Blood v. Hamami Partnership, LLP

DEBORAH S. EYLER, Judge. The Circuit Court for Howard County granted a motion for judgment in favor of Hamami Partnership, LLP (“Hamami”), and CR Restaurant, Inc. (“CR”), the appellees, in a premises liability action brought against them by Andrew Blood, the appellant. On appeal, the appellant asks two questions, which we have rephrased: ³⁷⁹ I. Did the trial court err in granting the appellees’ motion for judgment on the ground that the appellant did not make out a prima facie case of negligence?

II

Did the trial court err in granting the appellees’ motion for judgment on the ground that the appellant assumed the risk of his injuries, as a matter of law? For the following reasons, we shall affirm the judgment of the circuit court. FACTS AND PROCEEDINGS This case arises out of an accident that occurred on March 16, 1996, behind a Burger King restaurant on Center Park Drive in Howard County. Because we are reviewing the trial court’s decision to grant the appellees’ motion for judgment at the close of the appellant’s case, we shall recite the facts as adduced at trial in the light most favorable to the appellant.

Nelson v. Carroll, 355 Md. 593, 600 , 735 A.2d 1096 (1999) (citing Md. Rule 2—519(b)). On the day in question, the appellant was working as a driver and delivery man for a food distribution company. The company had been selected to service a food distribution route that included the Burger King on Center Drive, and had started doing so in January or February 1996. The employees running the route would drive a tractor trailer to Delaware in the early morning hours, pick up the products to be delivered, and drive to various destinations in Maryland, delivering the products to the businesses that had ordered them.

By the day of the accident in this case, the appellant had been working for several weeks on the delivery route that included the Burger King on Center Park Drive, and had made between 12 and 24 deliveries to that Burger King. Whenever the appellant rode the route he had a partner with him. The Burger King in question is located in a portion of a building owned by Hamami. Hamami leased that portion of the building to CR, which operated the Burger King.

The ³⁸⁰ Burger King occupies about one-third of the building. Two other businesses occupy the other two-thirds of the building. The facades of the Burger King and the two other businesses in Hamami’s building face Center Park Drive. As one faces the building, the Burger King occupies the third of the building on the left.

The spaces occupied by the three tenants run from the front of the building to the back, in thirds. The carry-out window for the Burger King is on the left side wall of the building, and the “drive-thru” lane to the carry-out window runs along the back of the building and the left side wall. A sidewalk runs across the. entire back of the building. Three doors, all to the rear of the establishments, open onto the sidewalk.

One can access the sidewalk from the parking area on the right side of the building (as one faces it). There is a short curb from the parking lot to the sidewalk that has a small built-in concrete ramp, so one can roll a cart on wheels from the parking lot to the sidewalk. Once on the sidewalk, a cart can be rolled to any of the doors at the back of the building, including the Burger King back door. If one were standing in the Burger King back door looking out, one would see the sidewalk we have just described, and also a short, straight sidewalk, which we shall call a ramp, leading straight over the grass next to the sidewalk and to the drive-thru lane.

The ramp is sloped, because the rear of the building is higher than the level of the drive-thru lane. There also are short, straight sidewalks (ramps) leading from the two other back doors to the drive-thru lane. They are not steeply sloped, although they are somewhat sloped. The area to the back of the building, beyond the drive-thru lane, is the rear parking lot.

A small grass median strip runs parallel to the drive-thru lane, dividing it from the rear parking lot. On the day in question, the appellant and his partner, John Murphy, drove to Delaware in the early morning hours, picked up their product, and made several deliveries before arriving ³⁸¹ at the Burger King at about 4 p.m. The Burger King delivery was their second-to-last stop for the day. The appellant and Murphy drove their tractor trailer to the rear parking lot of the Burger King, and parked.

One of them, the appellant does not recall who, went inside the restaurant with their paper work. They then opened the refrigerated section of their truck, unloaded a “block” of six or eight large boxes of frozen french fries, and placed them on a hand truck. The appellant described the blocks as being heavy, about 400 pounds. He stacked them on the hand truck so he could see over them.

