Opinion
Civil Action ELH-21-2697
11-01-2022
MARTIZ JOHNSON, Plaintiff, v. SAM'S WEST, INC., Defendant.
MEMORANDUM OPINION
Ellen L. Hollander, United States District Judge.
In this negligence case, plaintiff Martiz Johnson filed suit against Sam's West, Inc. (“Sam's Club”). ECF 2 (“Complaint”). Johnson alleges that, due to the negligence of Sam's Club, she sustained serious injuries on August 22, 2020, when she slipped while shopping at the Sam's Club located at 6410 Petrie Way in Baltimore (the “Store”). Id.
Suit was initially filed in the Circuit Court for Baltimore County. Plaintiff seeks in excess of $75,000 in damages. ECF 2 at 3. Defendant timely removed this case to federal court on October 20, 2021, on the basis of diversity of citizenship, pursuant to 28 U.S.C. § 1332. ECF 1 (“Notice of Removal”).
Sam's Club has moved for summary judgment (ECF 16), supported by a memorandum of law (ECF 16-1) (collectively, the “Motion”) and three exhibits. ECF 16-2 to ECF 16-4. Defendant argues, inter alia, that there is no evidence as to how long the substance had been on the floor when the incident occurred. ECF 16-1 at 1. Plaintiff opposes the Motion (ECF 17-1), supported by one exhibit. ECF 17-2. Defendant has replied. ECF 18.
Citations are to the electronic pagination.
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.
I. Factual Background
On the morning of August 22, 2020, plaintiff went to the Store to shop. ECF 16-2 (Johnson Deposition) at 22. After shopping for about an hour, plaintiff checked out at one of the cash registers. Id. at 24-26. As Johnson pushed her shopping cart towards the exit, she slipped on a substance on the floor, but did not fall. Id. at 27-28. Plaintiff was wearing slip-on shoes that fully encased her feet and had rubber soles. Id. at 23.
The parties do not provide details as to the size or type of Store. But, the Court takes notice that, in general, Sam's Club is a chain of large membership-only retail warehouse stores that sell a wide variety of merchandise in bulk. See Sam's Club American company, BRITANNICA, https://www.britannica.com/topic/Sams-Club (last visited October 31, 2022); see also Fed.R.Evid. 201 (a court may take judicial notice of adjudicative facts if they are “not subject to reasonable dispute,” in that they are “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”).
The incident was captured on store surveillance video footage. ECF 16-3. The video confirms that at 9:53:27 a.m. plaintiff slipped but did not fall. Id. No liquid or other foreign substance on the floor is visible in the video. Id.
The video shows multiple check out registers. There are no lengthy waiting lines shown in the video.
Before the incident, plaintiff estimates that she was in the checkout line for approximately ten to fifteen minutes. Id. at 26. During that time, plaintiff did not see or hear anyone spill any substance. Id. at 27. Plaintiff also did not see any store personnel in the area of the incident. Id. at 34. The area where plaintiff slipped was well lighted and there was nothing obstructing the area. Id. at 34-35. At the time of the incident, plaintiff was looking straight ahead and did not see anything on the floor before she slipped. Id. at 34.
At her deposition, the plaintiff testified as follows, id. at 35:
Q: So after you slipped what did you observe on the floor?
A: I turned around and noticed that there was a wet substance that my foot had slipped in, or had stepped in, and moving forward slipped under the back of the cart.
Q: Can you describe the wet substance?
A: It was wet, slippery wet.
Q: Do you know what it was?
A: No.
Plaintiff did not see any broken product or other debris on the floor. ECF 16-32 at 38. Notably, plaintiff did not know how the substance got on the floor or how long it had been there before the incident. Id. at 37.
Johnson reported the incident to Tyeisha Tyler, a Front End Coach for Sam's Club. ECF 16-4 (Tyler Affidavit). When Tyler arrived at the scene, she observed the substance on the floor. Id. ¶ 4. Tyler did not identify any source of the substance and did not know how long the substance had been on the floor. Id. However, prior to the incident, Tyler had not received any reports of a foreign substance on the floor and no other customers had reported slipping in the area of the incident. Id. ¶ 5.
