United States District Court, D. Maryland
JOSEPH D. PLANTHOLT, et al., Plaintiffs,
LOWE'S HOME CENTERS, LLC, Defendant.
ELLEN L. HOLLANDER, District Judge.
Joseph D. Plantholt and his wife, Cindy Plantholt, plaintiffs, have filed suit against Lowe's Home Centers, LLC ("Lowe's"), defendant, with respect to an injury sustained by Mr. Plantholt on March 6, 2012, when he slipped on a patch of ice at a Lowe's store in Timonium, Maryland. ECF 2. Mr. Plantholt was at the Lowe's store in connection with his seasonal, part-time employment with Scott's Miracle Grow Company ("Scott's"), a Lowe's vendor. At the relevant time, Mr. Plantholt was located in the outside garden section of the Lowe's store, and was involved in a product display for Scott's. As a result of Mr. Plantholt's fall, he broke his leg and his ankle, for which surgery and rehabilitation were required.
In Count I of the Complaint, plaintiffs allege that Lowe's was negligent. Plaintiffs aver that Mr. Plantholt was an invitee for a purpose related to Lowe's' business and Lowe's failed to exercise ordinary care to maintain the premises safely for Mr. Plantholt. ECF 2 at 5. Count II contains a claim by Mr. and Ms. Plantholt for loss of consortium. Id. at 5.
Lowe's has moved for summary judgment (ECF 26), supported by a memorandum (ECF 26-1) as well as several exhibits. Plaintiffs have filed an opposition to Lowe's motion (ECF 30), along with many exhibits. In addition, plaintiffs have moved for partial summary judgment as to the affirmative defense of assumption of the risk. ECF 27. Their motion is supported by a memorandum (ECF 27-1) as well as several exhibits. Lowe's has filed an opposition to plaintiffs' motion (ECF 28) and has submitted another exhibit. Plaintiffs have replied. ECF 29.
In sum, the motions have been fully briefed and no hearing is necessary to resolve them. See Local Rule 105.6. For the reasons set forth below, I will deny both motions.
I. Factual Summary
At the relevant time, Mr. Plantholt worked as a part-time seasonal merchandiser for Scott's and worked full-time as a technician for SAFT America. Plantholt deposition, ECF 26-2 at 9. As a merchandiser for Scott's, Mr. Plantholt was responsible for keeping various retail stores stocked with Scott's products, including the Lowe's store in Timonium, Maryland. See generally Plantholt deposition, ECF 27-2 at 17-25. Prior to March 6, 2012, Mr. PlantholT had been to the store in issue hundreds of times. Plantholt deposition, ECF 27-1 at 30.
On March 6, 2012, Mr. Plantholt arrived at the Lowe's store at about 7:00 a.m. ECF 27-2 at 14-15. He engaged in a number of tasks, such as ensuring the visibility of Scott's brochures. Id. at 15-24, 30-32. He then loaded a pallet of Scott's product onto a pallet jack for the purpose of arranging a display of the Scott's items for sale. ECF 27-2 at 30-33. According to plaintiffs, no one at Lowe's warned Mr. Plantholt of an ice patch in the area where he was about to place the products.
At about 9:00 a.m. (ECF 27-2 at 17), Mr. Plantholt began to pull the pallet jack while walking backwards and looking over his left shoulder to see where he was going. ECF 27-2 at 54-56. He chose the path in issue because it "was the closest point to [his] final destination." ECF 27-2 at 38. He hit a patch of ice, fell, and severely broke his ankle and his leg. ECF 27-2 at 99-102. There were no eyewitnesses to the fall. Id. at 100. Mr. Plantholt claimed that he first realized he walked on ice when he was on it. ECF 27-2 at 50. Until then, he could not determine what was on the floor, id. at 51, but assumed it was water. Id. at 52.
The parties have submitted photographs of the scene depicting a cone on the ice. See ECF 30-2. However, the parties dispute when the cone was actually placed on the ice, warning of the danger. Lowe's asserts the cone was placed on the ice prior to the incident, but plaintiffs dispute this assertion. Mr. Plantholt indicated that someone moved the cone onto the ice for the sake of photographs. ECF 27-2 at 46-48.
After Mr. Plantholt fell, Sherry Cavey, then the Lowe's Freight Flow Manager, was called to the scene to unlock a gate needed to provide ambulance access. Cavey deposition, ECF 30-3 at 11-12. She testified that, when she arrived at the scene, she did not see a cone warning of the ice. Id. at 52. She stated: "I didn't see it there, it wasn't there." Id.
