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Duncan-Bogley v. United States

United States District Court, D. Maryland

December 7, 2018

MICHELLE DUNCAN-BOGLEY Plaintiff,
v.
UNITED STATES OF AMERICA, et al. Defendants.

          MEMORANDUM

          James K. Bredar Chief Judge

         Michelle 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.

         I. Factual and Procedural Background[1]

         On July 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.)

         The 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. 43-8.)

         Plaintiff 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. 44-16.)

         The 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. 44-3.)

         On 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).

         II. Legal Standard

         The 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 n.5 (1986)).

         "The 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.[2] Rosenblatt v. Exxon Co., U.S.A., 642 A.2d 180, 188 (Md. 1994).

         a. Existence of a Duty

         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 ed., .1984)).

         Plaintiff 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 ...


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