Defendant's employees took multiple photographs of the substance after the incident. They are docketed collectively at ECF 17-2. But, there is no evidence as to the identification of the substance.
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); Cybernet, LLC v. David, 954 F.3d 162, 168 (4th Cir. 2020); Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (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); 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 dispute as to material fact “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see CTB, Inc. v. Hog Slat, Inc., 954 F.3d 647, 658 (4th Cir. 2020); Variety Stores, Inc., 888 F.3d at 659; Sharif v. United Airlines, Inc., 841 F.3d 199, 2014 (4th Cir. 2016); Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). 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.” Anderson, 477 U.S. at 252.
“A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [its] 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 (2004); see 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., 475 U.S. at 587; accord Knibbs v. Momphand, 30 F.4th 200, 206 (4th Cir. 2022); Walker v. Donahoe, 3 F.4th 676, 682 (4th Cir. 2021); 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; Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017).
But, the nonmovant “must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015) (internal quotation marks omitted). Rather, “there must be evidence on which the jury could reasonably find for the nonmovant.” Thompson v. Virginia, 878 F.3d 89, 97 (4th Cir. 2017) (alteration and internal quotation marks omitted).
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 weigh the evidence or make credibility determinations. Brown v. Lott, 2022 WL 2093849, at *1 (4th Cir. June 10, 2022) (per curiam); Knibbs, 30 F.4th at 207, 213; Betton v. Belue, 942 F.3d 184, 190 (4th Cir. 2019); 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 is not appropriate, because it is the function of the factfinder 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, (4th Cir. 2002).
That said, “a party's ‘self-serving opinion . . . cannot, absent objective corroboration, defeat summary judgment.'” CTB, Inc., 954 F.3d at 658-59 (quoting Williams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir. 2004)). But, if testimony is based on personal knowledge or firsthand experience, it can be evidence of disputed material facts, even if it is uncorroborated and selfserving. Lovett v. Cracker Barrel Old Country Store, Inc., 700 Fed.Appx. 209, 212 (4th Cir. 2017). Indeed, “‘a great deal of perfectly admissible testimony fits'” the “‘description'” of “‘selfserving.'” Cowgill v. First Data Technologies, Inc., 41 F.4th 370, 383 (4th Cir. 2022) (citing United States v. Skelena, 692 F.3d 725, 733 (7th Cir. 2012)).
On the other hand, “[u]nsupported speculation is not sufficient to defeat a summary judgment motion.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987); see also Reddy v. Buttar, 38 F.4th 393, 403-04 (4th Cir. 2022); CTB, Inc., 954 F.3d at 659; Harris v. Home Sales Co., 499 Fed.Appx. 285, 294 (4th Cir. 2012). “[T]o avoid summary judgment, the nonmoving party's evidence must be of sufficient quantity and quality as to establish a genuine issue of material fact for trial. Fanciful inferences and bald speculations of the sort no rational trier of fact would draw or engage in at trial need not be drawn or engaged in at summary judgment.” Local Union 7107 v. Clinchfield Coal Co., 124 F.3d 639, 640 (4th Cir. 1997).
As noted, defendant submitted video footage of the incident. The video footage, like other evidence or exhibits, is construed in the light most favorable to plaintiff, as the nonmovant. See Brooks v. Johnson, 924 F.3d 104, 111 (4th Cir. 2019). In Scott v. Harris, 550 U.S. 372, 380 (2007), a summary judgment case, the Supreme Court said that, when “opposing parties tell two different stories,” one of which is blatantly contradicted by video evidence in the record, “so that no reasonable jury could believe it, a court should not adopt that version of the facts ....” Rather, a court should “view[] the facts in the light depicted by the videotape.” Id.; see also Sawyer v. Asbury, 537 F. App'x. 283, 291 (4th Cir. 2013).