Michael Leibforth, Mr. Plantholt's supervisor at Scott's, went to the store and took photographs of the scene. See Leibforth deposition, ECF 30-4 at 11-12; id. at 24-27. At his deposition, he testified that he was told by a vendor that a person at the location, who "may have been another vendor, " had "picked up the cone and put it there, " i.e., on the icy patch, after Mr. Plantholt's fall. ECF 30-4 at 25. Moreover, he was told by representatives of Lowe's that, on the evening prior to the incident, a hose had been left dripping. Id. at 23. Because it was cold on the morning in issue, ice had formed. It was Liebforth's understanding that Lowe's was aware of the dangerous condition prior to Mr. Plantholt's fall.
Patricia Romeo, the assistant Lowe's store manager at the time, was also deposed. See Romeo Deposition, ECF 30-5. She related her practice of conducting a safety inspection early every morning, beginning with the outside garden center. Id. at 55. Ms. Romeo discovered the icy patch at about 6:30 a.m. Id. at 113. She explained that "it looked a little slick. And, so, it was icy there." Id. at 65. She maintained that she "marked" the icy area with "a caution cone" in "the middle of the area" and "notified [her] associates." Id. at 63-65. Nevertheless, there was no notation of the ice hazard on the Daily Safety Review form. Id. at 69. In addition, she claimed that she instructed another Lowe's employee, Ronald Lewis, to apply ice melt to the area. Id. at 67-69. But, she did not witness salt put onto the subject area. Id. at 91-92, 70.
According to Ms. Romeo, immediately after the incident she asked Mr. Plantholt if he saw the "caution sign" and he allegedly responded: "I saw the sign, but it looked wet...." ECF 30-5 at 100. See also ECF 30-6 (Lowe's Incident Report). However, Mr. Plantholt has denied that he conversed with Ms. Romeo at the scene about the cone. ECF 30-1 at 61-63.
Mr. Lewis no longer works for Lowe's. But, plaintiffs were able to locate and depose him. He denied that he was at work at the time of the occurrence. Mr. Lewis's absence from work at the relevant time is confirmed by his work schedule. See Weekly Schedule Report, ECF 30-8. Moreover, Mr. Lewis claims that he was never instructed to put salt down on the icy patch prior to Mr. Plantholt's fall. See Lewis Deposition, ECF 30-7 at 12-13, 17, 35-38, 58.
II. Standard of Review
Summary judgment is governed by Fed.R.Civ.P. 56(a). It provides, in part: "The 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." See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party must demonstrate that there are disputes of material fact so as to preclude the award of summary judgment as a matter of law. Matsushita Elec. Indus. Co. v. Zenith, Radio Corp., 475 U.S. 574, 586 (1986).
The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is "material" if it "might affect the outcome of the suit under the governing law." Id. at 248. There is a genuine issue as to material fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; see Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012).
"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, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)), cert. denied, 541 U.S. 1042 (2004). However, the court should "view the evidence in the light most favorable to... the nonmovant, and draw all inferences in her favor without weighing the evidence or assessing the witness' credibility." Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002); see Matsushita Elec. Indus. Co., 475 U.S. at 587; FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).
The district court's "function" is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Of import here, the trial court may not make credibility determinations on summary judgment. Jacobs v. N.C. Administrative Office of the Courts, ___ F.3d ___, No. 13-2212, slip op. at 12 (4th Cir. March 12, 2015); Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007); Black &. Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis, 290 F.3d at 644-45. Indeed, in the face of conflicting evidence, such as competing affidavits or conflicting deposition testimony, summary judgment is generally not appropriate, because it is the function of the factfinder to resolve factual disputes, including matters of witness credibility. See, e.g., Boone v. Stallings, 583 Fed.App'x. 174 (4th Cir. 2014) (per curiam).
When, as here, the parties have filed cross-motions for summary judgment, the court must consider "each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.'" Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (citation omitted), cert. denied, 540 U.S. 822 (2003); see Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003). "Both motions must be denied if the court finds that there is a genuine issue of material fact. But if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the court will render judgment." 10A Wright, Miller & Kane, Federal Practice & Procedure § 2720, at 336-37 (3d ed. 1998, 2012 Supp.).
If "the evidence is such that a reasonable jury could return a verdict for the nonmoving party, " then a dispute of material fact precludes summary judgment. Anderson, 477 U.S. at 248. See Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). On the other hand, summary judgment is appropriate if the evidence "is so one-sided that one party must prevail as a matter of law." Id. at 252. But, "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id.
Lowe's contends that the warning cone was "conspiculously present in the area" where Mr. Plantholt fell. ECF 26 at 2; 26-1 at 2. It maintains that it did not breach the duty of care owed to Mr. Plantholt "because a yellow caution cone was placed in the area, which gave Mr. Plantholt adequate warning to avoid the dangerous condition that ultimately caused his injury." ECF 26-1 at 4. Moreover, Lowe's argues: "Plantholt breached his duty to exercise due care for his own safety while walking backwards while pulling a pallet jack and without adequately affording himself an opportunity to observe the path immediately in front of him." Id. In addition, Lowe's argues: "Plantholt made the decision to attempt to proceed off ...