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Feldman v. Nvr, Inc.

United States District Court, D. Maryland, Southern Division

November 12, 2014

NVR, INC., et al., Defendants.


GEORGE J. HAZEL, District Judge.

This is a negligence action brought by Plaintiff Irene Feldman against Defendants NVR, Inc., Ryan Homes, NV Homes, and Classic Group, LLC[1] arising out of a trip and fall incident. This Memorandum Opinion addresses Defendants' Motions for Summary Judgment, ECF Nos. 21 and 25, and supporting memoranda, ECF Nos. 21-1 & 25-1; Plaintiff's Oppositions, ECF Nos. 23 & 27; and NVR, Inc., Ryan Homes, and NV Homes' Reply, [2] ECF No. 24. A hearing is unnecessary. See Local Rule 105.6. For the reasons stated below, Defendants' Motions for Summary Judgment are GRANTED.


On March 15, 2011 at approximately 3:00 p.m, Plaintiff was walking in Gaithersburg, Maryland on the sidewalk of West Watkins Mill Road near its intersection with Forest Preserve Drive. Pl. Comp. at ¶ 3-4, ECF No. 1. When she attempted to cross over Forest Preserve Drive, she "was caused to trip and fall by an uneven curb at the apron of the island median."[3] Id. Plaintiff alleges that "there were no warning signs, markings or other indicators of this dangerous condition." Id. at ¶5. As a result of her fall, Plaintiff alleges she suffered severe bodily injuries. Id. at ¶ 11.

At the time of Plaintiff's purported trip and fall, the road surfaces of Watkins Mill Road and Forest Preserve Drive had only been paved with base coat; the road did not have a top coat of asphalt. Sack Aff. at ¶ 17, ECF No. 21-2. While "a curb cut entrance" to Town Center Boulevard had been constructed with an asphalt base coat, the remainder of the road had not been cleared. Id. The island median, with a curb and curb apron, had been created with poured concrete. Id. Due to the lack of top coat on the road, the road surface was approximately one to one and a half inches lower than the lip of the white concrete island median curb. Id .; see also letter from Stephen Gensemer, Esq., dated August 3, 2012 with attached photos ("Photos"), ECF No. 21-7. The following two pictures, taken a few days after the incident, show where Plaintiff tripped:

Photos, ECF No. 21-7.

Watkins Mill Town Center is a mixed use development in Gaithersburg, Maryland. Sack Aff. at ¶ 5, ECF No. 21-2. BP Residential Investments, LLC ("BP") was originally responsible for the construction and maintenance of Watkins Mill Road, including the medians on that road within the development. See NVR Mot., Declaration of Covenants, Conditions, and Restrictions [of the] Watkins Mill Town Center Homeowners Association ("[Watkins] HOA"), Inc. at 53, ECF No. 21-4; see also Sack Aff. at ¶ 7, ECF No. 21-2. Sometime in 2009, MTG Acquisition, LLC ("MTG") acquired portions of the Watkins Mill Town Center and assumed the rights and responsibilities of BP. Sack Aff. at ¶ 9-10, ECF No. 21-2; see also NVR Mot., Assignment of Declarant's Rights/Watkins Mill Town Center HomeOwners Association, Inc., ECF No. 21-5.

NVR is a company that constructs and sells single-family townhouses. Sack Aff. at ¶ 4, ECF No. 21-2. On October 12, 2009, NVR agreed to purchase certain lots in the Watkins Mill Town Center from MTG. Id. at ¶ 10; see also NVR Mot., Lot Purchase Agreement, ECF No. 21-6. Under the agreement, MTG was responsible for work involving roads that serviced the lots purchased by NVR. Sack Aff. at ¶ 12, ECF No. 21-2. MTG's responsibilities as to the lots, included, but were not limited to, installing curbs and gutters, paving streets and surfaces, and making streets and roads acceptable for use. Lot Purchase Agreement ¶ 14(a), ECF No. 21-6. Driveway aprons and sidewalks adjacent to the lots were NVR's responsibilities as the buyer. Id. at 51, Table D.11 & 12. Classic Group, LLC was the development manager of the property. Classic Group Mot. at 5 n.1, ECF No. 25-1.

On March 7, 2014, Plaintiff filed the instant action against NVR, Classic Group, LLC, and Montgomery County, Maryland. ECF No. 1. The Court has since dismissed Montgomery County from this case.[4] On April 15, 2014, Classic Group, LLC filed an answer, and NVR filed its answer on April 28, 2014. ECF No. 5 & ECF No. 14.

Plaintiff alleges that each remaining defendant separately "owned, operated, controlled, leased and/or held itself out as owner and/or developer of the land where... [she] was walking at the time of the incident." Pl. Compl. at ¶¶ 7, 15, 23, & 31, ECF No. 1. Thus, Plaintiff asserts, Defendants owed her a number of duties, including, but not limited to, the duty to:

(a) inspect the premises to discover any unreasonably dangerous conditions which they knew or had reason to know existed and to which pedestrians would be exposed, (b) post warnings about any unsafe or unreasonably dangerous conditions in such a way as to ensure that the persons intended to be protected by those warnings would, in fact, be able to see the same and appropriately adjust their conduct, and (c) to otherwise ensure that the land, including but not limited to all roads, sidewalks, medians, curbs and curb aprons was maintained in a reasonably safe condition such that no unreasonable threat of harm would be posed to invitees, customers, visitors or others on the premises.

Id. at ¶¶ 8, 16, 24, & 32.

Plaintiff alleges that each defendant breached the above duties by failing to inspect, or in the alternative, to post warnings about the allegedly dangerous condition and that, as a direct and proximate result of Defendants' breach, she has "suffered severe bodily injuries, which caused her and will continue to cause her severe physical pain, emotional distress and permanent ...

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