The appellant testified that he wheeled the loaded hand truck around the median strip separating the parking lot and the drive-thru lane. He then pushed the hand truck along the drive-thru lane (from left to right, if one were standing in the Burger King back door looking out), to the ramp leading to the Burger King back door. He used a portable curb plate to roll the hand truck onto the ramp. After taking a couple of steps on the ramp, the appellant “lost [his] footing.” He is not sure which of his feet gave way, but thinks it was his right foot.

The appellant tried to keep the hand truck from falling backward on him and rolling down the ramp, so he “kind of went down with [his] left leg, left side and just kinda caught the weight of it on [his] forearm.” The appellant was hurt and could barely walk. He stayed in the tractor trailer after that, while Murphy completed the delivery. The appellant testified that he did not know why he lost his footing on the ramp. He further testified that he noticed a dark, discolored area “in the middle of the ramp,” that looked like grease, “just the color ... it just was dark.” The ramp had other stains on it, but this was a darker area, in the middle.

The appellant had seen the dark area on the ramp before the day of the accident. According to the appellant, he and his partner always used the ramp to the Burger King back door to wheel product into the Burger King. He thought it was proper for them to use ³⁸² that ramp because the ramp was directly behind the part of the building occupied by the Burger King. The appellant was never told to use that ramp, however.

Moreover, he was not told not to use the sidewalk next to the rear of the building or not to use the ramps to the two other back doors of the building. There were no signs or restrictions about which approach to use or not to use. The evidence established that there was one back door to the Burger King. The sidewalk approach to the Burger King back door — the approach the appellant did not take — would have taken him over the built-in curb plate at the end of the sidewalk, along the sidewalk, which is not heavily sloped, and to the door.

The appellant also could have taken a modified version of the sidewalk approach by wheeling his product up either of the two ramps leading to the two other back doors, and then taking the sidewalk to the Burger King back door. The ramp approach to the Burger King back door — the approach the appellant took — went around the median strip, up the drive-thru lane, up the ramp, which had a steep slope, and to the Burger King back door. When asked whether it was “feasible” to take the sidewalk approach to the door, instead of the ramp approach to the door, the appellant answered no. He explained, however, that the sidewalk approach was not feasible because it was a longer route; if he and his partner had used the sidewalk approach, their delivery time would have been twice what it was by using the ramp approach.

As we have noted, before March 16, the appellant had used the ramp to the Burger King back door for deliveries many times. When asked whether, during that time, there was “anything about that ramp that you thought was unusual or dangerous,” he responded: “Absolutely. The grade of the ramp. That was foremost in my mind was the pitch of that ramp.” He then testified that on more than one occasion before the day of the accident he had told people working in the Burger King that he thought the ramp was unsafe.

The appellant appears to have been pursuing alternative theories of recovery at trial. He called expert witnesses who ³⁸³ testified that the slope of the ramp was steep, and did not meet the standards of the Howard County Building Code. Through Mr. Hamami, who was called adversely, the appellant established that the ramp was added to the building after construction already was underway, and therefore was not included in the building plans approved by Howard County. Thus, one of the appellant’s theories was that he lost his footing and slipped because of the dangerously steep slope of the ramp.

The appellant also was attempting to prove, somewhat inconsistently, that he had slipped on an area of grease on the ramp. In granting the appellees’ motion for judgment, the circuit court ruled as follows. First, the court found that no evidence had been presented of what the appellant had slipped on; indeed, the appellant’s testimony did not include evidence that he had slipped on any substance at all or, if he had, what the substance was. In addition, there was no evidence connecting the dark area on the ramp to the location of the appellant’s foot when he slipped.

Second, with respect to the alleged steepness of the ramp, the court found that even assuming that the steepness of the slope of the ramp would make it unacceptable under county standards, the appellant was fully aware of the condition of the ramp and of the risks attendant to it — and indeed had complained more than once, before the day of the accident, that the ramp was dangerously steep. Nevertheless, and with full knowledge of the danger, he used the ramp. The court concluded that the appellant had assumed the risk of his injuries, as a matter of law. Additional facts will be recounted as necessary to our discussion of the issues.