In Witt v. West Virginia State Police, Troop 2, 633 F.3d 272 (4th Cir. 2011), a summary judgment case, the Court observed that the principle articulated in Scott does not license a court to reject one side's account as a matter of law if the “documentary evidence, such as a video,” merely “offers some support for [the other side's] version of events.” Id. at 276 (emphasis in original). Rather, the video controls only where it “‘blatantly contradict[s]'” one side's testimonial account. Id. (quoting Scott, 550 U.S. at 380). But, “[i]ncontrovertible evidence relied on by the moving party, such as a relevant videotape whose accuracy is unchallenged, should be credited by the court” when resolving a summary judgment motion “if it so utterly discredits the opposing party's version that no reasonable juror could fail to believe the version advanced by the moving party.” Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007) (applying Scott in context of motion for judgment as a matter of law).
In this case, the video footage is certainly informative. But, it does not compel a particular outcome.
III. Discussion
Sam's Club argues that summary judgment is appropriate because Johnson has failed to prove that Sam's Club had actual or constructive notice of the substance on the floor prior to her slip. ECF 16-1 at 5. In the alternative, Sam's Club argues that Johnson was contributorily negligent as a matter of law. Id. at 11.
For the reasons that follow, Sam's Club is entitled to summary judgment because Johnson has not shown that Sam's Club had actual or constructive knowledge of the wet substance. Therefore, I need not resolve the issue of contributory negligence.
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). 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 the underlying incident occurred in Maryland (see ECF 2, ¶ 3), the substantive tort law of Maryland governs plaintiff's claim of negligence. See Hauch v. Connor, 295 Md. 120, 123-24, 453 A.2d 1207, 1209 (1983).
B. Negligence Claim
In the Motion, Sam's Club argues that Johnson cannot recover for negligence because she cannot establish that Sam's Club breached the duty of care it owed Johnson. ECF 16-1 at 5. Specifically, Sam's Club contends that plaintiff has failed to provide evidence showing that it had actual or constructive knowledge of the substance on the floor. Proof of actual knowledge is wanting, defendant asserts, because Sam's Club “had not received any reports of the substance on the floor prior to Plaintiff's incident and no other customers had reported slipping in the area of the incident prior to Plaintiff.” ECF 16-1 at 6. As for constructive knowledge, defendant argues that plaintiff has failed to put forth any evidence that the substance was on the floor for such a period of time that Sam's Club should have known of its existence. Id. at 7-9.
Plaintiff does not appear to contest that Sam's Club lacked actual knowledge of the substance. Instead, Johnson maintains that Sam's Club had constructive knowledge because the spill would have happened at least ten minutes prior to plaintiff's slip. ECF 17-1 at 6. This claim is based upon plaintiff's deposition testimony that she did not see or hear anyone spill anything in the ten to fifteen minutes she was waiting in line at the cashier to check out. ECF 16-2 at 26. Plaintiff also asserts that the photographs show other cart tracks, which she suggests could not have been caused by her cart, and this indicates that the spill was present long enough for defendant to have noticed it. ECF 17-1 at 6.
1. Proof of Negligence
Plaintiff has alleged that Sam's Club was negligent. 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., Baltimore Gas and Elec. Co. v. Flippo, 348 Md. 680, 688, 705 A.2d 1144, 1148 (1998) (stating that, with regard to “premises liability,” the extent of a property owner's duty “‘depends upon the person's status while on the property'”) (citation omitted); 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”); see also Plantholt v. Lowe's Home Centers, LLC, ELH-14-2091, 2015 WL 1861669, at *5 (D. Md. Apr. 22, 2015). 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) (citations omitted); see Lane, 338 Md. at 44, 656 A.2d at 312; Howard Cty. Bd. of Educ. v. Cheyne, 99 Md.App. 150, 155, 636 A.2d 22, 25 (1994), cert. denied, 335 Md. 81, 642 A.2d 192 (1994). Defendant does not challenge plaintiff's characterization of herself as a business invitee. See ECF 17-1 at 5.
