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Wiseman v. Wal-Mart Stores, Inc.

United States District Court, D. Maryland

August 4, 2017

WAL-MART STORES, INC., Defendants.



         Plaintiff 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 be denied.[1]


         The 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).

         Another 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 83:19-84:13).

         As a 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).


         Rule 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).

         III. ANALYSIS

         Since 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. pg. 6).

         The 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).

         Despite 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 ...

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