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Shlian v. Shoppers Food Warehouse Corp.

United States District Court, D. Maryland

March 31, 2014

BARRY S. SHLIAN, Plaintiff,


BETH P. GESNER, Magistrate Judge.

The above-referenced case was referred to the undersigned for all proceedings with the consent of the parties, pursuant to 28 U.S.C. 636(c) and Local Rule 301.4. (ECF No. 12.) Currently pending are defendant's Motion for Summary Judgment ("Summary Judgment Motion") (ECF No. 19), plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Summary Judgment Opposition") (ECF No. 20), and defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Summary Judgment Reply") (ECF No. 23). Also currently pending are plaintiff's Motion for Spoliation Sanction ("Sanction Motion") (ECF No. 21) and defendant's Opposition to Plaintiff's Motion for Spoliation Sanction ("Sanction Opposition") (ECF No. 22). No hearing is deemed necessary. Loc. R. 105.6. For the reasons discussed herein, defendant's Motion for Summary Judgment (ECF No. 19) is GRANTED and plaintiff's Motion for Spoliation Sanction (ECF No. 21) is DENIED.

I. Background

Plaintiff Barry S. Shlian ("plaintiff") allegedly sustained personal injuries on June 17, 2012 while shopping at a store owned and operated by defendant Shoppers Food Warehouse Corporation ("defendant, " or "Shoppers") in Baltimore, Maryland. (Compl., ECF No. 2 at ¶¶ 1, 4.) According to plaintiff's account of the incident, plaintiff entered Shoppers Food Warehouse between 7:00 and 7:30 a.m. on Sunday, June 17, 2012. (Pl.'s Depo., ECF No. 19-2 at 17:11; 18:11-14.) After selecting a few items to purchase, plaintiff turned a corner to enter a cashier lane, slipped, and fell. (Id. at 22:16-23:1.) After falling, plaintiff saw a puddle of water on the floor and felt his shorts were wet. (Id. at 30:4-19.) Cashier Bernice Lebowitz told him that a customer in front of him purchased several bags of ice and the bags must have dripped on the floor. (Id. at 31:6-7; 32:2-6.) Plaintiff took a few moments to get up and then spoke with Assistant Store Director Michael Palmer. (Id. at 29:8-22.) Mr. Palmer asked plaintiff if he needed medical care, which plaintiff declined, and Mr. Palmer asked plaintiff for his personal information for an incident report. (Id. at 33:1-6.) Mr. Palmer gave plaintiff a piece of paper containing Mr. Palmer's name and telephone number. (Pl.'s Affid., ECF No. 20-2 at ¶ 7; Ex. 3 of Summ. J. Opp., ECF No. 20-4.) Plaintiff drove himself home and spoke with his wife, Brenda Shlian, and with his neighbor, emergency medicine physician Matt Levy. (Pl.'s Depo., ECF No. 19-2 at 34:5-18; 36:4-16.) Plaintiff then called an ambulance based on Dr. Levy's suggestion. (Pl.'s Affid., ECF No. 20-2 at ¶ 8.) Plaintiff was transported to St. Joseph Medical Center and admitted from June 17 to June 20, 2012. (Id.; Brenda Shlian Affid., ECF No. 20-3 at ¶ 5.)

Following the incident, Mr. Palmer documented the event on a Customer/Vendor Incident Worksheet. (Ex. 4, ECF No. 20-5.) Mr. Palmer wrote that "[c]ustomer slipped on melted ice from customer in front of him" and identified the puddle as measuring twelve inches by twelve inches and being present for thirty seconds. (Id.) Mr. Palmer also stated that the store had a functional CCTV system that recorded the incident. (Id.)

On March 21, 2013, plaintiff filed suit against defendant in the Circuit Court of Maryland for Baltimore City. (Petition for Removal, ECF No. 1 at ¶ 1.) Plaintiff states a negligence claim, asserting that defendant breached its duty of care to him by "failing to either clean up the water on the floor, or to properly and sufficiently warn the Plaintiff, Barry S. Shlian, of the existence of the liquid on the floor." (ECF No. 2 at ¶ 5.) Plaintiff seeks damages in the amount of $300, 000.00. (ECF No. 2 at 2.)