An owner or occupier of land has a duty to exercise reasonable care to “protect the invitee from injury caused by an unreasonable risk” that the invitee would be unlikely to perceive in the exercise of ordinary care for his or her own safety, and about which the owner knows or could have discovered in the exercise of reasonable care. Casper, 316 Md. at 582, 560 A.2d at 1135; see Lane, 338 Md. at 44, 656 A.2d at 312 (stating that an owner owes “a duty of ordinary care to keep the property safe for the invitee”); Evans v. Hot Shoppes, Inc., 223 Md. 235, 239, 164 A.2d 273, 276 (1960); Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md.App. 381, 388, 693 A.2d 370, 374 (1997); Pahanish v. Western Trails, Inc., 69 Md.App. 342, 355, 517 A.2d 1122, 1128 (1986). The duties of a business invitor thus include the obligation to warn invitees of known hidden dangers, a duty to inspect, and a duty to take reasonable precautions against foreseeable dangers. Tennant, 115 Md.App. at 388, 693 A.2d at 374.
In Gillespie v. Ruby Tuesday, Inc., 861 F.Supp.2d 637 (D. Md. 2012), Judge Blake of this Court explained: “The duty owed to an invitee is ‘to use reasonable and ordinary care to keep [the] premises safe for the invitee and to protect [the invitee] from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for [the invitee's] own safety will not discover.'” Id. at 641 (quoting Deboy v. City of Crisfield, 167 Md.App. 548, 555, 893 A.2d 1189, 1193 (2006) (modifications in Deboy)); accord Garner, 396 Fed.Appx. at 29; Bramble v. Thompson, 264 Md. 518, 521, 287 A.2d 265, 267 (1972); see also Pahanish, 69 Md.App. at 355, 517 A.2d at 1128 (“At common law, the landowner's duty to business invitees is to use reasonable and ordinary care to keep his premises in a safe condition and to protect invitees against the dangers of which the landowner is aware or which, with reasonable care, he could have discovered.”).
Although the business invitor has a duty to protect against unreasonably dangerous conditions, that duty is not without limits. Moulden v. Greenbelt Consumer Servs., Inc., 239 Md. 229, 232, 210 A.2d 724, 725 (1965); Lexington Mkt. Auth. v. Zappala, 233 Md. 444, 446, 197 A.2d 147, 148 (1964). “‘[S]torekeepers are not insurers of their customers' safety, and no presumption of negligence arises merely because an injury was sustained on a storekeeper's premises.'” Rehn v. Westfield Am., 153 Md.App. 586, 593, 837 A.2d 981, 984 (2003) (quoting Giant Food, Inc. v. Mitchell, 334 Md. 633, 636, 640 A.2d 1134, 1135 (1994)), cert. denied, 380 Md. 619, 846 A.2d 402 (2004). Moreover, the invitee has a duty to exercise due care for his or her own safety, including the duty to look and see what is around the invitee. And, the owner or occupier of land ordinarily has no duty to warn an invitee of an open, obvious, and present danger. See Casper, 316 Md. at 582, 560 A.2d at 1135; Tennant, 115 Md.App. at 389, 693 A.2d at 374.
The parties do not dispute that Sam's Club owed Johnson, a business invitee, the duty “to use reasonable and ordinary care to keep the premises safe for the invitee and to protect the invitee from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for [her] own safety, will not discover.” Casper, 316 Md. at 560, 560 A.2d at 1135. Thus, the first element of plaintiff's negligence claim is satisfied. This case turns on the second element: whether Sam's Club breached the duty of care it owed to Johnson.
