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Mitchell v. Target Corp.

United States District Court, D. Maryland

October 18, 2019

ELLEN JEAN MITCHELL, et al., Plaintiffs,


          Ellen L. Hollander United States District Judge.

         In this tort litigation, plaintiffs Ellen and James Mitchell filed suit against Target Corporation (“Target”). ECF 1-3 (“Complaint”).[1] Plaintiffs allege that, due to the negligence of Target, Ms. Mitchell sustained serious injuries on July 31, 2015, when she slipped and fell while shopping at a Target store in Salisbury, Maryland (the “Store”). Id. In addition, plaintiffs, who are husband and wife, assert a claim for loss of consortium.

         Target has moved for summary judgment (ECF 20), supported by a memorandum of law. ECF 29 (collectively, the “Motion”) and seven exhibits. ECF 29-1 to ECF 29-7. Plaintiffs oppose the Motion (ECF 31-1), supported by two exhibits. ECF 31-2; ECF 31-3. Defendant has replied. ECF 33.

         The Motion has been fully briefed and no hearing is necessary to resolve it. See Local Rule 105(6). For the reasons that follow, I shall grant the Motion. ECF 29.

         I. Background

         On the evening of July 31, 2015, Ms. Mitchell went back-to-school shopping at the Store. ECF 29-1 (Ellen Mitchell Deposition) at 73; ECF 29-2 (Karrsin Mitchell Deposition) at 16.[2] She was accompanied by her daughter, Karrsin Mitchell, and her granddaughter, Hanahsin Henry. ECF 29-1 at 73; ECF 29-2 at 12, 33.[3] At the time, Ms. Mitchell was approximately fifty-nine years old, ECF 29-1 at 38; Karrsin was approximately fifteen, ECF 29-2 at 13; and Hanahsin was approximately twelve. ECF 29-1 at 11.

         While Ms. Mitchell was at the check-out, a cashier told her about a sale that the Store was having on shoes. ECF 29-1 at 74; ECF 29-2 at 17. After purchasing her items, Ms. Mitchell went with Karrsin and Hanahsin to the shoe department, which was located towards the back of the Store. ECF 29-2 at 17. Finding nothing of interest, they decided to leave. Id. at 17-18. They proceeded towards the exit by walking through the baby clothing and baby products aisles. ECF 29-1 at 77; ECF 29-2 at 18.

         As the group walked toward the exit, Ms. Mitchell, who was wearing “Flip Flops, ” stepped on a clear, slick substance on the tile floor. ECF 29-1 at 80; ECF 29-2 at 35-36; ECF 29-3 (Guest Incident Report). Neither Ms. Mitchell nor Karrsin saw the substance before Ms. Mitchell stepped in it. ECF 29-1 at 78; ECF 29-2 at 34. According to Karrsin, the puddle of liquid was roughly 8 to 12 inches in diameter. ECF 29-2 at 32. As soon as Ms. Mitchell stepped on the liquid, she “just flew up in the air and went down.” ECF 29-1 at 80. She fell hard, hitting her head on the tile floor. Id. at 84. Karrsin sent Hanahsin to find a Target associate, as Karrsin crouched down beside her mother. ECF 29-2 at 36.

         Target employee Bryan Willin, who was the first of two Target employees to respond to the scene, described the spill as an “oily substance . . . approx 10 to 12″ in diameter (clear).” See ECF 29-4 (Willin Team Member Witness Statement). The substance has never been identified, however. ECF 29-1 at 78-79.

         Both Ms. Mitchell and Karrsin acknowledged at their depositions that they did not know the nature of the substance, how it got on the floor, or how long it had been on the floor. ECF 29-1 at 79; ECF 29-2 at 48, 66. As Karrsin put it, they “just know that something slick and oily was there.” ECF 29-2 at 28. She also indicated that, in addition to a large spot, there were two or three “little dribbles” around it. Id. at 33.

         Notably, “within seconds, 30 seconds, when the fall occurred, ” a couple walked around the corner, because they heard Ms. Mitchell scream. Id. at 37. Ms. Mitchell and Karrsin both described the man as a white male dressed in a navy-blue shirt with the insignia of a volunteer fire department. ECF 29-1 at 86-87; ECF 29-2 at 48-49. The man asked if plaintiff was “all right” and if she “need[ed] help.” ECF 29-2 at 37. Karrsin said that her mother slipped. Id. Karrsin testified that, in response, the man said: “My wife had just slipped in a spot and I had just talked with an associate, or whoever, someone at the front of the store who worked there, that there was something on their floors.” Id. at 52; see also Id. at 37. The man asked Karrsin if he could help Ms. Mitchell and said that “he had been doing work with the volunteer fire company[.]” Id. at 53. He told Karrsin that he had experience “with people who have . . . been injured[.]” Id.

