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Zilichikhis v. Montgomery County

Court of Special Appeals of Maryland

May 28, 2015


Woodward, Arthur, Salmon, James P. (Retired, Specially Assigned), JJ.


Arthur, J.

Appellant Rafail Zilichikhis slipped and fell inside a parking garage owned and operated by Montgomery County. He and his wife brought an action against the County and the private companies that operate or maintain the garage. The Circuit Court for Montgomery County granted summary judgment on the grounds that the Zilichikhises had produced no admissible evidence that any of the defendants had the requisite actual or constructive knowledge of the slip-and-fall hazard and that the County enjoyed governmental immunity with respect to its operation of the garage. We affirm.

Factual and Procedural Background

A. Slip and Fall Inside Garage 49

Dr. Rafail Zilichikhis and Mrs. Lubov Zilichikhis reside at the Metropolitan Apartments at 7620 Old Georgetown Road in Bethesda. A public parking facility known as Garage 49 or the Metropolitan Garage is located at the same address, underneath the apartment building. Montgomery County owns and operates the garage as part of the Bethesda Parking Lot District.

On the evening of June 21, 2011, Dr. Zilichikhis, who was 82 years old at the time, parked his car in a handicapped parking spot near elevators on the ground level of Garage 49. He planned to drive his wife to a medical appointment the next morning. Some time before 10:00 a.m. on June 22, 2011, Dr. Zilichikhis walked across the street to purchase a newspaper. He then returned to the garage and walked toward his vehicle.

A short distance away from his parked car, Dr. Zilichikhis slipped and fell onto the concrete surface. On the ground, he noticed a wet and greasy substance that he had not previously seen. When he tried to stand up, he slipped and fell a second time. After crawling out of the area, he was able to stand up and make his way to his vehicle.

A few minutes later, Mrs. Zilichikhis arrived at the passenger side of the vehicle, walking from a different direction. Dr. Zilichikhis informed his wife that he had fallen and injured himself on a slippery surface, in the area between the front driver's side of the vehicle and a nearby railing. She noticed that his knee was slightly bloody.

The Zilichikhises drove away and attended Mrs. Zilichikhis's scheduled appointment. Afterwards, they drove to the nearby residence of their daughter, Alona Bauer. Dr. Zilichikhis soon began to complain of a severe headache. He was taken to a hospital for emergency treatment, referred to a neurologist, and diagnosed with a subdural hematoma that required immediate surgery. Dr. Zilichikhis continues to suffer various impairments as a result of his traumatic brain injury.

The Zilichikhises' other daughter, Irina Lotvin, is also a resident of the Metropolitan Apartments. Ms. Lotvin returned to the garage after her father's surgery on the evening of June 22, 2011. She inspected an area that she believed to be the area in which her father fell. Additional photographs of that same location were taken in July and August of 2011 by Ms. Bauer and by an attorney for the Zilichikhises.

B. Complaint for Negligence and Loss of Consortium

In December 2011, Dr. Zilichikhis gave notice of a potential tort claim to the County Executive for Montgomery County. See Md. Code (1974, 2006 Repl. Vol.), § 5-304 of the Courts and Judicial Proceedings Article.

On September 10, 2012, Dr. Zilichikhis and Mrs. Zilichikhis filed a complaint in the Circuit Court for Montgomery County. The complaint asserted claims against a number of defendants: Montgomery County, the owner of the garage; the Montgomery County Department of Transportation, an agency charged with administering the parking district; Penn Parking, Inc., the management company for the garage; and Colossal Contractors, Inc., a company that performs cleaning services for the garage through a contract with the County. The complaint asserted that Dr. Zilichikhis was entitled to recover for his injuries and that Mrs. Zilichikhis was entitled to recover for loss of consortium.[1]

Each of the defendants filed an answer denying liability. The County raised the affirmative defense of governmental immunity and asserted that the County lacked any actual or constructive knowledge of the dangerous condition.[2] Colossal Contractors asserted, among other things, that it did not have any "reasonable notice" or any "opportunity to cure or warn" of the condition that allegedly caused the slip and fall.