DISCUSSION I The duty of care owed by an owner or occupier of premises is a function of his legal relationship to the person ³⁸⁴ entering on the premises. In this case, the appellant was a business invitee. Accordingly, he was owed a duty of “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 his own safety, will not discover.” Bramble v. Thompson, 264 Md. 518, 521 , 287 A.2d 265 (1972)(citing Morrison v. Suburban Trust Co., 213 Md. 64, 68-69 , 130 A.2d 915 (1957); Peregoy v. Western Md. R.R. Co., 202 Md. 203, 207 , 95 A.2d 867 (1953)); and Pahanish v. Western Trails, Inc., 69 Md.App. 342, 355 , 517 A.2d 1122 (1986)(“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”). Thus, to establish a prima facie case of negligence, the appellant needed to adduce evidence showing that there was a dangerous or defective condition on the premises, of which the appellees were aware, and that the appellees failed to exercise ordinary care to make the premises safe by curing the danger or defect.

We agree with the trial court that to the extent that the appellant’s theory of negligence was that the ramp was in a dangerous and defective condition because there was a substance on it that made it unsafe to walk on, he failed to make out a prima facie case. The appellant’s testimony, viewed in the light most favorable to him, showed only that there was a discolored area on the ramp that he had noticed before the day of the accident; and that he did not know what the discolored area was. Evidence of a discoloration on a ramp that is nothing •more than a concrete sidewalk is not proof of a dangerous or defective condition. Discoloration of concrete does not equate to the presence of a substance on the concrete, and there was no evidence presented by the appellant that a substance was present on the ramp.

The appellant testified that he did not know why he lost his footing. The mere fact that he lost his ³⁸⁵ footing did not mean that there was something on the ramp that he slipped on. People sometimes lose their footing when there is nothing defective or out of the ordinary about the surface on which they are walking. The appellant’s evidence, viewed in a light most favorable to him, could not have supported a reasonable jury finding: 1) that there was a slippery substance on the Burger King ramp, or 2) that there was any causal connection between the area of discoloration on the ramp and the appellant’s losing his footing.

Accordingly, the trial court properly granted the appel-lees’ motion for judgment on this theory. II We also agree with the trial court that, to the extent the appellant was trying to prove negligence on the theory that the steepness of the ramp was a dangerous and defective condition of the property, the appellant’s own testimony established that he had assumed the risk of his injury, as a matter of law. In Crews v. Hollenbach, 358 Md. 627 , 751 A.2d 481 (2000), the Court of Appeals explained the doctrine of assumption of the risk as follows: Assumption of the risk serves as a complete bar to a plaintiffs recovery. See ADM Partnership v. Martin, 348 Md. 84, 91 , 702 A.2d 730, 734 (1997); Saponari v. CSX Transp., Inc., 126 Md.App. 25, 31 , 727 A.2d 396 , 399 (1999), cert. denied, Saponari v. CSX Transp., Inc., 353 Md. 473 , 727 A.2d 382 (1999).

The defense is grounded on the theory that a plaintiff who voluntarily consents, either expressly or impliedly, to exposure to a known risk cannot later sue for damages incurred from exposure to that risk. See Imbraguglio v. Great Atlantic & Pacific Tea Co., 358 Md. 194 , [212], 747 A.2d 662, 672 (2000); Schroyer v. McNeal, 323 Md. 275, 282 , 592 A.2d 1119, 1122 (1991); Rogers v. Frush, 257 Md. 233, 243 , 262 A.2d 549, 554 (1970); Boddie v. Scott, 124 Md.App. 375, 380 , 722 A.2d 407, 409 (1999). In defining the defense of assumption of the risk, we have stated that: ³⁸⁶ [the defense] rests upon an intentional and voluntary exposure to a known danger and, therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of conduct