         The man squatted down next to Ms. Mitchell, took hold of her arm, and asked if she was okay. ECF 29-1 at 84. According to Ms. Mitchell, the man said to her: “I just went up there and told them my wife nearly slipped here.” Id. at 91; see also Id. at 85. Ms. Mitchell recalled that the man sounded “a little bit aggravated.” Id. at 91. The man then asked someone to bring him a pillow for Ms. Mitchell. Id. at 88. Although the man stayed with Ms. Mitchell until the paramedics arrived, id. at 84, neither Ms. Mitchell nor Karrsin obtained the man's name or contact information. Id. at 86; ECF 29-2 at 60.

         No Target employee witnessed the accident. Justin Giles, an assistant manager at the Store, arrived at the scene approximately five minutes after Ms. Mitchell's fall. ECF 29-2 at 73-74. Ms. Mitchell was still on the floor. Giles spoke with Karrsin. ECF 29-2 at 54-55. He asked Karrsin how her mother fell, requested her contact information, and inquired about what kind of shoes Ms. Mitchell was wearing. Id. at 58-60. Giles and Ms. Mitchell did not talk, although when Giles asked Karrsin about her mother's shoes, Ms. Mitchell interjected that her shoes came from Target. ECF 29-1 at 93-94.

         Ms. Mitchell testified during her deposition that sometime after the accident Karrsin told her that Giles talked with the fireman. ECF 29-1 at 89, 92. According to Ms. Mitchell, Karrsin said that the fireman “got really testy” with Giles. Id. at 94. In contrast, Karrsin testified that she did not see Giles speak with the volunteer fireman. ECF 29-2 at 54, 75. And, Karrsin acknowledged that she did not mention her conversation with the man to Giles. Id. at 76-77.

         An ambulance was summoned to the store at 8:14 P.M., and it arrived approximately ten minutes later. ECF 29-7 (Prehospital Care Report). Ms. Mitchell was carried out of the store on a stretcher and taken to Peninsula Regional Medical Center. ECF 29-2 at 55. Plaintiffs allege that, as a result of the slip-and-fall, Ms. Mitchell fractured her left femur, causing “great physical pain and mental anguish.” ECF 1-3, ¶ 7.

         The unidentified man is not mentioned in either the Team Member Witness Statement or Guest Incident Report completed by Willin or the Leader on Duty Investigation Report completed by Giles. ECF 29-3 (Guest Incident Report); ECF 29-4 (Team Member Witness Statement); ECF 29-5 (Leader on Duty Investigation Report). In response to the question “Who was at the scene when you arrived? (Please list names), ” included on the Team Member Witness Statement form, Willin wrote: “Guest who fell and her daughter and granddaughter.” ECF 29-4 at 2. And, during his deposition, Giles stated that he did not recall a man being on the scene or anyone asking him for a pillow. ECF 29-6 (Giles deposition) at 68-69. Further, he testified that if he saw someone rendering aid to an injured guest, he would have interviewed the witness. Id.

         II. Standard of Review

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate only “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.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); see also Formica v. Aylor, 739 Fed.Appx. 745, 754 (4th Cir. 2018); Iraq Middle Mkt. Dev. Found v. Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017). To avoid summary judgment, the nonmoving party must demonstrate that there is a genuine dispute of material fact so as to preclude the award of summary judgment as a matter of law. Ricci v. DeStefano, 557 U.S. 557, 585-86 (2009); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also Gordon v. CIGNA Corp., 890 F.3d 463, 470 (4th Cir. 2018).

         The Supreme Court has clarified that not every factual dispute will defeat a summary judgment motion. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248.

         There is a genuine issue as to material fact “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018); Sharif v. United Airlines, Inc., 841 F.3d 199, 2014 (4th Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). But, summary judgment is appropriate if the evidence “is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 252. But, “the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id.

         “A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [her] pleadings,' but rather must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)), cert. denied, 541 U.S. 1042 (May 17, 2004); see also Celotex, 477 U.S. at 322-24. And, the court must view all of the facts, including reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. Ricci, 557 U.S. at 585-86; Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 587; accord Hannah P. v. Coats, 916 F.3d 327, 336 (4th Cir. 2019); Variety Stores, Inc., 888 F.3d at 659; Gordon, 890 F.3d at 470; Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017); Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).

         The district court's “function” is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; accord Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, in considering a summary judgment motion, the court may not make credibility determinations. Wilson v. Prince George's Cty., 893 F.3d 213, 218-19 (4th Cir. 2018); Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007). Therefore, in the face of conflicting evidence, such as competing affidavits, summary judgment ordinarily is not appropriate, because it is the function of the fact-finder to resolve factual disputes, including matters of witness credibility. See Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).

