United States District Court, D. Maryland
K. Bredar Chief Judge
Duncan-Bogley ("Plaintiff) brought this negligence
action against the United States ("the Postal
Service") and SDC New Ridge Parkway and Benson Avenue -
Maryland, Inc., ("SDC") (collectively
"Defendants") after she fell outside of the U.S.
Post Office in Hanover, Maryland. Now pending before the
Court are SDC's Motion for Summary Judgment and the
Postal Service's Motion to Dismiss for Failure to State a
Claim or, in the Alternative, for Summary Judgment, filed
pursuant to Federal Rules of Civil Procedure 12(b)(6) and
56. (ECF Nos. 43, 44.) The issues have been briefed
(ECF Nos. 43-1, 44-1, 45-1, 46-1, 51, 52), and no hearing is
required, see Local Rule 105.6 (D. Md. 2016). For
the reasons stated below, the Motions will be reviewed under
Rule 56 and will be granted.
Factual and Procedural
18, 2013, Plaintiff went to the U.S. Post Office in Hanover,
Maryland. (USA M.S.J. Ex. I at 20:9-26:5, ECF No. 44-11; Ex.
J at 5-6, ECF No. 44-12.) It was mid-morning and sunny. (USA
M.S.J. Ex. I at 20:9-20:11, 26:4-26:5, ECF No. 44-11.) She
retrieved mail from her business' P.O. Box and then went
to exit the office. (Id. at 20:12-21:21.) As
Plaintiff was leaving, a man opened the door for her.
(Id. at 33:21-34:11.) Then, when she exited the
threshold, her left foot landed on the uneven intersection of
two concrete slabs outside of the Post Office, causing her to
trip and sustain injuries. (Id.; see also USA M.SJ.
Ex. J at 5-7, ECF No. 44-12.)
parties' experts agree that the difference in height
between the concrete slabs where Plaintiffs foot landed was
approximately three quarters of an inch. (See SDC
M.SJ. Ex. D, ECF No. 43-5; Opp'n to SDC M.S.J. Ex. 3 at
75:12-76:13, ECF No. 46-2.) Plaintiff was not looking down
when she exited the Post Office; she was "more paying
attention to the man opening the door." (USA M.S.J. Ex.
I at 34:16-37:11, 170:15-170:19, ECF No. 44-11.) She
acknowledged that, if she had been looking down, she would
have seen the uneven intersection of the two pieces of
sidewalk. (Id. at 34:16-37:11.) There was nothing
obstructing Plaintiffs view of the sidewalk. (Id. at
39:7-3 9:17.) There have been no known similar incidents in
recent years. (SDC M.S.J. Ex. G at 252:20-254:5, ECF No.
had visited the U.S. Post Office in Hanover several times
before July 18, 2013. (USA M.SJ. Ex. I at 159:4-159:15, ECF
No. 44-11.) She never noticed the uneven sidewalk on her
prior visits, despite the fact that it is immediately in
front of the entrance to the Post Office. (Id. at
46:19-47:3, 159:16-159:20; ECF No. 44-11 at 16.) By contrast,
two of Plaintiffs employees, Karen Stelmack and Kim Goins,
both stated in their depositions that they observed the
sidewalk defect during their prior visits to this Post
Office. (USA M.S.J. Ex. N at 13:2-l3:22, ECF No. 44-16; Ex. O
at 11:13-19:20, ECF No. 44-17.) Indeed, Stelmack even stated
that she was able to observe the "difference in
level" in the sidewalk when she exited the Post Office.
(USA M.SJ. Ex. O at 19:4-19:20, ECF No. 44-17.) Stelmack
believes that the sidewalk defect has been there "for a
long time." (Id. at 11:13-12:1.) Similarly,
Goins stated that she noticed the "crack" on her
first visit to the U.S. Post Office in Hanover "a couple
years ago." (USA M.S.J. Ex. N at 13:7-13:22, ECF No.
Postal Service leases a single suite within a commercial
strip located at 7476 New Ridge Road in Hanover, Maryland.
(USA M.S.J. Ex. A at 43:2-44:1, ECF No. 44-3.) The commercial
strip is owned by SDC. (See USA M.S.J. Ex. C, ECF
No. 44-5.) The Postal Service does not lease the sidewalk in
front of its office from SDC. (See USA M.S.J. Ex. A
at 33:4-35:11, ECF No. 44-3; Ex. C, ECF No. 44-5; Ex. D, ECF
No. 44-6.) Rather, the sidewalk is a common area retained by
SDC that stretches in front of the other businesses and
properties in SDC's commercial strip. (USA M.S.J. Ex. A
at 29:14-42:11, 91:14-91:18, ECF No. 44-3.) SDC's former
property manager stated in her deposition that there were
"maybe six or seven" tenants in the strip. (USA
M.S.J. Ex. B at 54:20-55:15, ECF No. 44-4.) Under the express
terms of the lease between the Postal Service and SDC, SDC is
responsible for "repairs to all common or joint use
areas," and, specifically, "repairs to
sidewalk." (USA M.SJ. Ex. C, ECF No. 44-5.) The Postal
Service, along with the other tenants in SDC's commercial
strip, paid a common area maintenance fee with which SDC,
through a property manager, maintained the exterior of its
commercial strip. (USA M.SJ. Ex. A at 38:1-42:11, ECF No.
