United States District Court, D. Maryland
WILLIAM CONNELLY, Magistrate Judge.
Plaintiff Vanessa Spence ("Ms. Spence") brought this action against Defendant Wal-Mart Stores East, LP, doing business as Wal-Mart, alleging negligence and seeking in excess of $75, 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. 27. The case thereafter was referred to the undersigned. See ECF No. 28. Pending before the Court and ready for resolution is Wal-Mart's Motion for Summary Judgment (ECF No. 32). Ms. Spence filed an Opposition (ECF No. 36) and Wal-Mart filed a Reply (ECF No. 37).
Both Wal-Mart and Ms. Spence request an oral hearing. See ECF No. 32 at 2; ECF No. 36 at 2. No hearing is deemed necessary and therefore both requests are denied. The Court now rules pursuant to Local Rule 105.6 (D. Md. 2014).
On the evening of Friday, July 22, 2011, Ms. Spence visited the Wal-Mart store in Germantown, Maryland to exchange a shower head fixture. Upon entering the store she walked to the department where shower head fixtures are sold, selected a different shower head fixture, and then proceeded to Customer Service located in the front of the store. Ms. Spence slipped and fell on the floor between two cash registers as she approached the Customer Service Desk.
JURISDICTION AND VENUE
Subject matter jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332. Ms. Spence resides in Gaithersburg, Maryland. Wal-Mart is incorporated in Delaware and its principal place of business is Bentonville, Arkansas. See ECF No. 1 ¶ 6. 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.
STANDARD OF REVIEW
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 Liability
Before addressing the parties' positions regarding genuine issues as to any material fact, the Court must address some preliminary matters. Since this Court's jurisdiction is based on diversity of citizenship, the principles outlined in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938) require the application of Maryland law to substantive law questions. Under Maryland law a property owner owes a certain duty to an individual who comes in contact with the property, and the scope of the duty owed is dependent upon the individual's status while on the property. Baltimore Gas & Elec. Co. v. Flippo, 348 Md. 680, 688, 705 A.2d 1144, 1148 (1998). Maryland law recognizes four categories of individuals: (1) an invitee, (2) a licensee by invitation, (3) a bare licensee and (4) a trespasser. An invitee is an individual who is on the property for a purpose related to the landowner's business. "An occupier of land has a duty to use reasonable and ordinary care to keep the premises safe for an invitee and to protect him from injury caused by an unreasonable risk that the invitee, by exercising ordinary care for his own safety, will not discover." Henley v. Prince George's County, 305 Md. 320, 339, 503 A.2d 1333, 1343 (1986).
A licensee by invitation is a social guest and the landowner "owes a duty to exercise reasonable care to warn the guest of dangerous conditions that are known to the [landowner] but not easily discoverable." Flippo, 348 Md. at 689, 705 A.2d at 1148 (citation omitted). For a bare licensee, a person on the property with permission but for his/her own purposes, a landowner only owes a duty to refrain from willfully or wantonly injuring the bare licensee and to refrain from creating "new and undisclosed sources of danger without warning the [bare] licensee.'" Id. (citation omitted). For a trespasser, someone who intentionally and without permission enters another's property, a landowner owes no duty except refraining from willfully or wantonly injuring or entrapping the trespasser.
On July 22, 2011 Ms. Spence was a customer at a Wal-Mart store in Germantown, Maryland. She visited the store to return and exchange a shower head fixture. Ms. Spence was in the store for a purpose related to Wal-Mart's business. Ms. Spence was thus an invitee.
Under Maryland law, to establish a prima facie case of negligence, Ms. Spence must prove "(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty.'" Valentine v. On Target, 353 Md. 544, 549, 727 A.2d 947, 949 (1999) (citations omitted). Negligence means doing something a person using reasonable care would not do, or not doing something a person using reasonable care would do. Maryland Civil Pattern Jury Instruction 19:1. Ordinary or reasonable care means "that caution, attention or skill a reasonable person would use under similar circumstances." Id.
Wal-Mart owes a duty of ordinary care to keep its premises safe for an invitee such as Ms. Spence. That duty is defined as follows.
[A]n owner or occupier of land only has a duty to exercise reasonable care to "protect the invitee from injury caused by an unreasonable risk" that the invitee would be unlikely to perceive in the exercise of ordinary care for his or her own safety, and about which the owner knows or could have discovered in the exercise of reasonable care. The duties of a business invitor thus include the obligation to warn invitees of known hidden dangers, a duty to inspect, and a duty to take reasonable precautions against foreseeable dangers.
Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md.App. 381, 388, 693 A.2d 370, 374 (1997) (internal citations omitted).
Wal-Mart is not an insurer of Ms. Spence's safety while Ms. Spence is on its premises. "[N]o presumption of negligence on the part of the owner arises merely from a showing that an injury was sustained in his store." Moulden v. Greenbelt Consumer Servs., Inc., 239 Md. 229, 232, 210 A.2d 724, 725 (1965). Therefore, "[i]n an action by a customer to recover damages resulting from a fall in a store caused by a foreign substance on the floor or stairway, the burden is on the customer to produce evidence that the storekeeper created the dangerous condition or had actual or constructive knowledge of its existence." Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 119, 113 A.2d 405, 408 (1955).
C. Dangerous Condition: Created or Known
Ms. Spence has not presented any evidence that the clear liquid substance on the floor was created or caused by Wal-Mart. See Piceno v. Wal-Mart Stores, Inc., Civil No. CCB-07-268, 2008 U.S. Dist. LEXIS 36463, at *10 (D. Md. May 1, 2008) (denying Wal-Mart's motion for summary judgment because "Mr. Piceno's observation of a mop and bucket near the site of his fall would be sufficient to allow the jury reasonably to conclude that the area had been recently mopped."). Nor has Ms. Spence presented any evidence that Wal-Mart was actually aware of the clear liquid substance on the floor before she fell. See Williams-Stewart v. Shoppers Food Warehouse Corp., Civil No. JKS-13-2518, 2014 U.S. Dist. LEXIS 123771, at *1-2, *5, *10 (D. Md. Sept. 5, 2014) (denying Defendant's motion for summary judgment because even though (a) Defendant was aware of leak from refrigeration units before Plaintiff's fall, (b) Defendant had placed multiple wet floor signs in the aisle along with "spill magic absorbent socks" and paper towels, and (c) Plaintiff conceded being aware of at least one wet floor sign near the refrigeration units, the court explained "depending on the extent of the leak and the location of the caution signs, a jury could conclude that Defendant did not provide sufficient warning and that the condition was thus not open and obvious.").
It is undisputed that at 7:31 p.m., six minutes before Ms. Spence fell at 7:37 p.m. as recorded by video surveillance, Anthony Chase, a Customer Service Manager at the Germantown ...