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Vason v. Board of Education of Montgomery County

United States District Court, D. Maryland

January 31, 2017



          DEBORAH K. CHASANOW United States District Judge.

         Presently pending and ready for resolution are a motion for summary judgment filed by Defendant Board of Education of Montgomery County (“Defendant”) (ECF No. 14), and a motion by Plaintiff Sylvia Vason (“Plaintiff”) for leave to file a surreply to Defendant's motion for summary judgment (ECF No. 22). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, both motions will be granted.

         I. Background[1]

         On September 13, 2012, Plaintiff visited the Galway Elementary School in Montgomery County to drop off her grandson, a student at the school. (ECF No. 14-2, at 2). As she walked toward the school, she tripped over a vertical lip in the concrete sidewalk leading up to the entrance of the school and fell to the ground. (Id. at 3). Plaintiff alleged that the fall caused numerous physical injuries, shock to her nerves and nervous system, mental anguish, medical expenses, and other damages. (ECF No. 1 ¶ 12).

         On July 29, 2015, Plaintiff filed the instant suit for negligence against Defendant. (Id.) As an invitee on its property, she contends that Defendant owed her a duty of care to inspect pedestrian walkways periodically for defects like the one she tripped over, and, in turn, to repair such defects or to warn invitees about them. (Id. ¶ 10; ECF No. 15-1, at 4).[2] She alleges that Defendant's employees who worked at the school breached these duties by allowing her to use the sidewalk in its defective condition, which was the cause of her injuries. (ECF No. 1 ¶¶ 11, 12).

         Defendant filed the instant motion for summary judgment on March 16, 2016. (ECF No. 14). Plaintiff responded on April 4, and Defendant replied on April 26. (ECF Nos. 15; 21). Plaintiff has now moved to file a surreply. (ECF No. 22).

         II. Motion for Leave to File a Surreply

         Under Local Rule 105.2(a), “[u]nless otherwise ordered by the Court, surreply memoranda are not permitted to be filed.” A surreply may be permitted “when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply.” Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003) (citation omitted). By contrast, “[a] motion for leave to file a surreply may be denied when the matter addressed in the reply is not new.” Marshall v. Capital View Mut. Homes, No. RWT-12-3109, 2013 WL 3353752, at *3 (D.Md. July 2, 2013) (citation omitted).

         Here, Plaintiff's response to Defendant's motion for summary judgment included a supplementary report from Plaintiff's expert witness, Allen M. Bissell. (ECF No. 15-6). That report is dated March 23, 2016, nearly a month after the parties' discovery deadline of February 26 and a week after Defendant filed its motion for summary judgment. (See ECF Nos. 15-6, at 1; 16 ¶ 2). The report contained new opinions about the size of the sidewalk defect and the effect of the sun's position at the time of the accident on Plaintiff's ability to see the defect. (ECF No. 15-6, at 1-2). Defendant filed a motion to exclude Mr. Bissell's supplementary report, or, alternatively, to allow it to supplement its motion for summary judgment to include arguments based on the triviality of the defect. (ECF No. 16 ¶ 12). On April 26, Defendant's motion was denied in a paperless order, without prejudice to Defendant including arguments related to the supplemental report in its reply brief. (ECF No. 20). The court acknowledged that Plaintiff could thereafter move for leave to file a surreply. (Id.). In its reply, Defendant used the evidence from the supplemental report to argue that the defect in the sidewalk was too trivial for it to be held liable. Plaintiff filed her instant motion on May 13, and Defendant has consented to the motion. (ECF Nos. 22; 24). Because Defendant made its triviality arguments for the first time in its reply, Plaintiff's motion for surreply will be granted.

         III. Motion for Summary Judgment

         A. Standard of Review

         A motion for summary judgment will be granted only if there exists no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Summary judgment is inappropriate if any material factual issue “may reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250; JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). The moving party bears the burden of showing that there is no genuine dispute as to any material fact. If the nonmoving party fails to make a sufficient showing on an essential element of the case as to which the party would have the burden of proof, however, then there is no genuine dispute of material fact. Celotex, 477 U.S. at 322-23. Therefore, on those issues on which the nonmoving party has the burden of proof, it is that party's responsibility to confront the summary judgment motion with an “affidavit or other evidentiary showing” demonstrating that there is a genuine issue for trial. See Ross v. Early, 899 F.Supp.2d 415, 420 (D.Md. 2012), aff'd, 746 F.3d 546 (4th Cir. 2014). “A mere scintilla of proof . . . will not suffice to prevent summary judgment.” Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (citations omitted). In other words, a “party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences.” Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted); see Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). Indeed, this court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993). At the same time, the court must construe the facts that are presented in the light most favorable to the party opposing the motion. Scott v. Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.

         B. Analysis

         To establish a prima facie case for negligence under Maryland law, a plaintiff must prove: (1) the defendant owed a duty to protect the plaintiff from injury; (2) the defendant breached that duty; (3) the plaintiff suffered an injury; and (4) the defendant's breach was the proximate cause of the injury. See Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 76 (1994). In a premises liability slip-and-fall case, the evidence must show that: (1) a dangerous condition existed; (2) the defendant had actual or constructive knowledge of it; and (3) such knowledge was gained in sufficient time to give the defendant the opportunity to remove it or to warn of it. See Maans v. Giant of Md., LLC, 161 Md.App. 620, 629 (2005). A defendant's duty to those using sidewalks under its control “is not that of an insurer of their safe passage.” Martin v. Mayor & Council of Rockville, Md., 258 Md. 177, 182 (1970) (quoting Leonard v. Lee, 191 Md. 426, 431 (1948)). A landowner “only has a duty to exercise reasonable care to protect the invitee from injury caused by an ...

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