WILLIAM CONNELLY, Magistrate Judge.
Plaintiff Sherry Watson ("Plaintiff" or "Mrs. Watson") brought this action against Defendant J. C. Penney Corporation, Inc. ("Defendant" or "J. C. Penney") alleging negligence and seeking $250,000 in damages. The parties consented to proceed before a United States Magistrate Judge for all further proceedings in the case and the entry of a final judgment. See ECF No. 10. The case thereafter was referred to the undersigned. See ECF No. 12. Pending before the court and ready for resolution is J.C. Penney's Motion for Summary Judgment (ECF No. 16). Mrs. Watson filed an Opposition (ECF No. 20) and J. C. Penney filed a Reply (ECF No. 21).
J.C. Penney requests an oral hearing. See ECF No. 16 at 2. No hearing is deemed necessary and therefore the request for oral hearing is
On December 14, 2013 Mrs. Watson and her husband visited the J. C. Penney store located at 11130 Mall Circle, Waldorf, Maryland 20603. She fell shortly after her arrival.
ECF No. 16-2 at 2 (S. Watson Dep. 19:2-17). According to Mr. Watson, he was in the store for about 30 seconds before his wife fell. ECF No. 16-2 at 5 (E. Watson Dep. 16:7-9). He did not see her fall. "I turned away, looked back, she was on the floor." Id. (E. Watson Dep. 14:21-15:1).
Weather was not a factor. According to Mrs. Watson the weather was pretty nice; it was sunny. She does not recall any precipitation. The streets and sidewalks were dry. ECF No. 16-2 at 2 (S. Watson Dep. 20:1-7). At the time of her fall, Mrs. Watson wore ankle boots.
Subject matter jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332. Mrs. Watson is a resident of Maryland. J. C. Penney is incorporated in Delaware and its principal place of business is in Plano, Texas. The amount in controversy exceeds $75,000, exclusive of interest and costs. Pursuant to 28 U.S.C. § 1391 venue is proper in this district because a substantial part of the events or omissions giving rise to the claim occurred in this district.
A motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950). The moving party bears the burden of showing that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(a); Pulliam Inv. Co., 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).
When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323.
On those issues where the nonmoving party will have the burden of proof, it is that party's responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256. However, "`[a] mere scintilla of evidence is not enough to create a fact issue.'" Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir. 1984) (quoting Seago v. North Carolina Theaters, Inc., 42 F.R.D. 627, 632 (E.D.N.C. 1966), aff'd, 388 F.2d 987 (4th Cir. 1967), cert. denied, 390 U.S. 959 (1968)). There must be "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
Before addressing the parties' positions regarding genuine issues as to any material fact, the court must address some preliminary matters. Since this court's jurisdiction is based on diversity of citizenship, the principles outlined in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938) require the application of Maryland law to substantive law questions. Under Maryland law a property owner owes a certain duty to an individual who comes in contact with the property, and the scope of the duty owed is dependent upon the individual's status while on the property. Baltimore Gas & Elec. Co. v. Flippo, 348 Md. 680, 688, 705 A.2d 1144, 1148 (1998). Maryland law recognizes four categories of individuals: (1) an invitee, (2) a licensee by invitation, (3) a bare licensee and (4) a trespasser. An invitee is an individual who is on the property for a purpose related to the landowner's business. "An occupier of land has a duty to use reasonable and ordinary care to keep the premises safe for an invitee and to protect him from injury caused by an unreasonable risk that the invitee, by exercising ordinary care for his own safety, will not discover." Henley v. Prince George's County, 305 Md. 320, 339, 503 A.2d 1333, 1343 (1986).
