United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge.
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.
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).
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). 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 ¶¶
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).
Motion for Leave to File a Surreply
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).
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.
Motion for Summary Judgment
Standard of Review
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.
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 ...