On March 27, 2013, defendant filed a Petition for Removal to this court on the grounds of diversity of citizenship pursuant to 28 U.S.C. § 1441(a).[1] (ECF No. 1.) Discovery closed on October 15, 2013. (Scheduling Order, ECF No. 15.) Thereafter, the pending motions and related pleadings were filed.

II. Defendant's Summary Judgment Motion

A. Summary Judgment Standard

Summary judgment is appropriate when "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). A genuine dispute remains "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A fact is properly considered "material" only if it might affect the outcome of the case under the governing law. Id . The party moving for summary judgment has the burden of demonstrating the absence of any genuine issue of material fact. Fed.R.Civ.P. 56(a); Pulliam Inv. Co., Inc. v. Cameo Props. , 810 F.2d 1282, 1286 (4th Cir. 1987). On those issues for which the non-moving party will have the burden of proof, however, it is his or her responsibility to oppose the motion for summary judgment with affidavits or other admissible evidence specified in Federal Rule of Civil Procedure 56. Fed.R.Civ.P. 56(c); Mitchell v. Data Gen. Corp. , 12 F.3d 1310, 1315-16 (4th Cir. 1993). If a party fails to make a showing sufficient to establish the existence of an essential element on which that party will bear the burden of proof at trial, summary judgment is proper. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986).

When reviewing a motion for summary judgment, the court does not evaluate whether the evidence favors the moving or non-moving party, but considers whether a fair-minded jury could return a verdict for the non-moving party on the evidence presented. Anderson , 477 U.S. at 252. In undertaking this inquiry, the court views all facts and makes all reasonable inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). The non-moving party, however, may not rest on its pleadings, but must show that specific, material facts exist to create a genuine, triable issue. Celotex , 477 U.S. at 324. A "scintilla" of evidence in favor of the non-moving party, however, is insufficient to prevent an award of summary judgment. Anderson , 477 U.S. at 252. Further, "mere speculation" by the non-moving party or the "building of one inference upon another" cannot create a genuine issue of material fact. Cox v. Cnty. of Prince William , 249 F.3d 295, 299-300 (4th Cir. 2001). Summary judgment should be denied only where a court concludes that a reasonable jury could find in favor of the non-moving party. Anderson , 477 U.S. at 252.

B. Negligence Standard

Defendant moves for summary judgment, arguing that plaintiff cannot establish a prima facie case of negligence because plaintiff failed to offer evidence that defendant had actual or constructive knowledge of the alleged hazard and an adverse inference alone is insufficient to satisfy plaintiff's burden of proof. (ECF No. 19-1 at 6; ECF No. 23 at 2-3.) In reliance upon the customer/vendor incident worksheet prepared by Mr. Palmer, (ECF No. 20-5), plaintiff argues there is evidence that the puddle was present for thirty seconds, which plaintiff maintains is a sufficient amount of time for defendant to be aware of the hazard and warn plaintiff, and that the unpreserved tape of the incident would have demonstrated this timeframe. (ECF No. 20-1 at 5-7.) Under Maryland law, [2]as a customer in a store maintained by defendant, plaintiff was a business invitee to whom defendant owed a duty to "use reasonable and ordinary care to keep the premises safe... and to protect [him] from injury caused by an unreasonable risk that [he], exercising ordinary care for [his] own safety, [would] not discover." Henley v. Prince George's Cnty. , 503 A.2d 1333, 1343 (Md. 1986). "[N]o presumption of negligence on the part of the proprietor, " however, "arises merely from a showing that an injury was sustained in his store." Garner v. Supervalu, Inc., 396 Fed.App'x 27, 29 (4th Cir. 2010) (internal citation omitted). Maryland courts have emphasized that a store operator is "not an insurer of the safety of his customers, " Moulden v. Greenbelt Consumer Servs., Inc. , 210 A.2d 724, 725 (Md. 1965), and have held that it would be unreasonable to impose a duty on a proprietor to continuously inspect the premises. See, e.g., Lexington Mkt. Auth. v. Zappala , 197 A.2d 147, 148 (Md. 1964) (commercial business ...

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