A licensee by invitation is a social guest and the landowner "owes a duty to exercise reasonable care to warn the guest of dangerous conditions that are known to the [landowner] but not easily discoverable." Flippo, 348 Md. at 689, 705 A.2d at 1148 (citation omitted). For a bare licensee, a person on the property with permission but for his/her own purposes, a landowner only owes a duty to refrain from willfully or wantonly injuring the bare licensee and to refrain from creating "`new and undisclosed sources of danger without warning the [bare] licensee.'" Id. (citation omitted). For a trespasser, someone who intentionally and without permission enters another's property, a landowner owes no duty except refraining from willfully or wantonly injuring or entrapping the trespasser.
On December 14, 2013 Mrs. Watson was a customer at a J. C. Penney store in Waldorf, Maryland. She was in the store for a purpose related to J. C. Penney's business. Mrs. Watson was thus an invitee.
Under Maryland law, to establish a prima facie case of negligence, Mrs. Watson 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.'" Valentine v. On Target, 353 Md. 544, 549, 727 A.2d 947, 949 (1999) (citations omitted). Negligence means doing something a person using reasonable care would not do, or not doing something a person using reasonable care would do. Maryland Civil Pattern Jury Instruction 19:1. Ordinary or reasonable care means "that caution, attention or skill a reasonable person would use under similar circumstances." Id.
J. C. Penney owes a duty of ordinary care to keep its premises safe for an invitee such as Mrs. Watson. That duty is defined as follows:
Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md.App. 381, 388, 693 A.2d 370, 374 (1997) (internal citations omitted).
J. C. Penney however is not an insurer of Mrs. Watson's safety while she is on its premises. "[N]o presumption of negligence on the part of the owner arises merely from a showing that an injury was sustained in his store." v. Greenbelt Consumer Servs., Inc., 239 Md. 229, 232, 210 A.2d 724, 725 (1965). Therefore, "[i]n an action by a customer to recover damages resulting from a fall in a store caused by a foreign substance on the floor or stairway, the burden is on the customer to produce evidence that the storekeeper created the dangerous condition or had actual or constructive knowledge of its existence." Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 119, 113 A.2d 405, 408 (1955).
As the party asserting negligence, Mrs. Watson has the burden of proving J. C. Penney knew the floor was hazardous.
ECF No. 16-2 at 3 (S. Watson Dep. 22:5-21).
In support of her Opposition to J. C. Penney's motion for summary judgment, Mrs. Watson signed a declaration stating in pertinent part,
ECF No. 20-1 at 2 (S. Watson Decl.). Mr. Watson's declaration is virtually identical.
ECF No. 20-3 at 2 (E. Watson Decl.).
The declarations suggest J. C. Penney had actual knowledge since there were multiple footprints through the residue. However, both Mrs. Watson and Mr. Watson testified neither the residue nor the footprints were readily apparent.
ECF No. 16-2 at 3 (S. Watson Dep. 21:3-13, 23:1-13).
Id. at 5, 6 (E. Watson Dep. 15:6-16, 19:2-9).
Neither Mrs. Watson's deposition testimony nor the declarations prove J. C. Penney knew the floor was hazardous. No other evidence has been presented that J. C. Penney was actually aware of film or residue on the floor prior to Mrs. Watson's fall. Mrs. Watson fails to meet her burden and therefore cannot demonstrate actual knowledge by J. C. Penney.
One of the preeminent cases of a store owner's negligence based on constructive knowledge is Moore v. American Stores Co., 169 Md. 541, 182 A. 436 (1936). The appellant, Anna Moore, visited appellee's store to purchase some items. In the process of departing the store, while passing the meat counter, both of her feet slipped, causing her to drop. Ms. Moore attempted to catch herself or brace herself with her hands. She was unable to get up on her own and had to be assisted. "When she got up, she noticed dirty grimy grease on her hands, and that the floor where she fell was dark and `more greasy that the rest of the floor.'" 169 Md. at 544, 182 A. at 437. The Court of Appeals of Maryland found the facts of this case sufficient to impute to the store operator constructive knowledge of the greasy condition of the floor.