In addition to answering the complaint, Colossal Contractors filed cross-claims against the County, the Department of Transportation, and Penn Parking, seeking indemnity and contribution, as well as attorney's fees and costs. Penn Parking responded by filing its own cross-claim, seeking indemnity and contribution from Colossal Contractors.

C. Motions for Summary Judgment

After extensive discovery, the County filed a motion to dismiss and for summary judgment on December 4, 2013. The County argued that the court should dismiss the claims against the Montgomery County Department of Transportation because the Department did not have the capacity to be sued. The County also argued that there was no factual dispute that it operated the garage in a governmental capacity and thus that it was immune from liability. See Bagheri v. Montgomery Cnty., 180 Md.App. 93, cert. denied, 406 Md. 112 (2008).

The County further argued that the Zilichikhises had no evidence that it had the requisite actual or constructive knowledge of the dangerous condition in time to remedy the condition before Dr. Zilichikhis's fall. See, e.g., Joseph v. Bozzuto Mgmt. Co., 173 Md.App. 305, 315 (2007) (quoting Rehn v. Westfield America, 153 Md.App. 586, 593 (2003), cert. denied, 380 Md. 619 (2004)) (to sustain a cause of action in a premises liability case, the plaintiff "must prove not only that a dangerous condition existed but also that the [defendants] 'had actual or constructive knowledge of the dangerous condition and that the knowledge was gained in sufficient time to give [them] the opportunity to remove it or to warn the [plaintiff]"). Soon thereafter, Colossal Contractors and Penn Parking also moved for summary judgment on the ground that those defendants had no actual or constructive knowledge of the hazard.

Collectively, the defendants argued that the Zilichikhises had no evidence that the motor oil spill existed for any period of time sufficient for the defendants to protect Dr. Zilichikhis or to warn him of the danger. The defendants pointed out that Dr. Zilichikhis did not see any oil in the area when he parked his car the previous evening. They emphasized that Dr. Zilichikhis had touched and smelled the oil after his fall, and he described it as "fresh."[3] They further contended that there was no evidence that any of the defendants created the motor oil spill or actually knew of its existence.

D. Opposition to Summary Judgment

On December 27, 2013, the Zilichikhises responded to each of the defendants' motions. The Zilichikhises argued that they had established factual disputes as to whether the defendants knew or should have known of the hazardous condition. They relied upon affidavits from Ms. Lotvin and another resident, which stated that before June 2011 Garage 49 was always dirty and that the parking surface was often slippery. They also relied upon deposition testimony from Mrs. Zilichikhis, in which she stated that she had complained to Penn Parking attendants about the general condition of the garage before the accident. In addition, the Zilichikhises pointed to communications from County representatives after the accident, which indicated that the County was aware of problems with grease and water infiltration in the garage (though not at the specific site where Dr. Zilichikhis fell).

Central to the Zilichikhises' opposition to summary judgment was their argument that the defendants "need not have knowledge of the specific oil spot on which [Dr.] Zilichikhis fell, " but rather that the defendants "need only be on notice of the dangerous condition in general." But see Maans v. Giant of Maryland, L.L.C., 161 Md.App. 620, 637-40, cert. denied, 388 Md. 98 (2005) (rejecting the proposition that a plaintiff need not prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise because of the manner in which the owner or occupier regularly does business). The Zilichikhises argued that each of the defendants should have known about recurring spills that frequently created slippery conditions, but that the defendants did nothing to remedy that problem.

The Zilichikhises also contended that there were unresolved factual issues material to the County's defense of governmental immunity. They argued that the County could not assert governmental immunity because they had adduced evidence that the parking garage was used as a "walkway, footway, or public way." See Higgins v. City of Rockville, 86 Md.App. 670, 679, cert. denied, 323 Md. 309 (1991) ("a municipality has a 'private proprietary obligation' to maintain its streets, as well as the sidewalks, footways and the areas contiguous to them, in a reasonably safe condition"). The Zilichikhises submitted affidavits from two residents of the Metropolitan Apartments, who stated that they frequently or occasionally walked through the parking garage because the garage served as a convenient route to exit the apartment building, and that they had never been asked to stop walking through the garage.

