United States District Court, D. Maryland
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE
Elizabeth Wiseman (“Plaintiff”) filed this
premises liability action against Defendants Wal-Mart Stores,
Inc. and Wal-Mart Stores East, LP (collectively
“Defendants”). Pending before this Court is
Defendants' motion for summary judgment. [ECF No. 32].
The issues have been fully briefed, [ECF Nos. 32, 34, 37],
and no hearing is necessary. See Local Rule 105.6
(D. Md. 2016). For the reasons stated below, the motion will
facts below are taken in the light most favorable to
Plaintiff, the non-moving party. On June 28, 2014, around
2:30 P.M., Plaintiff and her granddaughter, Ayanna Wiseman,
went shopping at the Wal-Mart store in Owings Mills,
Maryland. (Depo. Wiseman 53:11-17, 57:15-58:1). Sometime
before 3:40 P.M., Plaintiff, while approaching the end of the
detergent aisle, slipped and fell in a dark liquid on the
floor. (Id. 60:8-15, 64:21-65:2). Plaintiff
testified that at the time of her fall she was looking
straight ahead “to the next aisle. (Id.
60:4-21). As a result, she did not observe any foreign
substance on the floor. Id. Plaintiff also admitted
that she did not know the source of the liquid, nor how long
the liquid had been on the floor prior to her fall.
(Id. 69:10-12). Plaintiff did not observe any
foreign objects or open merchandise in the aisle near the
spill that could have suggested the source of the liquid.
(Id. 67:18-21; 68:1-13). After Plaintiff fell,
however, she noticed that both her hands and her pants were
wet. (Id. 62:1-4). Moreover, Plaintiff was able to
recall the color and makeup of the liquid, testifying that it
had a thin texture, a dark color, and the consistency of a
soda beverage. (Id. 67:10-17).
customer, Gloria Pleet, witnessed Plaintiff's fall and
immediately came to her aid. (Id. 73:2-14).
Additionally, Wal-Mart employees, including Ruth Tibbs, a
support manager, and Richard Cunningham, an assistant
manager, arrived on the scene shortly after Plaintiff's
fall. (Tibbs Aff.; Cunningham Aff.). Another employee, Ms.
Kennedy, an asset protection associate, wrote a report of the
incident and took photos of the substance. (Def. Ans.
Interrog. No. 5). Plaintiff's family also took a picture
of the liquid that caused her fall. (Depo. Wiseman
result of severe and permanent injuries to her back, neck,
shoulder, and knee, Plaintiff filed the instant suit in the
Circuit Court for Baltimore County on November 2, 2016.
(Compl. pg. 1). The case was subsequently removed to
this Court. [ECF No. 1]. In her complaint, Plaintiff alleges
that Defendants breached their duty of care owed to her as a
business invitee by failing to: (1) exercise care and
caution, (2) maintain a safe environment by permitting a
dangerous condition to remain on the floor, (3) warn
Plaintiff of the dangerous condition, and (4) remedy the
condition. (Compl. at ¶¶ 7-9; 15-17). Plaintiff
also contends that Defendants had “actual and/or
constructive” knowledge of the unsafe condition and
nevertheless failed to warn of or remedy the situation.
(Id. at ¶¶ 9, 17).
56(a) of the Federal Rules of Civil Procedure states that
summary judgment “shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a). Defendants, as the moving
party, bear the burden of showing that there is no genuine
dispute of material facts. See Casey v. Geek Squad,
823 F.Supp.2d 334, 348 (D. Md. 2011). If Defendants establish
that there is no evidence to support Plaintiff's case,
the burden then shifts to Plaintiff to proffer specific facts
to show a genuine issue exists for trial. Id.
Plaintiff must provide enough admissible evidence to
“carry the burden of proof at trial.”
Id. at 349 (quoting Mitchell v. Data Gen.
Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993)). The mere
existence of a scintilla of evidence in support of
Plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for
Plaintiff. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). Moreover, a genuine issue of
material fact cannot rest on “mere speculation, or
building one inference upon another.” Casey,
823 F.Supp.2d at 349. Additionally, summary judgment shall be
warranted if the non-moving party fails to provide evidence
that establishes an essential element of the case. Plaintiff
“must produce competent evidence on each element of his
or her claim.” Miskin v. Baxter Healthcare
Corp., 107 F.Supp.2d 669, 671 (D. Md. 1999). If
Plaintiff fails to do so, “there can be no genuine
issue as to any material fact, ” because the failure to
prove an essential element of the case “necessarily
renders all other facts immaterial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986); see also
Casey, 823 F.Supp.2d at 348-349. In ruling on a motion
for summary judgment, a court must view all of the facts,
including reasonable inferences to be drawn from them,
“in the light most favorable to the party opposing the
motion.” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
the alleged tort and resulting injury occurred in Maryland,
Maryland substantive law determines Plaintiff's burden of
proof and what constitutes a “material fact.”
