United States District Court, D. Maryland
Catherine C. Blake, United States District Judge.
before the court are a motion for summary judgment and a
consent motion to continue trial, both filed by defendant
Target Corporation. For the reasons stated below, the court
will grant the motion for summary judgment and will deny as
moot the consent motion to continue trial.
AND PROCEDURAL HISTORY
Nancy McManus ("Ms. McManus") has claimed that
defendant Target Corporation ("Target") negligently
maintained its walkways, causing her to fall and sustain
several injuries. On August 15, 2016, during a sunny summer
afternoon, Plaintiff tripped and fell while walking towards
the entrance of the Target store located at 7951 Nolpark
Court, Glen Burnie, Maryland. Ms. McManus claimed that she
fell headfirst onto the cement, ECF 26-3 at' p. 5,
resulting in a laceration around her mouth and a fracture in
her right wrist, ECF 26-7 at p. 11, as well as a black eye
and a bloody nose, ECF 26-3 at p. 5. Both at the time of the
incident and throughout this matter, Ms. McManus has admitted
that she does not know what caused her fall, but has
maintained that, after she fell, she observed an uneven seam
of concrete near where her fall originated. ECF 26-3 at pp.
7-9 ("My memory is not good on what caused me to
fall"). Through a retained expert, Ms. McManus has
identified nine separate "trip and fall hazards"
around the area where she fell, specifically locations where
the area's concrete surface height differentials ranged
from 0.25 inches to 0.75 inches. ECF 26-10 at p.
her fall, Ms. McManus received assistance from Target
employees Andrew Davies and Daniel Thompson, the latter of
whom observed Ms. McManus fall. ECF 26-4 at p. 7. Mr. Thompson
claimed that, though he was not sure, he believed Ms. McManus
either slipped on the inclined pavement or tripped over her
own feet. ECF 26-4 at p. 9. Later that day, Mr. Davies
completed a "Team Member Witness Statement" form,
on which he indicated that he was the first Target team
member to respond to Ms. McManus's fall, and that Ms.
McManus had told him she had "just slipped." ECF
21-5 at p. 2. A "Guest Incident Report" form
completed by another Target employee reported that Ms.
McManus said that she "tripped on the sidewalk,"
leading to her fall. ECF 26-2 at p. 3. Ms. McManus received
emergency and follow-up medical treatment for the injuries
she sustained from her fall.
April 2, 2018, Ms. McManus initiated suit against Target in
the Circuit Court for Anne Arundel County, claiming that she
was an invitee on Target's property and that Target's
negligence had caused her fall and resulting injuries. On
June 7, 2018, the case was removed to this court. On February
15, 2019, Target filed its motion for summary judgment. The
motion has been fully briefed and is ripe for the court's
Rule of Civil Procedure 56(a) provides that summary judgment
should be granted "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) (emphases added). "A dispute is
genuine if 'a reasonable jury could return a verdict for
the nonmoving party.'" Libertarian Party
of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013)
(quoting Dulaney v. Packaging Corp. of Am., 673 F.3d
323, 330 (4th Cir. 2012)). "A fact is material if it
'might affect the outcome of the suit under the governing
law.'" Id. (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). Accordingly,
"the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment[.]"
Anderson, 477 U.S. at 2Al-A%. The court
must view the evidence in the light most favorable to the
nonmoving party, Tolan v. Cotton, 134 S.Ct. 1861,
1866 (2014) (per curiam) (citation and quotation omitted),
and draw all reasonable inferences in that party's favor,
Scott v. Harris, 550 U.S. 372, 378 (2007) (citations
omitted); see also Jacobs v. N.C. Admin. Office of the
Courts, 780 F.3d 562, 568-69 (4th Cir. 2015). At the
same time, the court must "prevent factually unsupported
claims and defenses from proceeding to trial."
Bonchat v. Bait. Ravens Football Club, Inc., 346
F.3d 514, 526 (4th Cir. 2003) (quoting Drewitt v.
Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993)).
