United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
Jennifer Anderson brings this negligence action against
Defendant Home Depot. U.S.A.. Inc. for injuries sustained
after a metal bracket fell on Plaintiffs head while she was
shopping in Defendant's store. Presently pending before
the Court is Defendant's Motion for Summary Judgment. ECF
No. 59. Defendant's Motion to Strike Plaintiffs Expert
Disclosure and Bar Testimony, ECF No. 65. and Defendant's
Motion to Seal. ECF No. 64. No hearing is necessary.
See Loc. R. 105.6 (D. Md. 2016). For the following
reasons. Defendant's Motion for Summary Judgment is
denied, in part, and granted, in part. Defendant's Motion
to Strike is granted, and Defendant's Motion to Seal is
granted, in part, and denied, in part.
following facts are undisputed and presented in the light
most favorable to Plaintiff. Anderson visited the Home Depot
store in Waldorf. Maryland on the evening of October 30.
2011. ECF No. 59-2 at 3. Anderson was there to purchase a wire
ClosetMaid pantry shelf, hi. at 3-4. She
had installed many ClosetMaid shelves before and was familiar
with the product. See id, at 4. When Anderson
arrived at the store, it was "very empty" and near
closing time. hi. Anderson proceeded directly to
find the pantry shelves. Id. When Anderson entered
the correct aisle, she approached a bin within a larger bay
area where the ClosetMaid products were located. Id.
at 5: see ECF No. 62-14 at 2; F.CF No. 62-6 at 2-5.
The shelves were sitting in a flat bin about eight feet long
and three-and-a-half feet off the ground. See ECF
No. 62-4 at 2. The bin had a lip around it. about three or
four inches tall, with prices listed on the lip. See
id; ECF No. 59-2 at 8. The bin contained three wire
shelving products, approximately six feet tall, positioned
upright and leaning backwards against the wall. See
ECF No. 62-6 at 2. Flat shelving pieces were sitting on the
left side of the bin. small wire pantry shelves were in the
middle, and large wire pantry shelves were on the right side
of the bin. ECF No. 59-2 at 5-7. The small and large shelves
had multiple tiers and were partially stacked on top of one
another. .See ECF No. 62-6 at 2: ECF No. 59-2 at 7.
inches above the shelving products was a display shelf, fully
assembled, so that customers could see what the shelving
looked like .when it was installed. ECF No. 59-3 at 2: ECF
No. 59-5 at 6-8. The display shelf was comprised of a long
vertical track, approximately six feet long, which was
affixed to the wall. See ECF No. 59-5 at 8. Five
twelve-inch long, triangle-shaped, metal brackets hooked into
the track, each about sixteen inches apart. See id.:
ECF No. 62-4 at 2; ECF No. 59-8 at 3. A ventilated wire shelf
sat on top of the metal brackets. See ECF No. 59-3
at 2. According to Home Depot, no merchandise or overstock
was supposed to be stored on the display shelf. ECF No. 59-5
at 15. Defendant also contends that if the shelf were
installed correctly, it "would be a pretty hard hit to
dislodge [the shelf] out of the metal bracket." ECF No.
59-5 at 9.[]
selected a smaller pantry shelf from the middle of the bin.
ECF No. 59-2 at 6-7. She did not move anything else in the
bin. Id. at 7. No other person was in the aisle with
Anderson at the time. Id. at 4. Anderson reached up
and grabbed the bottom of the shelf to gently lift it up over
the lip and out of the bin. Id. at 7. The wire shelf
she grabbed came free of the ones beneath it. and as Anderson
was lifting the shelf, she "felt the top of it tap
something." Id. Anderson looked up and saw a
metal bracket heading towards her. Id. The bracket
struck Anderson's head, nose, cheek, and shoulder.
Id. at 13. Photographs of the display shelf, taken
after the incident, show four metal brackets on the vertical
track of the display shelf, with the right-most bracket
missing. See ECF No. 62-6 at 4: ECF No. 59-3 at 2.
Although the bracket was kept initially. Home Depot does not
know what ultimately happened to the bracket. See
ECF No. 62-5 at 6.
filed a customer incident statement with Assistant Store
Manager Phillip Yates at 7:50 p.m. ECF No. 62-2 at 2. The
statement indicates that "Ms. Anderson was shopping in
closet maid area, when she lift[ed] pantry rack it hit brace
off top rack display. Brace came down and hit customer in top
of head and left cheek. . . . Customer will go to Souther[n]
MD Hospital." Id. The incident statement
describes Anderson's injuries: "[p]retty bad
headache and very nau[seous]. Bruise to left cheek and very
red and swelling on top right portion of head. Also bruise on
bridge of nose. Feels tingly in face, and sore."
