CATHERINE C. BLAKE, District Judge.
Plaintiff La Shawn Alford ("Ms. Alford") brings this action against Food Lion, LLC ("Food Lion") seeking damages from an injury she suffered after falling in a Food Lion grocery store in Baltimore County, Maryland. Food Lion's motion for summary judgment is now pending before the court. For the reasons stated below, the motion will be granted.
At about 10:00 p.m. on July 3, 2011, Ms. Alford entered a Food Lion grocery store in Baltimore County, Maryland, to buy ice. (Am. Compl., ECF No. 14, ¶ 6; Alford Dep., June 4, 2013, ECF No. 27-3, 70:21-71:3). After Gail Richmond, the manager on duty at the customer service desk, told her where the ice was located, Ms. Alford began walking across the front of the store in the direction of the ice. (Alford Dep. 71:15-74:10).
Before Ms. Alford reached the ice, however, she slipped and fell in front of a display at the front of the store. (Alford Dep. 74:11-13, 77:9-10; Def.'s Supp. Reply Ex. E, ECF No. 32-4). In her deposition, she could not recall how far from the ice machine she was when she fell. (Alford Dep. 77:9-10). After reviewing the surveillance video, the expert she hired to examine the case estimated she was eight to ten feet away. (Harrison Dep., Aug. 21, 2013, ECF No. 27-5, 11:2-6, 14:15-15:12).
Once she had fallen, Ms. Alford noticed that her right leg was damp, which led her to believe water must have been on the floor and caused her fall. (Alford Dep. 81:14-82:19). She had not seen water or anything else on the floor prior to the fall. (Alford Dep. 79:9-15, 81:14-16, 82:17-19). After Ms. Alford fell, Ms. Richmond came over, but upon inspection did not see anything on the floor around Ms. Alford other than a shoe skid mark. (Richmond Dep., June 20, 2013, ECF No. 27-6, 37:13-38:17, 100:18-101:1). Although Ms. Alford claims to have told Ms. Richmond there was water on the floor after her fall, neither Ms. Richmond nor the other employee working that evening, Milburne Willis, remembered seeing water or any other substance on the floor then or earlier in the night. (Richmond Dep. 37:13-38:17, 42:10-14, 94:16-95:9, 100:18-101:1; Willis Dep., June 21, 2013, ECF No. 30-4, 15:18-16:5, 26:1-8).
Food Lion now moves for summary judgment, claiming that the undisputed facts do not support a conclusion that the store breached its duty to Ms. Alford. (Def.'s Mem., ECF No. 27-1). Because, viewing the facts in the light most favorable to Ms. Alford, there is no evidence upon which a reasonable juror could find that Food Lion had either actual or constructive notice of the alleged water, Food Lion's motion for summary judgment will be granted.
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "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) (emphasis added). Whether a fact is material depends upon the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Id. "A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [his] pleadings, ' but rather must set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must view the evidence in the light most favorable to the nonmovant and draw all justifiable inferences in his favor. Scott v. Harris, 550 U.S. 372, 378 (2007) (citation omitted); see also Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, 721 F.3d 264, 283 (4th Cir. 2013) (citation omitted). At the same time, the court must not yield its obligation "to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (citation and internal quotation marks omitted).
I. Choice of Law
A court sitting in a diversity case must apply the choice of law rules of the state in which it sits. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496 (1941). Despite a modern trend favoring alternative approaches, "Maryland adheres to the lex loci delicti rule" to determine the applicable law in tort actions. Philip Morris Inc. v. Angeletti, 752 A.2d 200, 230 (Md. 2000); see also Erie Ins. Exch. v. Heffernan, 925 A.2d 636, 651 (Md. 2007) ("We see no reason to discontinue our adherence to the principles of lex loci delicti. "). Under this rule, "the substantive tort law of the state where the wrong occurs governs." Hauch v. Connor, 453 A.2d 1207, 1209 (Md. 1983). Because the alleged tort took place in Baltimore County, Maryland, Maryland law governs Ms. Alford's negligence claim.
II. Negligence Claim
Under Maryland law, "the proprietor of a store owes a duty to... [an invitee] to exercise ordinary care to keep the premises in a reasonably safe condition and will be liable for injuries sustained in consequence of a failure to do so." Maans v. Giant of Maryland, L.L.C., 871 A.2d 627, 631 (Md.App. 2005) (alteration in original) (quoting Rawls v. Hochschild, Kohn & Co., 113 A.2d 405 (Md. 1955)) (internal quotation marks omitted). To prove that a proprietor violated his duty, "[t]he evidence must show not only that a dangerous condition existed, but also that the proprietor had actual or constructive knowledge of it, and that that knowledge was gained in sufficient time to give the owner the opportunity to remove it or to warn the invitee.'" Rehn v. Westfield Am., 837 A.2d 981, 984 (Md.App. 2003) (quoting Keene v. Arlan's Dep't Store of Baltimore, Inc., 370 A.2d 124 (Md.App. 1977)); see also Joseph v. Bozzuto Mgmt. Co., 918 A.2d 1230, 1235 (Md.App. 2007). "[T]here is no liability for harm resulting from conditions... which the occupier neither knew about nor could have discovered with reasonable care." Tennant v. Shoppers Food Warehouse Md. Corp., 693 A.2d 370, 375 (Md.App. 1997) (internal quotation marks and citation omitted). The customer-plaintiff bears the burden of demonstrating that the store proprietor had notice of the condition. Rehn, 837 A.2d at 984.
Ms. Alford does not claim that Food Lion or its employees spilled the water and there is no evidence to support a finding that they had actual notice, as no one other than Ms. Alford remembers seeing it on the floor. ( See Richmond Dep. 37:13-38:17, 94:16-95:9, 100:18-101:1; Willis Dep. 15:18-16:5, 26:1-8). To prove her negligence claim, therefore, Ms. Alford must ...