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.
487, 496-97 (1941); Branhaven, LLC v. BeefTek, Inc.,
965 F.Supp.2d 650, 664 (D. Md. 2013) (“When a claim is
based on state law, the choice of law rules are those of the
state in which the district court sits.”); Lab.
Corp. of America v. Hood, 911 A.2d 841, 845 (Md. 2006)
(holding that, in a tort action, Maryland applies the law of
the state where the injury occurred). Under well-established
Maryland negligence jurisprudence, a properly pleaded claim
of negligence includes four elements. Plaintiff must show 1)
that Defendants were under a duty to protect Plaintiff from
injury, (2) that Defendants breached that duty, (3) that
Defendants' breach of the duty proximately caused the
loss or injury suffered by Plaintiff, and (4) that Plaintiff
suffered actual loss or injury. See Troxel v. Iguana
Cantina, 201 Md.App. 476, 495 (2011). In premises
liability cases, the duty of care owed by a landowner is
determined by the legal classification of the entrant.
See Deboy v. City of Crisfield, 167 Md.App. 548, 555
(2006). That is, the duty of care varies according to whether
the visitor is an invitee, licensee, or trespasser.
Id. Here, both parties agree that Plaintiff's
legal classification is that of a “business
invitee.” (Mot. Sum. Judg. pg. 5; Opp. Mot. Sum. Judg.
business invitee is owed the highest duty of care. See
Deboy, 167 Md.App. at 555. A landowner must
“exercise reasonable care to protect the invitee from
injury caused by an unreasonable risk that the invitee would
be unlikely to perceive in the exercise of ordinary care for
his or her own safety, and about which the owner knows or
could have discovered in the exercise of reasonable
care.” Rybas v. Riverview Hotel Corp., 21
F.Supp. 3D 548, 561 (2014). More specifically, the duties of
a landowner to a business invitee include “the
obligation to warn invitees of known hidden dangers, a duty
to inspect, and a duty to take reasonable precautions against
foreseeable dangers.” Id. A business invitee
can reasonably assume that a landowner will exercise
reasonable care to “ascertain the condition of the
premises, and if [the landowner] discovers any unsafe
condition [he or she] will either take such action as will
correct the condition and make it reasonably safe or give a
warning of the unsafe condition.” Rawls v.
Hochschild, Kohn & Co., 207 Md. 113, 117-18 (1955).
the heightened duty owed to the business invitee, a landowner
is not required to be an insurer of the invitee's safety.
Id. at 118. The invitee has a duty to observe his or
her surroundings and “exercise due care for his or her
own safety.” Rybas, 21 F.Supp.3d at 562. As a
result, a landowner has no duty to warn against open,
obvious, and present dangers. Id. Nor does a
presumption of negligence arise solely because an invitee was
injured on a landowner's premises. See Rawls,
207 Md. at 118. Consequently, in order for an invitee to
recover damages for injuries sustained “from a fall in
a store caused by a foreign substance on a floor or stairway
[he or she must] produce evidence that the [landowner]
created the dangerous condition or had actual or constructive
knowledge of its existence.” Id. at 119. An
invitee is not required to show the landowner had actual
knowledge of the dangerous condition, but the invitee must
proffer evidence indicating the landowner,
could have discovered the condition by the exercise of
ordinary care [because] the dangerous condition existed for a
length of time sufficient to permit a person under a duty to
discover it if [he or she] exercised ordinary care [and the]
failure to discover it may in itself be evidence of
negligence sufficient to charge [the landowner] with
knowledge of it.
Id. at 120. The facts and circumstances of each
individual case shall determine whether the length of time
taken to remedy or warn of a dangerous condition confers
liability upon a landowner. Id. at 122. Evidence
indicating the “nature of the condition, its
foreseeable consequences, the means and opportunities of
discovering it, the diligence required to discover and
correct it, and the foresight which a person of ordinary
prudence would have exercised under similar
circumstances” should all be considered. Id.
In a motion for summary judgment, “where it might
reasonably be decided that the [landowner] could have
discovered the dangerous condition by the exercise of
reasonable care, the case should be submitted to the
jury.” Id. However, where no inference