United States District Court, D. Maryland
L. Hollander United States District Judge.
tort litigation, plaintiffs Ellen and James Mitchell filed
suit against Target Corporation (“Target”). ECF
1-3 (“Complaint”). 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
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
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.
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. She was accompanied by her daughter,
Karrsin Mitchell, and her granddaughter, Hanahsin Henry. ECF
29-1 at 73; ECF 29-2 at 12, 33. 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.
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.
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.
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.
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.
“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[.]”
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.
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.
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.
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.
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.
Standard of Review
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).
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
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.
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).
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).
Choice of Law
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).
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).
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.
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.
Proof of negligence
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))).
‘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) ...