McManus's sole cause of action is negligence based on
premises liability. To succeed on a claim of negligence in
Maryland, "a plaintiff must prove: (1) that the
defendant was under a duty to protect the plaintiff from
injury, (2) that the defendant breached that duty, (3) that
the plaintiff suffered actual injury or loss, and (4) that
the loss or injury proximately resulted from the
defendant's breach of the duty." Rybas v.
Riverview Hotel Corp., 21 F.Supp.3d 548, 560 (D. Md.
2014) (internal citations and quotations marks omitted).
"Under Maryland law, the liability of owners of real or
personal property to an individual injured on their property
is dependent on the standard of care owed to the individual
and that in turn is contingent upon a determination of the
individual's status while on the property[.]"
Hall v. Washington Metro. Transit Auth., 619 Y.
Supp. 2d 629, 632 (D. Md. 2010) (internal citations and
quotation marks omitted). Further, "[t]here are
generally four classifications regarding the status of a
person entering upon land: invitee, licensee by invitation,
bare licensee, and trespasser." Id., (internal
neither party has contested Ms. McManus's status as a
business invitee on August 15, 2016, thereby satisfying the
first factor by establishing that Target owed Ms. McManus the
duty "to use reasonable and ordinary care to keep the
premises safe for the invitee and to protect the invitee from
injury caused by an unreasonable risk which the invitee, by
exercising ordinary care for his own safety, will not
discover.'" Duncan-Bogley v. United States,
356 F.Supp.3d 529, 538 (D. Md. 2018) (quoting Casper v.
Charles F. Smith &, Son, Inc., 316 Md. 573, 560
(1989));see also Rybas, 21 F.Supp.3d at
561 (a landowner or occupier is required to employ
"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."
(citing Casper, 316 Md. at 582) (internal quotation
marks and further citation omitted)). Further, the parties do
not disagree regarding either the existence or the extent of
Ms. McManus's injuries that resulted from her fall,
satisfying the third negligence factor.
parties, however, disagree regarding whether Target breached
its duty of care and whether any such breach served as the
proximate cause of Ms. McManus's accident. "The
duties of a business invitor  include the obligation to
warn invitees of known hidden dangers, a duty to inspect, and
a duty to take reasonable precautions against foreseeable
dangers." Rybas, 21 F.Supp.3d at 561 (citing
Tennant v. Shoppers Food Warehouse Md. Corp., 115
Md.App. 381, 388 (1997)). "An owner or occupier
ordinarily has no duty to warn the invitee of open, obvious,
and patent dangers." Duncan-Bogley, 356
F.Supp.3d at 538 (citing Casper, 316 Md. at 582).
Here, Target argues that any unevenness of the concrete
walkway was open and obvious and did not pose an unreasonable
risk; thus, Target's failure to fix the uneven concrete
did not constitute a breach of the duty it owed to Ms.
court agrees. As noted in Dimcan-Bogley, "minor
variations in ground surface generally do not amount to
unreasonable risks because pedestrians customarily and
ordinarily expect to encounter such variations in
terrain." 356 F.Supp.3d at 538 (internal citations
omitted). The court concluded that, without additional
complicating factors such as obstructed view, loose pavement,
or the presence of snow or ice, a 0.75-inch height
differential in a walkway was not a dangerous defect that
posed an unreasonable risk to pedestrians which should give
rise to tort liability. Id. at 539.
Dimcan-Bogley ruled that normal cracks, holes, and
uneven pavement surfaces are open and obvious defects, and
therefore are not the kinds of hazards against which
landowners or occupiers must protect visitors. Id.
at 539-40. When faced with open and obvious dangers, invitees
are expected to exercise ordinary caution and judgment that
will permit them to observe and avoid such dangers.
Id. at 540 (internal citations and quotation marks
omitted). As a result, invitees such as Ms. McManus are
expected to traverse uneven or imperfect pavement while
exercising ordinary caution and judgment, and the
invitee's failure to do so does not result in tort
liability on the part of the invitor. In so holding,
Dimcan-Bogley relied on a long line of authority
which Ms. McManus unsuccessfully attempted to distinguish.
See Gellerman v. Shawan Rd. Hotel Ltd. P`Ship, 5
F.Supp.2d 351 (D. Md. 1998); Schaefer v. United
States, No. PX-15-02690, 2017 WL 2506174 (D. Md. ...