April 15, 2016, Plaintiff and her husband, James Bogley,
filed the instant suit against Defendants for negligence and
loss of consortium. (ECF No. 1.) They filed suit against the
Postal Service pursuant to the Federal Tort Claims Act
("FTCA"), 28 U.S.C. §§ 2671-2680 (2012).
The Court dismissed their loss of consortium claim for
failure to exhaust administrative remedies as required under
the Federal Tort Claims Act and, therefore, dismissed James
Bogley from the case. (ECF No. 20.) The parties then
conducted discovery and Defendants filed the pending Motions.
(ECF Nos. 43, 44.) Plaintiff opposed both Motions (ECF Nos.
45, 46), and Defendants replied (ECF Nos. 51, 52).
Postal Service moves for dismissal pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure or, in the
alternative, for summary judgment pursuant to Rule 56, in
support of which it proffers several exhibits. "A motion
styled in this manner implicates the court's discretion
under Rule 12(d) of the Federal Rules of Civil
Procedure," Soger v. Hous. Comm'n, 855
F.Supp.2d 524, 542 (D. Md. 2012), which provides that
"[i]f, on a motion under Rule 12(b)(6)... matters
outside the pleadings are presented to and not excluded
by the court, the motion must be treated as one for
summary judgment under Rule 56" Fed. R. Civ. P.
12(d) (emphasis added). Where, as here, the parties have had
the opportunity to undertake discovery, the Court will
construe the Postal Service's motion as one for summary
judgment. Cf. Harrods Ltd v. Sixty Internet Domain
Names, 302 F.3d 214, 244 (4th Cir. 2002)
("Generally speaking, 'summary judgment [must] be
refused where the nonmoving party has not had the opportunity
to discover information that is essential to his
opposition.'") (alteration in original) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The burden is on the moving party to
demonstrate the absence of any genuine dispute of material
fact. Adickes v. S.H. Kress & Co., 398 U.S. 144,
157 (1970). If sufficient evidence exists for a reasonable
jury to render a verdict in favor of the party opposing the
motion, then the dispute is material and genuine, and summary
judgment should be denied. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). At the summary judgment
stage, "courts must view the evidence in the light most
favorable to the nonmoving party and refrain from weighing
the evidence or making credibility determinations."
Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888
F.3d 651, 659 (4th Cir. 2018). III. Analysis
Plaintiffs sole cause of action is negligence based on
premises liability, and to prevail she must demonstrate that:
(1) Defendants owed Plaintiff a duty to protect her from
injury; (2) Defendants breached that duty; (3) Plaintiff
suffered actual injury or loss; and (4) Plaintiffs injury or
loss proximately resulted from the Defendants' breach of
duty. Rosenblatt v. Exxon Co., U.S.A.,
642 A.2d 180, 188 (Md. 1994).
Existence of a Duty
is defined as "an obligation, to which the law will give
recognition and effect, to conform to a particular standard
of conduct toward another." Hemmings v. Pelham
WoodLLLP, 826 A.2d 443, 451 (Md. 2003) (citations
omitted). Whether a duty is owed is a legal determination,
"ordinarily for the court rather than the jury to
decide." Id. (quoting W. Page Keeton, et al.,
Prosser & Keeton on Torts § 37, at 236 (5th
argues that, as an invitee, Defendants had a duty to protect
her from the unreasonable risk posed by the uneven sidewalk.
(Opp'n to USA M.S.J, at 5-12, ECF No. 45-1; Opp'n to
SDC M.SJ. at 6, ECF No. 46-1.) "An invitee is in general
a person invited or permitted to enter or remain on
another's property for purposes connected with or related
to the owner's business." Sherman v. Suburban
Trust Co.,384 A.2d 76, 79 (Md. 1978). SDC does not
dispute that it owed Plaintiff a duty because she was on its
premises for purposes related to its tenant's business at
the time of the incident. (See SDC M.S.J. Mem. Supp.
at 11, ECF No. 43-1.) The Postal Service, on the other hand,
argues that summary judgment should be granted in its favor
because it did not own, lease, or control the sidewalk area
where Plaintiff fell and, therefore, did ...