United States District Court, D. Maryland
TIMOTHY J. SULLIVAN, District Judge.
Plaintiff Carolyn Hurdle ("Ms. Hurdle") brought this action for negligence against Defendant Ollie's Bargain Outlet, Inc. ("Ollie's") seeking damages for injuries she suffered after falling in an Ollie's store in Hagerstown, Maryland. (ECF No. 1 ¶¶ 5-8.) The Motion for Summary Judgment ("Motion") (ECF No. 27) filed by Ollie's is now pending before the Court. Having considered the submissions of the parties (ECF Nos. 27, 28 & 29), I find that no hearing is necessary. See Loc. R. 105.6. For the reasons set forth below, the Motion (ECF No. 27) is GRANTED.
According to the Complaint, Ms. Hurdle was walking down an aisle in the Ollie's store located in Hagerstown, Maryland on July 2, 2011. (ECF No. 1. ¶ 6.) She "slipped and fell when she stepped in soapy liquid that had accumulated from leaking bottles onto the floor." ( Id. ) The "soap was clear or near clear" and Ms. Hurdle did not see it before she fell. ( Id. ) Ms. Hurdle alleges that Ollie's "knew, or through the exercise of ordinary care should have known, of the existence of this dangerous condition and cleaned it or placed warnings to alert patrons of the store to this latent danger." (ECF No. 1 ¶ 7.) Ms. Hurdle seeks to recover damages from Ollie's based on its negligence. ( Id. ¶ 8.)
"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." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing the motion, then a genuine dispute of material fact is presented and summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the "mere existence of a scintilla of evidence in support of the [opposing party's] position" is insufficient to defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to be drawn from the underlying facts, must be viewed in the light most favorable to the opposing party. Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008). A party may not rest upon the mere allegations or denials of its pleading but instead must, by affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial. Fed.R.Civ.P. 56(c)(1). Supporting and opposing affidavits are to be made on personal knowledge, contain such facts as would be admissible in evidence, and show affirmatively the competence of the affiant to testify to the matters stated in the affidavit. Fed.R.Civ.P. 56(c)(4).
1. Choice of Law
A court sitting in diversity must apply the choice of law rules of the state in which it sits. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941). Maryland adheres to the lex loci delicti rule to determine the applicable law in tort actions. Philip Morris Inc. v. Angeletti, 358 Md. 689, 744 (2000). Under this rule, the "substantive tort law of the state where the wrong occurs governs." Hauch v. Connor, 295 Md. 120, 123 (1983). Because the alleged tort took place in Maryland, Maryland law governs Ms. Hurdle's negligence claim.
2. Negligence Claim
To prevail on a claim of negligence in Maryland, a "plaintiff must [prove] the following elements: (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, Inc., 353 Md. 544, 549 (1999) (quoting Lane, 338 Md. at 44). The parties' arguments focus on the second element: whether Ollie's breached its duty to protect Ms. Hurdle from injury.
In Maryland, 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., 161 Md.App. 620, 627 (2005) (quoting Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 117 (1955)). This duty, however, does not arise unless the proprietor has "actual or constructive knowledge of [the dangerous condition]... gained in sufficient time to give the owner the opportunity to remove it or to warn the invitee." Rehn v. Westfield Am., 153 Md.App. 586, 593 (2003) (internal quotation omitted).
Ollie's argues that there is no evidence that it had actual or constructive knowledge of any dangerous condition with sufficient time to warn Ms. Hurdle or to remove the dangerous condition. (ECF No. 27-1 at 3.) In addition, Ollie's argues that Ms. Hurdle should be barred from any recovery based on her own contributory negligence. (ECF No. 27-1 at 5.)
Ms. Hurdle concedes that she cannot prove that Ollie's, acting through its store associates, had actual notice of the dangerous condition of the liquid soap on the aisle floor. (ECF No. 28 at 3.) At the same time, Ms. Hurdle does not argue that Ollie's had constructive notice of the dangerous condition. For example, she does not point to any evidence to show how long the dangerous condition existed ("time on the floor"), including evidence of other customers who had fallen in the aisle on the day of her fall, or whether the slippery spot showed any signs of traffic (such as footsteps or grocery cart tracks) that would indicate the length of time it had ...