Carter v. Shoppers Food Warehouse MD Corp.

DAVIS, Judge. On November 21, 1993, appellant Sarah Carter fell, injuring her knee when she slipped on a rubber mat in the produce section of a grocery store owned by appellee Shoppers Food Warehouse MD Corporation. Subsequently, appellant filed a complaint on October 1, 1996 in the Circuit Court for Prince George’s County, alleging that appellee negligently failed to maintain its premises in a safe condition. Following discovery, appellee filed a motion for summary judgment on June 18, 1997, and the court (Ahalt, J.) held a hearing on the motion on November 10, 1997.

Before the court ruled on the summary judgment motion, appellee filed a motion in limine on December 8,1997 to exclude appellant’s safety expert from testifying at trial. In an order dated February 10, 1998, the court granted both appellee’s motion for summary judgment and its motion in limine. ¹⁵¹ Appellant timely filed this appeal on February 24,1998, 1 and presents for our review four questions that we restate as follows: I. Did the circuit court abuse its discretion by granting appellee’s motion in Limine and excluding the testimony of appellant’s expert witness?

II

Was the circuit court clearly erroneous in its finding that the facts were insufficient to allege that appellant had notice of the condition of the rubber mat?

III

Did appellant generate disputes of material fact and the need for credibility determinations resulting in the circuit court having abused its discretion by granting summary judgment to appellee?

IV

Did the circuit court’s ruling deprive appellant of her right to a jury trial? We answer all questions in the negative and affirm the circuit court’s judgment for the reasons set forth herein. FACTS Appellant, currently eighty years of age, entered the Shoppers Food Warehouse store in Queenstown, Maryland on the morning of November 21, 1993. Since the store opened in 1992 appellant had been a regular customer, shopping there approximately once each week.

After walking into the store, appellant procured a shopping cart and selected a few items near the entrance. Upon reaching the produce section, 2 appellant left her cart parked and walked across a carpet or rubber floor mat to get some vegetables. In her deposition, appellant stated that she saw a few fallen beans on the floor and, after having “rushed over to the ¹⁵² beans” to acquire some for herself, she turned to return to her cart. As appellant attempted to put the beans into her cart, she fell, injuring her knee, and, when she looked up, she realized that one corner of the carpet was turned up.

Appellant did not notice whether the carpet was turned up before she fell; however, she believed the comer of the carpet was the cause of her accident. Her deposition testimony included the statement, “I slipped on that carpet, rug, and the end of the carpet, evidently I knocked that up or it was already up and my shoes or something went under it. That is the only thing I know.” In addition, appellant thought she stepped on a fallen bean, although she did not think the bean at all caused her to slip and fall. Subsequent to appellant’s fall, the store manager at the time, Robert Thacker, interviewed appellant and completed an incident report. 3 In his deposition, Thacker stated that the store maintains a daily floor sweep log, in which employees are supposed to document when they complete a sweep and include their initials next to the time.

Although it is not a written policy of the store, Thacker related that, through on-the-job training, employees learn that the produce area should be swept every one-half hour. With respect to appellant’s slip and fall, Thacker’s incident report reflects that the fall occurred at 12:05 p.m., at which time a produce clerk, Ellis Woods, had just completed sweeping the produce area. Entries in the daily floor sweep log were made at 11:15 a.m. and 12:00 p.m.; however, the initials next to the specified times read “AW,” rather than “EW.” 4 The sweep log does not have the initials “EW’ next to any time until 4:05 p.m., thereby ¹⁵³ creating a dispute between the parties over the accuracy of Thacker’s incident report. During discovery, appellant retained a fire and safety expert, Eugene M. Sober, to investigate the accident.

Sober concluded that the carpet was turned up before appellant fell and the tumed-up carpet was the cause of appellant’s fall. He further determined that the carpet itself was substandard because it was thin and should have been heavy duty and the turned-up carpet could have existed for an unacceptable period of time during which appellee’s management should have noticed the dangerous condition it created. In order to reach these conclusions, Sober relied on his education, training, and experience, specifically in the area of building codes and standards, as well as on his investigation of the accident at issue. Sober’s investigation, however, consisted solely of interviewing appellant for approximately twenty to thirty minutes and inspecting the grocery store for another fifteen minutes.

Also, Sober physically moved and pushed the carpets with his hands and feet but failed to perform any laboratory testing. At the time of Sober’s observation, over four years after the accident, the produce section had been reorganized and the store had new carpets supplied by a company different than that in 1998. In addition to failing to test the mats scientifically, Sober did not interview anyone from appellee’s previous carpet supplier, nor did he attempt to ascertain the nature of the carpets present when the accident occurred. 5 Furthermore, Sober was not aware of any local or state laws requiring a particular weight or type carpet for safe use in grocery stores. 6 Finally, Sober’s conclusion that the ¹⁵⁴ carpet presented a hazard was premised upon appellant’s assumption that the carpet was turned up before she fell. On June 20, 1997, appellee filed a motion for summary judgment, asserting that it was entitled to judgment as a matter of law because there was no genuine issue of material fact.