Home Depot Plans and Procedures
layout and setup of the Home Depot product bays are guided by
"planograms." which are visual diagrams published
by Home Depot. See ECF No. 62-4 at 2-3; ECF No. 62-5
at 18. The particular planogram for the pantry shelf bay was
titled "6 Bay - 99 - Closet Storage -Wire
Shelving." and dated effective October 14. 2011. ECF No.
62-4 at 2-3. The planogram depicts the dimensions of various
areas within the product bay. a list of inventory, and the
intended placement of the products. The planogram also
includes some "safety text" at the bottom, which
includes such instructions as "fu]se a toe beam and
bolted safety beam or safety cable to secure vertically
stored shelving" and "[a]ssembled closet, cabinet,
and shelving display units must be secured to the back wall
.. ." hi. at 2. The planogram was used in both
the installation or placement of the display shelf, and in
the stocking of product merchandise within the bay.
See ECF No. 62-5 at 18; ECF No. 62-7 at 4. While the
vendors that would initially "do a set" would not
"need much assistance from the store personnel, "
ECF No. 62-5 at 16. a Home Depot store manager would
"sign oft" on it. ECF No. 62-5 at 19, Yates
explains that "[n]ormally when a set is done . . .
whoever did the set would go over it with whoever the manager
is on duty and if it would be me or whomever, just go over
everything and. you know, show the planogram and everything
is correct, if they're missing anything, they'll let
us know, and so on." ECF No. 62-5 at ¶
Depot also publishes "Standards for Merchandise on Floor
or Shopping Level." ECF No. 62-9 at 2. Among other
matters, these standards address "securing
merchandise." which includes providing for the use of
cables or beams to prevent front-facing merchandise, such as
shelving units, from falling forward. Id. At all
times relevant to the action. Home Depot employees completed
a daily "Store Readiness Checklist Report."
see ECF No. 62-10 at 2-6. and did a "safety
walk." ECF No. 62-15 at 4. The safety walk took about
8-10 minutes per aisle. ECF No. 62-15 at 4. These readiness
checks did not. however, require the employees to climb up
and actually physically inspect the displays. See
ECF No. 62-7 at 8. All the inspections were done visually and
from ground level. ECF No. 59-5 at 12. As employee Zachary
Jewell explains, "[i]t"s more us walking by and
doing a visual and seeing, hey, there's something
dangling or there's something that doesn't look right
on the display, and seeing something like that, then we go
from there." ECF No. 62-7 at 8. ECF No. 62-10 at 4-5.
Store Readiness Checklist is a five-page spreadsheet covering
seventeen different departments, including hardware, kitchen
& bath, decor, and others. ECF No. 62-10 at 2-6. The
employee completing the Checklist writes "Y" or
"N" in response to a series of conditions. For
example, in D59 Decor, the employee must verify that the
"fa]isles [are] clear of empty pallets, debris,
water." that there is "no leaning or protruding
merchandise." and that the "hand stacked
merchandise [is] in overhead stable and no higher than 4
ft." ECF No. 62-10 at 5. The Checklist from October 30.
2011. the day of the incident, indicates all "Y"
responses and zero "N" responses. Id., at
action. Plaintiff alleges claims of negligence and premises
liability against Home Depot. See ECF No. 13. Home
Depot has moved for summary judgment. ECF No. 59. In
opposition to Defendant's Motion for Summary Judgment.
Plaintiff has provided the preliminary report of J. Terrence
Grisim. who Plaintiff has designated as an expert in retail
safety. ECF No. 62-13 at 2 6. Defendant has moved to strike
Plaintiffs expert disclosure and prevent Grisim from
testifying. ECF No, 65. Before addressing whether Plaintiff
has created a genuine issue of material fact, it is
appropriate to first consider the admissibility of Plaintiffs
MOTION TO STRIKE EXPERT TESTIMONY
Standard of Review
Rule of Evidence 702, which governs the admissibility of
expert testimony. provides that:
witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) The expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue:
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and