169 Md. at 548-49, 182 A. at 439.
Critical for imputing constructive knowledge is a plaintiff demonstrating the dangerous condition existed for a sufficient period of time to permit the store operator, exercising reasonable care, to discover it. The store operator's failure to discover the dangerous condition "may in itself be evidence of negligence sufficient to charge him with knowledge of [the dangerous condition]." 169 Md. at 551, 182 A. at 440. Finally, after reviewing a series of cases where business operators were found liable, the Court of Appeals of Maryland observed such findings are "consistent with the hypothesis that the dangerous condition was created by some act or default on the part of the defendant or its agent, or was in some way incidental to the operation of its business." 169 Md. at 552, 182 A. at 441.
Returning to the lawsuit before this court, Mrs. Watson claims constructive knowledge can be inferred based on the length of time the hazardous condition existed. She asserts there is evidence the slippery residue was on the floor for a long time. Second, Mrs. Watson notes she fell in an area near the check-out register and therefore she was in direct line of sight of the cashiers. Moreover, according to Mrs. Watson, the slippery residue covered a substantial area. "Thus, Defendant's employees should have been able, in the exercise of the ordinary care, to discover the slippery substance prior to Mrs. Watson's fall." ECF No. 20 at 5-6.
Regarding "time on the floor" evidence, Mrs. Watson relies upon the following testimony of Debra Addison, store manager.
ECF No. 21-1 at 4 (Addison Dep. 7:9-20). According to Mrs. Watson she fell shortly after arriving at the store at approximately 12:50 p.m., almost seven hours after the floors were cleaned.
During her deposition Mrs. Watson did not have any information concerning the length of time the slippery film or residue had been on the floor.
ECF No. 16-2 at 3 (S. Watson Dep. 21:14-22:17).
Store Manager Debra Addison responded to the scene where Mrs. Watson fell.
ECF No. 21-1 at 6 (Addison Dep. 10:8-21). The fact that Ms. Addison did not see anything on the floor is not surprising. Mrs. Watson and Mr. Watson testified that the film or residue was not readily visible. They only perceived the residue upon tilting their heads or looking at an angle.
Mrs. Watson further contends J. C. Penney had constructive knowledge of the slippery floors based on multiple footprints; however, as Mrs. and Mr. Watson acknowledge, the residue and footprints were not readily apparent.
Additionally Mrs. Watson suggests J. C. Penney had constructive knowledge because she fell near the check-out registers within the direct line of sight of J. C. Penney's cashiers. Mrs. Watson however has not presented any testimony or other evidence suggesting any cashier noticed the supposedly slippery floor or saw Mrs. Watson fall. See Maans v. Giant of Maryland, L.L.C., 161 Md.App. 620, 631, 871 A.2d 627, 634 (2005) ("appellant produced not one scintilla of evidence to show that if any of the cash-register operators had looked they would have seen the water."). Mrs. Watson has not presented evidence comparable to that presented in Keene v. Arlan's Dept. Store.
35 Md.App. 250, 251-52, 370 A.2d 124, 125-26 (1977). Mrs. Watson's fall occurred on December 14, 2013 during the height of the Christmas holiday shopping season. It would not be surprising if the cashiers were busy with customers making purchases and therefore the cashiers may not have had the opportunity to observe the condition of the floor.
Finally, under the constructive notice analysis, Mrs. Watson has not presented any evidence that J. C. Penney would have detected the slippery film or residue on the floor in sufficient time to prevent her fall. The facts of this case are distinguishable from Mack-Epps v. Supervalu, Inc., Civ. No. WMN-11-530, 2011 U.S. Dist. LEXIS 120198 (D. Md. Oct. 18, 2011) where an employee had called for a cleanup of the produce area twenty minutes before the plaintiff slipped on a mashed grape. Once again, this court finds the Maans case instructive.
