United States District Court, D. Maryland
K. Bredar Chief Judge
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
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.
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. ¶¶
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.)
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.)
Summary Judgment Standard
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).
Motion to File a Surreply
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).
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.
such, the Court will deny Plaintiffs motion to file a
surreply, and will not consider the contents of
Plaintiff's proposed surreply.