2. Breach of Duty
To prove that the invitor breached its duty of care in a slip-and-fall case, the invitee must show “not only that a dangerous condition existed, but also that the proprietor ‘had actual or constructive knowledge of it, and that that knowledge was gained in sufficient time to give the owner the opportunity to remove it or to warn the invitee.'” Rehn, 153 Md.App. at 593, 837 A.2d at 984 (quoting Keene v. Arlan's Dep't Store of Balt., Inc., 35 Md.App. 250, 256, 370 A.2d 124, 128 (1977)); see Zilichikhis v. Montgomery Cty., 223 Md. App 158, 187, 115 A.3d 685, 702 (2015), cert. denied, 444 Md. 641, 120 A.3d 768 (2015); Joseph v. Bozzuto Mgmt. Co., 173 Md.App. 305, 315-316, 918 A.2d 1230, 1235 (2007).
As noted, plaintiff does not maintain that Sam's Club had actual knowledge of the spill. Instead, she relies on constructive knowledge. ECF 17-1 at 6. “Constructive knowledge” has been defined by the Maryland Court of Appeals as follows:
[T]he customer cannot recover unless it appears that the storekeeper could have discovered the condition by the exercise of ordinary care so that, if it is shown that the condition existed for a length of time sufficient to permit a person under a duty to discover it if he had exercised ordinary care, his failure to discover it may in itself be evidence of negligence sufficient to charge him with knowledge of it.Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 120, 113 A.2d 405, 409 (1955). Accord Alford v. Food Lion, LLC, CCB-12-3514, 2013 WL 5940130, at *2 (D. Md. Nov. 4, 2013); Black v. Kmart Corp., JKB-09-2351, 2010 WL 2292217, at *2 (D. Md. June 4, 2010).
Accordingly, to establish constructive knowledge, “it is necessary for the plaintiff to show how long the dangerous condition has existed.” Joseph, 173 Md.App. at 305, 918 A.2d at 1236. In Maans v. Giant of Maryland, LLC, 161 Md.App. 620, 639-40, 871 A.2d. 627, 638, cert denied, 388 Md. 98, 870 A.2d 43 (2005), the Maryland Court of Special Appeals identified two purposes underlying Maryland's requirement of “time on the floor” evidence:
(1) [I]t requires a demonstration of how long the dangerous condition existed prior to the accident so that the fact-finder can decide whether the storekeeper would have discovered it if he or she had exercised ordinary care; and (2) it also shows that the interval between inspections was at least as long as the time on the floor. Thus, proof of time on the floor is relevant, not only as to notice but also as to the issue of what care was exercised.Accord Oliver v. Maxway Stores, WGC-12-3033, 2013 WL 6091844, at *4 (D. Md. Nov. 18, 2013).
When constructive knowledge is alleged, “[w]hether there has been sufficient time for a business proprietor to discover, cure, or clean up a dangerous condition depends on the circumstances surrounding the fall.” Rehn, 153 Md.App. at 586, 837 A.2d at 984; see Adams v. Kroger Ltd. P'ship, 527 Fed. App'x 265, 268-69 (4th Cir. 2013) (per curiam) (evidence showed 19 minutes had elapsed from time of spill to time of customer's fall and concluding that it was for jury to determine whether that was sufficient time to put store on constructive notice).
As indicated, there is no evidence establishing the identity of the substance on the floor. Moreover, it is undisputed that plaintiff does not how long the substance had been on the floor before she slipped. ECF 16-2 at 37. It is also undisputed that plaintiff does not know how the substance got on the floor. ECF 16-2 at 37. Nor does plaintiff proffer any evidence to suggest that anyone was aware of the substance before plaintiff slipped on it. And, Front End Coach Tyler, who took plaintiff's report, also did not identify the source of the substance and did not know how long it had been on the floor as of the time of the incident. ECF 16-4, ¶ 4.
