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Barnes v. Costco Wholesale Corp.

United States District Court, D. Maryland

October 4, 2019



          James K. Bredar Chief Judge

         Plaintiff Margaret Barnes ("Plaintiff') brought this action against Defendant Costco Wholesale Corporation ("Defendant"), asserting a negligence claim arising from a slip-and-fall accident at Defendant's store in Arundel Mills, Maryland. (Compl, ECF No. 1-3.) Now pending before the Court is Defendant's Motion for Summary Judgment (M.S.J., ECF No. 32) and Plaintiffs Motion for Leave to File a Surreply (Mot. Sur., ECF No. 35.) The motions have been fully briefed. No. hearing is required. See Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, the Court will grant Defendant's Motion for Summary Judgment and deny Plaintiffs Motion for Leave to File a Surreply.

         I. Factual Background

         On May 7, 2017, Plaintiff went to the Costco Warehouse located in Arundel Mills, Maryland. (Barnes Depo. 72:2-9, ECF No. 32-4.) She arrived around 5:15 p.m. (Id. 72:19.) She shopped for approximately 45 minutes and as the clock approached 6:00 p.m., the loudspeaker announced that customers should start making their way to the checkout area because the store would be closing soon. (Id. 79:18-22, 80:1.) As Plaintiff searched for Tilex-the final item on her shopping list-she walked through the store's flower display area. (Id. 83-84.) The flower display area is an open-air bay that is not physically enclosed or covered. (Francis Aff. ¶ 3, ECF No. 32-5.) Customers are not required to seek Costco employee assistance to retrieve flowers stored in the buckets of water there. (Id. ¶ 7.)

         As Plaintiff walked through the flower display area, she slipped on a wet spot and fell. (Barnes Depo. 93:12-22.) Plaintiff had not seen any liquid on the floor prior to her fall. (Id. 90:18-22, 91:1-3.) She also had not seen any signs warning customers about the wet floor. (Id. 103:5-5, 104:5-8.) Several Costco employees stated they did observe two yellow caution signs near Plaintiff at the time she fell. (Costco Interrogs. 6, 20, ECF No. 32-2.) Photographs of the scene taken immediately after the incident show two yellow caution signs near the spill, though it is unclear whether the signs were placed before or after Plaintiffs fall. (Opp'n Mem. Ex. 3 at 7-10, ECF No. 33-3.) After the fall, Plaintiff could not definitively identify the liquid or its source, but speculated it was water that had come from a sprinkler in the flower display. (Barnes Depo. 96:4-13.) According to Costco, the flower display is not equipped with any sprinklers, nor do Costco employees manually change or refill the water in the display's buckets. (Francis Aff. ¶¶ 5-6.)

         Costco employees typically conduct hourly floor inspections to look for potential hazards in its stores. (Costco Interrogs. 4, 19.) When an employee uncovers a potential hazard, procedure calls for them to remain at the location of the hazard, report the problem to management, and either remedy the problem or await assistance. (Id.) A Costco employee conducted such an inspection between 5:01 p.m. and 5:44 p.m. and did not report any hazards in the flower display area. (Opp'n Mem. Ex. 3 at 3.) The employee did report one spill in another part of the store, but it was cleaned up at 5:35 p.m. (Id.) Plaintiff has no sense of how long the liquid was on the floor before she slipped on it: it could have been "one hour" or "a whole day." (Barnes Depo. 98:1-4.)

         Costco contends Plaintiffs lack of evidence about the source of the wet spot or the length of time the liquid was on the floor means Plaintiff cannot establish a prima facie case for negligence. (M.S.J. Mem. Supp. 8-15, ECF No. 32-1.)

         II. Summary Judgment Standard

         "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); Celotex Corp. v. Catrett, 477 U.S.317, 322 (1986) (citing predecessor to current Rule 56(a)). The moving party bears the burden of demonstrating 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 non-moving party, then a genuine dispute of material fact exists, and summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S.242, 248 (1986). But, the "mere existence of a scintilla of evidence in support of the [non-moving party's] position" is insufficient. Id. at 252. The non-moving party may not rest upon the pleadings but instead must, by evidentiary showing, set out specific facts showing a genuine dispute for trial. Fed.R.Civ.P. 56(c)(1). Where a genuine dispute exists, the facts and inferences derived therefrom must be viewed in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2009).

         III. Motion to File a Surreply

         Courts have discretion over whether to allow a party to file a surreply, see Local Rule 105.2(a), but they are generally disfavored. See Chubb & Son v. C & C Complete Servs., LLC, 919 F.Supp.2d 666, 679 (D. Md. 2013). "Surreplies may be permitted when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply." Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D. Md. 2003). But where the arguments in a reply are "merely responses to new arguments" made in an opposition brief, a surreply is not appropriate. Aguilar v. LR Coin Laudromat, Civ. No. RDB-11-02352, 2012 WL 1569552, at *2-3 (D. Md. May 2, 2012); see also EEOC v. Freeman, 961 F.Supp.2d 783, 801 (D. Md. 2013), aff'd in part sub nom. E.E.O.C. v. Freeman, 778 F.3d 463 (4th Cir. 2015) (denying the plaintiff a surreply where the "new" arguments in the defendant's reply were "more correctly characterized as responsive arguments to the claims raised in the [plaintiff's] opposition brief.") Surreplies are generally not permitted where they merely identify inaccuracies in the opposing party's reply brief. See Khoury, 268 F.Supp.2d at 606 (denying the plaintiff a surreply where the plaintiff wished to correct "[defendant's misrepresentations" of the record and the law).

         Plaintiff contends she is entitled to a surreply because Defendant's Reply is "built on the new, unfounded, and contradictory supposition that there were no caution signs at the time Plaintiff fell." (Mot. Sur. at 6.) But Defendant's Reply did not raise the issue of the yellow caution signs for the first time-it was Plaintiff who first raised the issue in her Opposition. (Opp'n Mem. at 8-12, ECF No. 33.) Defendant's discussion of the matter was "merely responsive" to Plaintiff's argument on the matter, and responsive arguments in a reply do not warrant a surreply. See Freeman, 961 F.Supp.2d at 801. It is true that Defendant mischaracterized the record in its Reply: it stated multiple times that the evidence was "undisputed" that the yellow caution signs were only put in place after Plaintiffs fall, even though Defendant's own interrogatory responses stated the opposite. (Reply at 2, 4-5, ECF No. 34; Costco Interrogs. 6, 20.) But a plaintiff is not entitled to a surreply merely to identify inaccuracies in the opposing party's reply. See Khoury, 268 F.Supp.2d at 606.

         As such, the Court will deny Plaintiffs motion to file a surreply, and will not consider the contents of Plaintiff's proposed surreply.[1]

         IV. ...

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