         III. Discussion

         A. Choice of Law

         As a preliminary matter, a federal court sitting in diversity must apply the law of the state in which the court is located, including the forum state's choice of law rules. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Colgan Air, Inc. v. Raytheon Aircraft Co., 507 F.3d 270, 275 (4th Cir. 2007). Neither party explicitly addresses the matter of choice of law. The law of the forum state, Maryland, guides this Court's choice-of-law analysis. See Baker v. Antwerpen Motorcars Ltd., 807 F.Supp.2d 386, 389 n.13 (D. Md. 2011).

         For tort claims, Maryland applies the principle of lex loci delicti, i.e., the law of the “place of the alleged harm.” Proctor v. Wash. Metro. Area Transit Auth., 412 Md. 691, 726, 990 A.2d 1048, 1068 (2010); Erie Ins. Exch. v. Heffernan, 399 Md. 598, 625, 925 A.2d 636, 651 (2007). Because Ms. Mitchell was injured while shopping at a Target store located in Maryland, I shall apply the substantive tort law of Maryland as to plaintiffs' negligence and loss of consortium claims. See Hauch v. Connor, 295 Md. 120, 123-24, 453 A.2d 1207, 1209 (1983).

         B. Negligence Claim

         In the Motion, Target argues that plaintiffs cannot recover for negligence, because they cannot establish that Target breached the duty of care it owed Ms. Mitchell. Specifically, Target contends that plaintiffs have failed to provide evidence showing that it had actual or constructive knowledge of the slippery substance on the floor. ECF 29-1 at 9. Proof of actual notice is wanting, defendant asserts, because the only evidence plaintiffs provide to show that Target knew or should have known of the spill when Ms. Mitchell fell are the statements of the unidentified man, which are inadmissible hearsay. Id. at 9-16. Further, defendant maintains that, even if the statements are admissible, it is still entitled to summary judgment because there is no evidence in the record establishing that Target had sufficient time to cure the hazardous conditions after learning of it. Id. at 16-17. As for constructive notice, defendant argues that plaintiffs have failed to put forth any evidence that the slick substance was on the floor for such a period of time that Target should have known of its existence. Id. at 17-20.

         Plaintiffs do not appear to contest that Target lacked constructive knowledge of the spill. Instead, they maintain that Target had actual notice. They insist that the statements are admissible under the excited utterance exception to the hearsay rule. ECF 31-1 at 5-6. In their view, the unidentified man's statements create a genuine dispute of material fact as to whether Target had actual notice of the substance on the floor. Id. at 4.

         1. Proof of negligence

         To establish a negligence claim in Maryland, the plaintiff must prove the following: “(1) the defendant owes the plaintiff a duty of care; (2) the defendant breached that duty; (3) the plaintiff sustained an injury or loss; and (4) the defendant's breach of the duty was the proximate cause of the plaintiff's injury.” Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP, 451 Md. 600, 611, 155 A.3d 445, 451 (2017) (citing 100 Inv. Ltd. P'ship v. Columbia Town Ctr. Title Co., 430 Md. 197, 212-13, 60 A.3d 1, 10 (2013)); see Schultz v. Bank of Am., N.A., 413 Md. 15, 27, 990 A.2d 1078, 1086 (2010) (“In a negligence case, there are four elements that the plaintiff must prove to prevail: ‘a duty owed to him [or her] (or to a class of which he [or she] is a part), a breach of that duty, a legally cognizable causal relationship between the breach of duty and the harm suffered, and damages.'” (alterations in Schultz) (quoting Jacques v. First Nat. Bank of Md., 307 Md. 527, 531, 515 A.2d 756, 758 (1986))).

         “In ‘slip and fall' cases, the duty of care owed by an owner or occupier of a premises is a function of his legal relationship to the person entering on the premises.” Garner v. Supervalu, Inc., 396 Fed.Appx. 27, 29 (4th Cir. 2010) (per curiam); see, e.g., Casper v. Chas. F. Smith & Son, Inc., 316 Md. 573, 578, 560 A.2d 1130, 1133 (1989) (the duty of an owner or occupier of land “depends upon the status of the plaintiffs at the time of the accident”). Specifically, in Maryland, the duty that an owner or occupier of land owes to persons entering onto the land varies according to the visitor's status as an invitee (i.e., a business invitee), a licensee by invitation (i.e., a social guest), a bare licensee, or a trespasser. Balt. Gas & Elec. Co. v. Lane, 338 Md. 34, 44, 656 A.2d 307, 312 (1995); Wagner v. Doehring, 315 Md. 97, 101-02, 553 A.2d 684, 686 (1989); Rowley v. Mayor of Baltimore, 305 Md. 456, 464-65, 505 A.2d 494, 498 (1986). “The highest duty is owed to a business invitee, defined as ‘one invited or permitted to enter another's property for purposes related to the landowner's business.'” Norris v. Ross Stores, Inc., 159 Md.App. 323, 334, 859 A.2d 266, 273 (2004) ...

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