The Zilichikhises' memorandum suggested that Dr. Zilichikhis was no longer a reliable witness. They characterized his deposition testimony as "jumbled, confusing, and unreliable in some regards due to his injuries, his inability to hear properly, and because of [] translation from English to [his native] Russian."

E. Supplemental Response and Accompanying Affidavits

On February 7, 2014, just six days before a scheduled hearing on the summary judgment motions, the Zilichikhises filed supplemental responses in opposition to the defendants' motions. Among other things, the Zilichikhises submitted a set of undated photographs accompanied by two affidavits. The photographs depicted several dark stains on a concrete surface, extending across a parking space and a walkway that was painted with yellow lines, near a set of steps and a ramp set off by handrails.

A new affidavit from Ms. Lotvin stated:
In the evening on June 22, 2011, I visited the area where my father fell and took several pictures, copies of which are appended . . . . The photographs were taken approximately eight hours after my father fell.
The photographs are true and accurate copies of the photographs I took on June 22, 2011. They fairly and accurately depict the scene of my father's fall at the time the photographs were taken . . . .

Ms. Lotvin's affidavit did not disclose any basis to conclude that she had personal knowledge that the photographs depicted the actual location where her father had fallen. Nor did the affidavit disclose any basis to conclude that she had personal knowledge of the condition at that location at the time her father fell eight hours before.

The second new affidavit came from Dennis R. Andrews, Ph.D., safety engineer who had previously offered an expert opinion that Dr. Zilichikhis would not have been injured if the parking garage surface had been maintained properly. Dr. Andrews offered a number of opinions based on his review of the photographs taken by Ms. Lotvin, including the following opinion:

The size, shape, nature, condition, and location of the motor oil, and the similar conditions located nearby in the photographs, indicate that the hazard has been present in that area for a significant period of time, very likely longer than 36-48 hours.
The size, shape, nature, condition, and location of the motor oil, particularly given its close proximity to a set of stairs and handicapped parking spaces, indicate that the hazard would have and should have been recognized on any routine inspection or walk-through of the garage.

The County filed a reply on February 10, 2014. The County argued that, notwithstanding the submissions in the supplemental opposition, the Zilichikhises still had no competent evidence that the County had constructive knowledge of the oil spill. The County pointed out that Dr. Zilichikhis himself never testified that the newly-disclosed photographs depicted the condition of the garage at the time of his fall. The County also argued that Dr. Andrews's expert opinion on the duration of the spill was "inherently untrustworthy, speculative, and therefore, inadmissible."

F. Circuit Court's Summary Judgment Ruling

After being rescheduled because of a blizzard, the summary judgment hearing was held on February 26, 2014. In an oral ruling, the court granted each of the defendants' motions.

The court concluded, first, that the Zilichikhises had no evidence that the hazardous condition existed for any significant period of time before the fall. The court reasoned that, without any such evidence, the Zilichikhises could not prove that the defendants had notice of the hazard.

The court rejected any arguments based on the newly-disclosed photographs, because the Zilichikhises had laid no foundation to show that the photographs depicted the actual site of the fall. The court observed that Dr. Zilichikhis had testified at his deposition that he fell in a parking space, not in the pedestrian walkway with yellow, painted lines that was depicted in the photographs. The court also observed that Mrs. Zilichikhis, in her deposition, had testified that her husband had said that he fell in a parking space, not in a walkway with painted lines. In view of that testimony, the court asserted, "There is not even any evidence that this oil spot is the spot that we're talking about." Consequently, the court reasoned that the Zilichikhises had not adduced a sufficient basis to admit the expert opinion based on those photographs.[4]

Turning to the issues that pertained specifically to the County, the circuit court concluded that the County was immune because it operated the garage in a governmental rather than a proprietary capacity. The court rejected the Zilichikhises' argument that Dr. Zilichikhis fell in a public walkway where governmental immunity did not apply, because the deposition testimony established only that Dr. Zilichikhis slipped and fell in a parking space.[5]

On March 4, 2014, the court entered orders granting summary judgment in favor of the County, Penn Parking, and Colossal Contractors. Although the grant of summary judgment eliminated any grounds for the cross-claims that Penn Parking and Colossal ...

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