In. addition, on December 11, 1997, appellee filed a motion in limine to preclude Sober’s testimony, arguing that the factual basis for his testimony was insufficient. The court granted both of appellee’s motions in an order dated February 10,1998, stating the following: After reviewing arguments and case law on the issue of ‘ expert testimony, this [cjourt concludes that an insufficient factual basis exists to support the expert testimony. Consequently, testimony of [appellant’s] expert will not be admissible. Additionally, this [c]ourt concludes that there are insufficient facts to establish a prima facie case of negligence.

Therefore, [appellee’s] Motion for Summary Judgment is granted. This appeal was noted on February 24,1998. DISCUSSION I Appellant contends that the circuit court abused its discretion by granting appellee’s motion in limine and excluding the testimony of appellant’s expert witness, Eugene M. Sober. The admissibility of expert testimony is a matter soundly within the trial court’s broad discretion, and the court’s decision rarely will constitute grounds for reversal.

See Franch v. Ankney, 341 Md. 350, 364 , 670 A.2d 951 (1996); Hartless v. State, 327 Md. 558, 576 , 611 A.2d 581 (1992); Hartford Accident and Indem. Co. v. Scarlett Harbor Assocs. Ltd. Partnership, 109 Md.App. 217, 287 , 674 A.2d 106 (1996), aff'd, 346 Md. 122 , 695 A.2d 153 (1997). 7 Therefore, a trial ¹⁵⁵ judge’s decision in this area will not be disturbed absent “abuse of discretion, error of law, or other serious mistake.” N.B.S., Inc. v. Harvey, 121 Md.App. 334, 339 , 709 A.2d 162 (1998). According to appellant, appellee misled the trial court into performing a Frye-Reed test, 8 which appellant contends was inappropriate, considering Sober’s conclusions did not involve a novel scientific technique, but rather an opinion on safety measures.

Although we agree with appellant that the Frye-Reed test is irrelevant, the court’s order reflects that it correctly reviewed the expert’s opinion using the elements of Rule 5-702, not the Frye-Reed test. Maryland Rule 5-702 (1999) provides: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony. Therefore, expert testimony is not necessary when it relates to “matters of which the jurors would be aware by virtue of common knowledge.” Hartford Accident and Indem.

Co., 109 Md.App. at 257 , 674 A.2d 106 . An expert’s opinion “has no ¹⁵⁶ probative force unless there is a sufficient basis upon which to support his conclusions.” N.B.S., Inc., 121 Md.App. at 340 , 709 A.2d 162 (quoting Worthington Constr. Corp. v. Moore, 266 Md. 19, 29 , 291 A.2d 466 (1972)); see also Lynn McLain, Maryland Evidence § 705.1 (1987) (“[i]f no adequate basis for the opinion is shown, the opinion should not be admitted.”). The trial court’s order stated: The dispute turned on whether a sufficient factual basis existed to support his testimony....

In the expert’s deposition, it was discovered that there are no scientific or professional standards to support his conclusion, that the expert performed no scientific testing, the only testing done was to flip over the corner of the mat with his foot, he interviewed [appellant] for twenty to thirty minutes, he inspected [the grocery store] for fifteen minutes four and a half years after the accident occurred, and the mats inspected were made by a different company than [appellee] used at the time of the accident. Additionally, there is no law nor regulation governing the particular thickness of floor mats. Based on the above analysis of applicable facts and law, this court grants the motion in limine and finds the expert’s testimony inadmissible. The trial court excluded Sober from testifying because his opinion was inappropriate and was not supported by a sufficient factual basis, not because his methodology had not yet gained general acceptance.

In her argument that the court erred by excluding Sober, appellant first asserts that qualifying as an expert is not onerous and direct knowledge is not a requirement. This contention is undisputed and, although appellee concedes that Sober is well qualified as a safety expert, it submits that Sober did not have a sufficient factual basis to support his testimony. In response, appellant’s brief reads, “an expert is not required to possess direct personal knowledge of a matter in order to express an opinion and ‘complaints about the manner in which the expert derived and stated his opinion go to the weight to be given to his testimony rather than its admissibility.’ ” ¹⁵⁷ (quoting Bastian v. Laffin, 54 Md.App. 703, 713 , 460 A.2d 623 (1983)). Therefore, appellant asserts that the court’s exclusion of Sober’s opinion because of an insufficient factual basis should have gone to the weight of his testimony, not the admissibility.