Moreover, the fact that plaintiff did not see anyone drop an item on the floor during the ten to fifteen minutes she was in the checkout line does not mean that the substance did not spill or leak during that time frame. Indeed, there is no evidence that plaintiff could have or would have seen someone spill the substance on the floor from where she was standing. Thus, it is possible that someone spilled the substance while Johnson was in the checkout line and she simply did not observe it. See Moulden, 239 Md. at 233, 210 A.2d at 726 (noting that the string bean on which plaintiff slipped “may have fallen from a grocery cart a few moments before she walked up the aisle[, and the plaintiff] did not see the bean before she slipped.”); see also Lexington Mkt. Auth., 233 Md. at 446, 197 A.2d at 148 (finding that plaintiff had not made a case of constructive notice because the oil or grease on which plaintiff slipped “may have leaked . . . only a few moments before she [slipped]”).
Likewise, plaintiff's argument that the photographs show a cart mark that is not hers fails to establish a genuine dispute of material fact because there is no evidence as to when the alleged cart mark was made. Again, any marks could have been made moments before plaintiff stepped in the substance. Further, evidence regarding “the size or nature of the spill is not a substitute for ‘time on the floor' evidence.” Saunders v. Wal-Mart Stores, Inc., 2010 WL 1416542, at *4 (D. Md. Apr. 5, 2010). The mere fact that the substance may have been smeared beforehand simply does not support a rational inference as to the length of time the dangerous condition existed.
Evidence is legally sufficient to warrant the submission of a case to a jury only if it rises above speculation and conjecture. Moulden, 239 Md. at 232, 210 A.2d at 726; see also Carter v. Shoppers Food Warehouse MD Corp., 126 Md.App. 147, 727 A.2d 958 (1999) (where plaintiff slipped and fell in produce department and claimed the cause was store's negligent maintenance of a mat in allowing edge to become turned up, court reasoned that plaintiff failed to present evidence that Store owner had actual or constructive knowledge of the condition where it was not clear how long the mat was turned up before the fall). Simply put, Johnson has not marshaled any evidence, aside from her own speculation, to show how long the dangerous condition was present.
In the light most favorable to plaintiff, the evidence presented is insufficient to establish that Sam's Club had constructive notice of the condition. See Maans, 161 Md.App. at 639-40; 871 A.2d at 638-39 (affirming judgment for defendant grocery store where plaintiff failed to establish that store was on notice of spilled water, of unknown origin and which was on the floor for an unknown amount of time); see also Rawls, 207 Md. at 123, 113 A.2d at 410 (affirming judgment in favor of defendant because, “even assuming that there was some water on the stairway before plaintiff fell, there was no evidence to indicate how it had been brought there or how long it had been there”).
And, Maryland courts have long held that it would be unreasonable to impose a duty on proprietors to continuously inspect their premises. See Lexington Mkt. Auth., 233 Md. at 446, 197 A.2d at 148 (finding that “it would be unreasonable to hold that it is [the proprietor's] duty to continuously inspect and sand down any and all leakage as soon as it occurs, even if we assume that periodic inspections are necessary”); Moulden, 239 Md. at 233, 210 A.2d at 726 (stating that it would be “unreasonable to hold that it is [a proprietor's] duty to conduct a continuous inspection tour of the store”); see also Rawls, 207 Md. 113; 113 A.2d 405 (holding that there was insufficient evidence to establish that the store owner had notice of the puddle of water on stairs of department store because it was possible that the customer created the condition upon entering the store from the rain).
In this case, Front End Coach Tyler stated in her affidavit that no other customers had reported slipping in the area of the incident prior to plaintiff. ECF 16-4, ¶ 5. Furthermore, Taylor stated that Sam's Club trains its associates to clean up known spills, or to stand and guard the spill. Id. ¶ 6. Because Sam's Club has no duty to inspect continuously, and plaintiff has not presented any evidence as to how long the substance was on the floor, Johnson cannot prevail on her negligence claim.
In sum, there is no question for the jury on Johnson's negligence claim because there is no evidence from which a reasonable jury could conclude that Sam's Club had constructive notice of the substance on which Johnson slipped. As a result, Sam's Club is entitled to judgment as a matter of law.
