United States District Court, D. Maryland
W. TITUS, UNITED STATES DISTRICT JUDGE.
February 16, 2017, Plaintiff Linda Sue Shope
(“Shope”) filed this negligence action in the
Circuit Court for Prince George's County against
Defendant Costco Wholesale Corporation
(“Costco”). ECF No. 2. The Defendants timely
removed to this Court, ECF No. 1, and after discovery, moved
for summary judgment, ECF No. 22. The issues have been fully
briefed, and no hearing is necessary. Local Rule 105.6. For
the reasons that follow, Costco's Motion for Summary
Judgment shall be granted.
“slip-and-fall” claims are common in personal
injury lawsuits, the instant case involves the rare
“slip-but-no-fall” claim. On a rainy April 15,
2014, Shope and her fiancé, Frank Stokes
(“Stokes”), approached the Costco location in
Brandywine, MD at approximately 4:15 p.m. See ECF
Nos. 22-1 at 1-2; 23 at 6. While in the store's covered
exterior vestibule where shopping carts are stored and
membership cards are checked, Shope moved out of the way of a
person pushing a row of shopping carts. See ECF Nos.
22-1 at 2; 23 at 7. In the process, Shope stepped on wet
cardboard and slipped. Id. However, Stokes caught
Shope, preventing her from falling to the ground.
See ECF Nos. 22-1 at 2; 22-3 at 11; 22-4 at 9. Shope
knows neither where the cardboard came from nor how long it
had been there. See ECF Nos. 22-1 at 3-4; 22-3 at
9-11. Immediately thereafter, Shope and Stokes entered the
main store and reported the incident to a manager and filled
out an incident report. See ECF Nos. 22-1 at 2-3;
22-3 at 12. The record indicates that Costco employees
conducted regular inspections of the store's premises,
including an inspection that “began at 3:36 p.m., and
concluded at 4:10 p.m., lasting 34 minutes and ending just
five minutes before Shope's slip incident.”
See ECF No. 22-1 at 4-5; 22-5; 22-6.
January 30, 2018, after discovery had concluded, Costco moved
for summary judgment. ECF No. 22. On February 13, 2018, Shope
responded in opposition to the Motion, ECF No. 23, and on
February 27, 2018, Costco replied in support of its Motion,
ECF No. 24. In short, Costco denies any liability because
Shope failed to demonstrate actual or constructive notice of
the dangerous condition. See ECF No. 22-1 at 5.
Shope rebuts by asserting that Costco “created the
dangerous condition, and therefore is negligent.”
See ECF No. 23 at 7 (internal quotations omitted)
(citing Moulden v. Greenbelt Consumer Servs., 210
A.2d 724, 726 (Md. 1965).
Standard of Review
judgment is proper under Fed.R.Civ.P. Rule 56(a) if there is
no genuine dispute over any material facts, and the moving
party is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Francis
v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302
(4th Cir. 2006). A material fact is one that “might
affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986). A dispute of material fact is genuine if the
evidence would allow the trier of fact to return a verdict
for the nonmoving party. Id. When considering a
summary judgment motion, the court has “an affirmative
obligation . . . to prevent ‘factually unsupported
claims or defenses' from proceeding to trial.”
Felty v. Grave-Humphreys Co., 818 F.2d 1126, 1128
(4th Cir. 1987) (citing Celotex, 477 U.S. at
323-24). Thus, the court may only rely on facts supported in
the record, not assertions made in the pleading. Id.
Moreover, the court must view all facts and make all
reasonable inferences in the light most favorable to the
nonmoving party. Matsuhita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving
party must present more than a “mere scintilla”
of evidence to demonstrate a genuine issue of material fact
that would preclude summary judgment. Anderson, 477
U.S. at 252.
Shope Cannot Establish a Claim for Negligence
Maryland law, “a person on the property for a purpose
related to the possessor's business” is an invitee,
and a property owner owes him or her “a duty of
ordinary care to keep the property safe.” Rivas v.
Oxon Hill Joint Venture, 744 A.2d 1076, 1081 (Md. Ct.
Spec. App. 2000). However, “[s]torekeepers are not
insurers of their customers' safety, and no presumption
of negligence arises merely because an injury was sustained
on a storekeeper's premises.” Giant Food, Inc.
v. Mitchell, 640 A.2d 1134, 1135 (Md. 1994). “The
burden is upon the customer to show that the proprietor
created the dangerous condition or had actual or constructive
knowledge of its existence.” Moulden, 210 A.2d
724, 726 (Md. 1965). For the latter option, the customer must
not only show “that a dangerous condition existed, but
also that the proprietor had actual or constructive knowledge
of it, and that that knowledge was gained in sufficient time
to give the owner the opportunity to remove it or to warn the
invitee.” Rehn v. Westfield Am., 837 A.2d 981,
984 (Md. Ct. Spec. App. 2003) (internal quotations omitted).
Under this standard, courts balance the nature, scope,
prevalence, and foreseeability of the condition in
determining what constitutes sufficient time. See
Id. at 984-85.
asserts that Costco “created” the dangerous
condition because she slipped as she was moving out of the
way of an employee pushing a row of shopping carts.
See ECF No. 23 at 7. However, this argument confuses
what constitutes the creation of a dangerous condition. Why
Shope was walking along one path through the vestibule versus
another is wholly unrelated to the creation of the dangerous
condition itself-wet cardboard on the ground. Shope has
failed to allege any facts or point to any evidence that
indicates that it was Costco (versus another patron) who
caused the wet cardboard to be present on the ground.
Accordingly, Shope cannot establish that Costco created the
for Shope's claim to survive, she must establish that
Costco was on constructive or actual notice of the wet
cardboard. Quite simply, Shope has failed to do so. Shope
does not even attempt to argue actual notice, see
Id. at 7-8, because she does not know how the cardboard
got there or how long it had been there, see ECF No.
22-1 at 3-4, 9. Shope instead avers that the greeter
“positioned approximately 20 feet from the
cardboard” would have discovered the dangerous
condition through “the exercise of reasonable
care.” See ECF No. 23 at 7-8. However,
“[t]he mere fact that an employee was within close
proximity to a dangerous condition is not sufficient evidence
to establish that the store owner had constructive
notice.” See Sinnott v. Wal-Mart, Inc., No.
99-cv-2494, 2000 WL 33281683, at *3 (D. Md. July 14, 2000),
aff'd sub nom. Sinnott v. Wal Mart Stores, Inc.,
3 F. App'x 128 (4th Cir. 2001). Furthermore, any
contention of constructive notice is severely undercut by the
fact that Costco regularly performed inspections of the
premises-the most recent of which ended a mere five minutes
before the slip incident. Rather, the nature and temporal
proximity of Costco's actions establish reasonable care
given the rainy conditions.
is not an “insurer” of Shope's safety, and
“no presumption of negligence arises” merely
because she sustained an injury on Costco's premises.
Mitchell, 640 A.2d at 1135. Drawing all inferences
in her favor, Shope's negligence claim fails because she
cannot establish that Costco created the dangerous condition
or was on actual or constructive notice of its existence.
Shope's Negligence Claim Cannot Succeed Due to