Maans, 161 Md. App. at 632, 871 A.2d at 634 (footnote omitted). Both Mrs. Watson and Mr. Watson testified the film or residue on the floor was not readily apparent. In this case no evidence has been presented of any J. C. Penney employee being aware of the slippery film or residue on the floor before Mrs. Watson fell. Mrs. Watson fails to meet her burden and therefore cannot demonstrate constructive knowledge by J. C. Penney.
Mrs. Watson argues she does not have the burden of proving J. C. Penney had notice where the dangerous condition was created by J. C. Penney, citing the Keene case as authority. Mrs. Watson claims the slippery film or residue was a cleaning product. She contends the slippery film or residue covering the floor could not have possibly been created by innumerable causes other than J. C. Penney or its employees and/or contractors. "A logical and natural inference that [a] jury can reach is that Defendant, through its employees and/or contractors, cleaned the floor but failed to remove all of the cleaning product, leaving it slippery." ECF No. 20 at 4.
In an action by a customer to recover damages resulting from a fall in a store caused by a foreign substance on the floor or stairway, the burden is on the customer to produce evidence that the storekeeper created the dangerous condition. . . ." Rawls, 207 Md. at 119, 113 A.2d at 408. The facts of this case are distinguishable from Montgomery Ward & Co. v. Hairston, 196 Md. 595, 78 A.2d 190 (1951) where Ms. Hairston fell and broke her leg while shopping at a Montgomery Ward store. Ms. Hairston noticed a "spot about as large as a dinner plate covered with an `oily, greenish, grayish substance', in which her left heel had left a mark." 196 Md. at 597, 78 A.2d at 190. The Court of Appeals reversed judgment in favor of Ms. Hairston because "there was nothing to charge the defendant with notice of the spot." Id. at 599, 78 A.2d at 191. Hariston and Maans cases concern foreign objects being dropped on the floor and whether store employees had notice of the foreign object. As Judge Davis observed in Sinnott v. Wal-Mart Stores, "Maryland case law generally encompasses two basic categories of constructive notice in slip and fall cases: (1) slip and falls on `foreign substances;' and (2) slip and falls on conditions created directly by the store owner." Civ. No. AMD 99-2494, 2000 U.S. Dist. LEXIS 23305, at *6 (D. Md. July 14, 2000). This case falls squarely into the latter category of slip and fall cases since Mrs. Watson and Mr. Watson testified the slippery film or residue covered the entire floor. A residue covering the entire floor, and not just a spot of residue or residue in a small section of the floor room, suggests "the dangerous condition was created by some act or default on the part of the defendant or its agent, or was in some way incidental to the operation of its business." Moore, 169 Md. at 552, 182 A. at 441. Maintenance of the floor is incidental to J. C. Penney's operation of its stores.
R. D. Hursh, Liability of proprietor of store, office, or similar business premises for fall on floor made slippery by waxing oiling, 63 A.L.R. 2d 591 [§7[a]] (1959).
The Maryland courts have addressed this issue in a case with facts similar to this present litigation. In that case Mrs. Link entered a department store and noticed the shiny condition of its vinyl floor. When she stepped into area that appeared more shiny than the rest of the floor, her left foot suddenly slipped. Mrs. Link sued the department store. After the presentation of evidence the trial judge granted the department store's motion for judgment notwithstanding the verdict. The Court of Special Appeals of Maryland disagreed with the trial judge as explained below.
Link v. Hutzler Bros. Co., 25 Md.App. 586, 594, 335 A.2d 192, 197 (1974), pet. denied, 275 Md. 750 (1975).
The testimonies of Mrs. Watson and her husband are legally sufficient for this case to be presented to a jury. The jury may disbelieve the Watsons and believe store manager Ms. Addison or vice versa. It is not the province of this court to resolve discrepancies by weighing evidence or assessing credibility. These matters are for a jury to resolve.
For the foregoing reasons, the court finds there are genuine issues as to a material fact and thus J. C. Penney is not entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). An Order will be entered separately denying J. C. Penney's motion for summary judgment.
