United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
W. TITUS UNITED STATES DISTRICT JUDGE
case arises out of a trip-and-fall, in which Plaintiff Marc
Rosemond (“Rosemond”) suffered injuries after
tripping on a loosened cable that lay across concrete steps
outside of his residence. See ECF No. 27. In order
to provide television service to one of Rosemond's
neighbors, the cable was allegedly placed above ground
temporarily until a more permanent cable could be buried
under the sidewalk and connected to the provider's hub.
See Id. Rosemond asserts that his injury was caused
by the negligent placement of the cable by Defendants Verizon
Maryland, LLC (“Verizon”), Dycom Industries, Inc.
(“Dycom”), Lambert's Cable Splicing Company,
LLC (“Lambert”), and Wire Wizards, Inc.
(“Wire Wizards”). See id.
7, 2018, Wire Wizards filed a Motion for Summary Judgment and
Request for Hearing. See ECF No. 60. On May 18, 2018, Rosemond
responded in opposition to that Motion. See ECF No.
61. Based upon clerical errors and omitted pages, on May 21,
2018, Rosemond moved for leave to amend and correct his
opposition brief. See ECF Nos. 62,
1, 2018, Wire Wizards replied in support of its original
Motion. See ECF No. 66. The issues have been fully
briefed, and no hearing is necessary. Local Rule 105.6. For
the reasons that follow, Wire Wizards' Motion for Summary
Judgment shall be denied.
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.
Wizards asserts that there is no evidence that it
“installed, moved, touched, disturbed or otherwise did
anything to the temporary cable wire” that caused
Rosemond's tripping injury. See ECF No. 60-1 at
13. However, Wire Wizards supporting recitation of various
witnesses' testimony merely offers the side of the story
that is most favorable to it, and neglects the reasonable
inferences that exist in this case's remaining evidence.
See Id. at 4-11. Indeed, this case rises and falls
on the judicial standard for summary judgment-specifically,
“drawing all inferences in favor of the nonmoving
party.” Hanwha Azdel, Inc. v. C & D Zodiac,
Inc., 617 Fed.Appx. 227, 234 (4th Cir. 2015). Here, the
nonmoving party is the injured plaintiff, Rosemond. And while
there is no direct evidence or eye-witness testimony that
Wire Wizards loosened the temporary cable and strew it over
the concrete steps, a juror could infer such a finding based
on a reasonable construction of the evidence in the record.
uncontested that a “Verizon maintenance technician . .
. placed the black temporary cable on September 17,
2014.” See ECF No. 62-3 at 11 (Verizon's
Answers to Interrogatories). There is, at a minimum, some
evidence that the temporary cable was properly and safely
secured by the technician with the use of metal
“J-hooks.” See id.; see also
Id. at 33-39 (Deposition of the Verizon maintenance
technician). It is uncontested that on September 19, 2014, a
former Wire Wizards employee “buried a permanent fios
cable . . . which ran under the sidewalk.” See
Id. at 13 (Wire Wizards' Answers to
Interrogatories). There is, at a minimum, some evidence that
Wire Wizards was the last service provider to attend to the
concrete-step area where the temporary cable resided. See
id.; see also Id. at 11 (Verizon's Answers
to Interrogatories). And there is evidence that Rosemond
tripped on the temporary cable, injuring himself in the fall.
See Id. at 23-31 (Deposition of Rosemond).
addition to this corroborating evidence, the record further
includes photographs of the area where the temporary cable
was allegedly placed initially, see Id. at 40, the
overlapping area where the permanent cable was allegedly
buried, see Id. at 20-22, and the final destination
of where the strewn temporary cable ended up, see
Id. at 32. Viewing all of this evidence in a light most
favorable to Rosemond, and drawing all inferences in favor of
Rosemond, a reasonable juror could infer that Wire Wizards
must have negligently dislodged the temporary cable into an
unsafe position that resulted in Rosemond's tripping
the evidence that Wire Wizards points to may be used at trial
to strengthen its case and attack the likelihood of its
negligence, it may also be the subject of questionable
credibility. See, e.g., id. at 41-43
(Deposition of the Wire Wizards' employee, who
contradicts himself- first saying that he did not remember
whether he saw the temporary cable-and then later saying that
he did remember seeing it and consciously avoided disturbing
it). Accordingly, granting summary judgment in favor of
either party at this juncture would be premature.
foregoing reasons, Wire Wizards' Motion for Summary
Judgment shall be denied. Accordingly, it is, this 12th day
of June, 2018, by the United States District Court for the
District of Maryland, ORDERED, that
Plaintiff's Motion for Leave to Amend Plaintiff's
Memorandum in Opposition to the Motion for Summary Judgment
of Defendant Wire Wizards, Inc. [ECF No. 62] is hereby
GRANTED; and it is further
that Defendants' Motion for Summary Judgment and Request
for Hearing [ECF No. 60] is ...