29:9-30:18. The assistant general manager, Tammera Connelly, testified in her deposition that the curtain had been there for at least five years. Pl.'s Opp. Br. Ex. 6(b), Connelly Dep. Tr. 12:17-12:19. She also testified that no one had ever complained about the curtain and that there had been no prior incidents involving it. Id. at 17:5-17:13.

A central factual dispute is whether and to what degree the curtain hung overlapping the floor. Plaintiff testified that the curtain touched and "went over" the floor. Frostbutter Dep. Tr. 49:13-50:2. Of the eleven of Defendant's employees who have been deposed, only the host Matthew Twinam recalled that the curtain hung with an inch of slack. Pl.'s Opp. Br. Ex. 4, Twinam Dep. Tr. 19:8-21:20. Several other deponents remembered the curtain as just touching the floor or hanging slightly above it. Alaniz Dep. Tr. 25:6-25:11 ("It just touched the floor."); Pl.'s Opp. Br. Ex. 3, Owens Dep. Tr. 23:15-23:20 ("It was close to the floor but not on the floor."); Ex. 6(b), Connelly Dep. Tr. 7:22-8-14 ("It was hung about I'd say half inch to an inch to the floor."); Ex. 7, Blankenship Dep. Tr. 27:1-27:9 ("[I]t was maybe an inch to two inches off of the ground."); Ex. 8, Mueller Dep. Tr. 14:22-15:21 ("[U]sually it would not touch the ground.... [I]t would be about an inch off the ground."); Ex. 11, Gilbert Dep. Tr. 24:19-25:9 (about a quarter of an inch based on visual demonstration and measurement); Ex. 12, Horstkamp Dep. Tr. 10:18-11:2 ("[I]t didn't lap over... it just hung to the bottom of the floor.").


Rule 56 of the Federal Rules of Civil Procedure provides that a "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party is entitled to summary judgment when the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court views "facts and reasonable inferences in the light most favorable to the non-moving party." Dulaney v. Packaging Corp. of America, 673 F.3d 323, 330 (4th Cir. 2012); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "A genuine question of material fact exists where, after reviewing the record as a whole, a court finds that a reasonable jury could return a verdict for the nonmoving party." Dulaney, 673 F.3d at 330 (citing Newport News Holdings Corp. v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996)).

To establish the tort of negligence, a plaintiff must prove that the defendant breached a duty to protect the plaintiff from injury, proximately causing the plaintiff to sustain actual injury or loss. Brown v. Dermer, 744 A.2d 47, 54 (Md. 2000), overruled in part on other grounds by Brooks v. Lewin Realty, 835 A.2d 616 (Md. 2003). To find that a business owner breached the duty of care owed to a business invitee under Maryland law, the plaintiff must prove (1) that the storeowner had actual or constructive notice of a condition which created an unreasonable risk of harm to the invitee, (2) that the storeowner should have anticipated that the invitee would not discover the condition or realize the danger, or would fail to protect herself from the danger, and (3) that the storeowner failed to take reasonable means to make the premises safe or to give adequate warning of the condition to the invitee. Lloyd v. Bowles, 273 A.2d 193, 196 (Md. 1971) (citing Gast, Inc. v. Kitchner, 234 A.2d 172 (1967)); see also Gellerman v. Shawan Rd. Hotel Ltd. P'ship, 5 F.Supp.2d 351, 353 (D. Md. 1998).

Defendant makes several arguments in support of its Motion for Summary Judgment. First, it argues as a matter of law that the placement of a curtain underneath the sink in the woman's bathroom does not create an unreasonably dangerous condition. Second, Defendant argues that even if a dangerous condition existed Plaintiff has not established the requisite actual or constructive notice. Third, Defendant argues that Plaintiff's causation evidence is too speculative to withstand summary judgment. Fourth, Defendant argues that the curtain was an open and obvious condition of which it had no duty to warn Plaintiff, who was contributorily negligent as a matter of law. Before addressing these arguments, the Court will resolve Defendant's Motion to Strike to make clear what evidence it is relying on in resolving Defendant's Motion for Summary Judgment.

I. The Court may not consider Plaintiff's affidavit to the extent it contradicts or is inconsistent with her deposition testimony.

Defendant asks the Court to strike an affidavit Plaintiff appended to her opposition brief ("Plaintiff's affidavit") in which she further recounts under oath the circumstances of her fall. Pl.'s Opp. Br. Ex. 9. On a motion for summary judgment, the non-moving party may not create a material issue of fact by submitting an affidavit contradicting prior statements. Yost v. Hardees of Tazewell, No. 93-2256, 1994 WL 232343, at *3 (4th Cir. June 1, 1994); Barwick v. Celotex Corp., 736 F.2d 946, 959-60 (4th Cir. 1984), superseded by statute on other grounds as stated in Blackwell v. City of Concord, No. 1:11CV328, 2013 WL 395107, at *3 n.3 (M.D. N.C. Jan. 31, 2013). Further, conclusory and uncorroborated statements made in an affidavit by the non-moving party are not sufficient to create a genuine factual dispute. Nat'l Enterprises, Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000); Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996); 2315 St. Paul St., LLC v. Hartford Fire Ins. Co., No. GLR-10-3641, 2012 WL 2450167, at *3 (D. Md. June 25, 2012). It would greatly undermine the utility of Federal Rule of Civil Procedure 56 if parties could create factual disputes out of whole cloth simply by swearing out a self-serving affidavit to meet the elements of a claim. See Andrade v. Aerotek, Inc., 700 F.Supp.2d 738, 740 n.1 (D. Md. 2010) (quoting Barwick, 736 F.2d at 960).

Plaintiff's affidavit is essentially a condensed and more precisely worded version of her deposition testimony ...

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