We disagree with appellant’s reliance on Bastían, which involved an appraiser whose testimony included within it a valuation of personal property from an estate. Appellant omitted an instrumental phrase from the above-quoted passage from Bastían. The actual language reads, “stated his opinion as to value.” See id. at 713, 460 A.2d 623 (emphasis added). Thus, while an objection to an expert’s valuation of property goes to the weight of the testimony, Sober’s opinion is not remotely relative to a value analysis.

Appellant also cites Stickell v. City of Baltimore, 252 Md. 464 , 250 A.2d 541 (1969), for the proposition that attacks on the foundation of an expert’s opinion are made to the weight of the opinion, not its admissibility. The Court of Appeals in Stickell simply stated in a footnote that a property owner could make an opinion as to the value of his property without qualification as an expert. See id. at 473 n. 1, 250 A.2d 541 . In fact, the Court held that the trial court did not abuse its discretion by excluding the testimony of an appraiser offered as an expert despite the potential that his extensive knowledge of real estate and intuitive approach may have provided accurate results.

See id. at 474-75 , 250 A.2d 541 . The Court concluded, “he was unable to explain his results in terms of normal methods of appraisal, so that the trial court was justified in finding that his testimony could have been of no assistance to the jury.” Id. This rationale is analogous to the instant case, in which appellant’s expert had extensive knowledge of safety standards and regulations, but limited his investigation to the testimony of an interested party and a cursory analysis of the store and its current carpets. 9 Appellant argues that appel- ¹⁵⁸ lee’s refusal during discovery to provide “scientific information” regarding the carpet at issue prevented Sober from making a complete evaluation. Specifically, appellant submits that appellee attempted to conceal the nature of the mats, and she points to an interrogatory answer in which appellee responded that it did not know the name of the mats.

This allegation is unfounded when appellee’s answer is viewed in full: The floormats in use were standard commercial, grade floor-mats, which we believe to be standard throughout the retail industry. We do not know the brand name of the mats. This information may be available from the vendor who supplied the mats for the subject location, which is Mat-works. The mats were leased from Matworks, who would deliver clean mats to the store location and remove all existing mats at the time for inspection and cleaning at their facility.

Appellee did not conceal information regarding the specifications of the, floormats. Instead, it referred appellant to the company from which the grocery store had obtained the mats. Appellant may not bolster her expert’s analysis by claiming to have been stonewalled during discovery. The trial court did not err in determining that Sober’s testimony would not assist the jury’s understanding of a fact in issue because a juror’s common knowledge sufficiently provides him or her the ability to comprehend a slip and fall on a carpet.

Notably absent from Sober’s opinion were both statutory guidelines requiring a certain weight or type carpet and scientific testing of the actual carpet at issue. Without such information, there was no foundation upon which to ¹⁵⁹ admit his testimony that the carpet at issue was inappropriate or dangerous. 10 Keeping in mind that the court had wide discretion in making this determination, the trial court did not abuse this discretion by excluding Sober’s testimony. II and III Appellant next argues that the trial court was clearly erroneous in finding the facts insufficient to prove that appellee had notice of the rubber mat’s condition. Appellee’s knowledge is a crucial element of appellant’s claim.

Consequently, we also shall address within this section appellant’s third assertion, that she generated disputes of material fact and a need for credibility determinations resulting in the court having abused its discretion by granting summary judgment to appellee. Essentially, appellant argues that the court erred in granting appellee summary judgment. In deciding a motion for summary judgment, the court must determine whether a genuine dispute as to material facts exists and whether either party is entitled to judgment as a matter of law. Tennant v. Shoppers Food Warehouse Md Corp., 115 Md.App. 381, 386 , 693 A.2d 370 (1997) (citations omitted).

Furthermore, the disputed fact must be material, defined as “a fact that will alter the outcome of the case depending upon how the factfinder [sic] resolves the dispute over it.” Id. at 387 , 693 A.2d 370 (quoting Bagwell v. Peninsula Reg’l Med. Ctr., 106 Md.App. 470, 489 , 665 A.2d 297 (1995), cert. denied, 341 Md. 172 , 669 A.2d 1360 (1996)). Finally, “all disputes of fact, as well as all inferences reasonably drawn from the evidence, must be resolved in favor of the non-moving party.” Id, (citing Bagwell, 106 Md.App. at 488 , 665 A.2d 297 ). When reviewing a trial court’s decision on a motion for summary judgment, an appellate court determines ¹⁶⁰ whether there was sufficient evidence to create a jury question.

See Martin v. ADM Partnership, 106 Md.App. 652, 657 , 666 A.2d 876 (1995), rev’d on other grounds, 348 Md. 84