C. Contributory Negligence
Arguing in the alternative, defendant contends that plaintiff's recovery is barred by her own contributory negligence. ECF 16-1 at 11. In Maryland, contributory negligence is an affirmative defense that, if proved by the defense, completely bars a plaintiff's recovery. Coleman v. Soccer Ass'n of Columbia, 432 Md. 679, 690, 69 A.3d 1149, 1155 (2013); Kassama v. Magat, 136 Md.App. 637, 657767 A.2d 348, 359 (2001), aff'd, 368 Md. 113, 792 A.2d 1102 (2002).
“Contributory negligence is the neglect of the duty imposed upon all men to observe ordinary care for their own safety.” Campfield v. Crowther, 252 Md. 88, 93, 249 A.2d 168, 172 (1969). It is “the doing of, or omitting to do, some act or thing which a reasonably careful person would not have done or omitted to do under the circumstances, and which . . . thereby becomes the . . . proximate cause of the injury.” Miller v. Michalek, 13 Md.App. 16, 19, 281 A.2d 117, 118 (1971) (citation omitted). “The focus of the contributory negligence defense . . . ‘is whether the plaintiff took appropriate precautions to protect his [or her] own interests.'” Kassama, 368 Md. at 127, 792 A.2d at 1110 (internal citation omitted).
Defendant asserts that Johnson was contributorily negligent by failing to use reasonable care when walking and by failing to observe the substance on the floor. ECF 16-1 at 11. Sam's Club relies on plaintiff's deposition, in which she testified that she was looking straight ahead and did not see anything on the floor before she slipped. ECF 16-2 at 34. Defendant notes that plaintiff also testified that the area was well lighted and there was nothing obstructing the area. Id. at 3435. Plaintiff points to the video footage of the incident as evidence that she was “walking slowly, towards the exit, and was watching where she was walking.” ECF 17-1 at 7; see also ECF 16-3.
In G.C. Murphy Co. v. Greer, 75 Md.App. 399, 403; 541 A.2d 996, 998, the Maryland Court of Special Appeals held that the plaintiff's failure to observe and avoid an empty plastic carton in the middle of an aisle did not constitute contributory negligence as a matter of law. The court explained, id:
Under normal conditions, store patrons are entitled to rely upon the presumption that the proprietor will see that the passageways provided for their use are unobstructed and reasonably safe.
Additionally, in Wiseman v. Wal-Mart Stores, Inc., SAG-16-4030, 2017 WL 3334858, at *7 (D. Md. 2017), Judge Gallagher rejected defendant's argument that plaintiff was contributorily negligent as a matter of law when she failed to observe and slipped on a blackish, dark liquid on the floor. The court concluded that “a jury could find that a prudent person while shopping at a store would not be continuously looking at the floor[.]” Id.
Of import here, “[a]s a general rule, the issue of contributory negligence is a question for the jury ‘[w]here there is a conflict of evidence as to material facts relied on to establish contributory negligence, or more than one inference may be reasonably drawn therefrom.'” Flippo, 348 Md. at 703, 705 A.2d at 1155 (quoting Reiser v. Abramson, 264 Md. 372, 377-78, 286 A.2d 91, 93 (1972)); see also Belleson v. Klohr, 257 Md. 642, 646, 264 A.2d 274, 276 (1970) (“If there is any competent evidence, however slight, leading to support the plaintiff's right to recover, the case should be submitted to the jury.”); Angkuw v. Rosenthal, No. 185, Sept. Term 2016, 2017 WL 4390428, at *7 (Md. Ct. Spec. App. Oct. 3, 2017). Because I conclude that there is no evidence that defendant had constructive notice of the spill, I need not resolve the issue of contributory negligence.
IV. Conclusion
Sam's Club is entitled to summary judgment because there is no evidence that defendant had actual or constructive notice of the substance on the floor at the time that plaintiff slipped. Therefore, for the foregoing reasons, I shall grant the Motion.
An Order follows, consistent with this Memorandum Opinion.