United States District Court, D. Maryland
Xinis United States District Judge.
in this tort action is a Motion for Summary Judgment filed by
Defendant United States of America (ECF No. 27). The issues
are fully briefed, and the Court now rules pursuant to Local
Rule 105.6 because no hearing is necessary. For the reasons
stated below, Defendant's Motion for Summary Judgment is
December 1, 2012, Plaintiffs Sheryl Lynn Schaefer
(“Mrs. Schaefer”) and Thomas G. Schaefer
(“Mr. Schaefer, ” and collectively,
“Plaintiffs”) visited the Naval Air Station
Patuxent River to attend a Christmas craft fair at the Drill
Hall. Compl., ECF No. 1 at 3. The weather was clear and
sunny, and Mrs. Schaefer was wearing tennis shoes. Mrs.
Schaefer Dep., ECF No. 27-2 at 20.
walking from the parking lot to the Drill Hall, Mrs. Schaefer
followed “a couple feet” behind her husband in a
single-file line on the sidewalk. Mrs. Schaefer Dep., ECF No.
27-2 at 21. Also on the sidewalk was a single-file line of
individuals who were exiting the craft fair and walking
parallel to the line of people whom the Plaintiffs were
walking behind. Mrs. Schaefer Dep., ECF No. 27-2 at 21. The
pedestrians were far enough apart from one another that no
one was physically touching. Mrs. Schaefer Dep., ECF No. 27-2
at 22. Mrs. Schaefer was looking over her husband's left
shoulder at those exiting the fair and walking slowly in an
effort to not run into him. Mrs. Schaefer Dep., ECF No. 27-2
at 21. As Plaintiffs neared the Drill Hall, Mrs. Schaefer
“stepped down and [she] felt something uneven, ”
and “went down onto the sidewalk.” Mrs. Schaefer
Dep., ECF No. 27-2 at 22. Neither Mr. or Mrs. Schaefer had
noticed anything unusual about the sidewalk before Mrs.
Schaefer fell. Mrs. Schaefer Dep., ECF No. 27-2 at 24.
Mrs. Schaefer's fall, Plaintiffs noticed that the
concrete was cracked and misaligned. At its worst, the
misaligned pieces created a lip with a depth of about one to
one-and a-half inches, as depicted in the photos
below. Id.; Mr. Schaefer Dep., ECF No.
27-3 at 14. Defendant admits constructive knowledge of the
sidewalk's condition. Willard Dep., ECF No. 29-1 at 5.
27-5 at 1; ECF No. 27-4 at 2.
brought suit under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2671, on September 14,
2015 alleging that Defendant is liable for failing to repair
or warn of the defective sidewalk which caused Mrs. Schaefer
to fall. Mrs. Schaefer is claiming as damages her medical
expenses, lost earnings, physical pain and mental anguish,
and other economic and non-economic injury. Compl., ECF No. 1
at 5. Plaintiffs also bring a claim of loss of consortium,
alleging that the fall caused injury to their marital
relationship including “loss of society, affection,
assistance, companionship, and loss of sexual
relations.” Id. In total, Plaintiffs claim $2,
000, 000 in damages.
November 30, 2016, Defendant moved for summary judgment,
arguing that because the crack in the sidewalk did not
present an unreasonable risk of injury and was obvious to
everyone including Plaintiff, Defendant cannot be liable for
Mrs. Schaefer's injuries. ECF No. 29. For the reasons
that follow, the Court agrees.
STANDARD OF REVIEW
judgment is properly granted only where no genuine dispute
exists 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). If any material factual issue may
be reasonably resolved in favor of either party, summary
judgment is inappropriate. Liberty Lobby, 477 U.S.
at 250. The moving party bears the burden of showing no
genuine issue of disputed material fact, which may include
demonstrating that the Plaintiff has failed to marshal
sufficient evidence to sustain her burden on any essential
element. Celotex, 477 U.S. at 322-23. A “mere
scintilla” of proof is insufficient to defeat the
motion. Peters v. Jenney, 327 F.3d 307, 314 (4th
Cir. 2003). Conclusory statements devoid of evidentiary
foundation also are not to be considered. Tasciyan v.
Med. Numerics, 820 F.Supp.2d 664, 670 (D. Md. 2011). All
facts must be construed in the light most favorable to the
nonmoving party. Scott v. Harris, 550 U.S. 372, 378