Giant of Md. v. Webb

Giant of Maryland LLC v. Karen Webb, No. 413, September Term, 2019. Opinion by Kenney, J. NEGLIGENCE – PREMISES LIABILITY – STANDARD OF CARE – STATUS OF ENTRANT – INVITEES – CARE REQUIRED IN GENERAL A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. But the owner or possessor of land is not an insurer of the safety of his customers while they are on the premises and no presumption of negligence on the part of the owner arises merely from a showing that an injury was sustained in his store. LABOR AND EMPLOYMENT – RIGHTS AND LIABILITIES AS TO THIRD PARTIES – WORK OF INDEPENDENT CONTRACTOR – EXTENT OF CONTROL – IN GENERAL “General control over an independent contractor’s work” would not be sufficient to extend liability to Giant for Mr. Winzer’s actions.

See Appiah v. Hall, 416 Md. 533, 563 . To do that, it would be necessary to demonstrate that Giant had “retained control over the operative detail and methods” of Mr. Winzer’s work, including “the very thing from which the injury arose.” Id. at 555 (citing Gallagher’s Estate v. Battle, 209 Md. 592, 602 (1956)). EVIDENCE – ADMISSIBILITY IN GENERAL – MATERIALITY – TENDENCY TO MISLEAD OR CONFUSE The Reptile Theory approach is similar to a Golden Rule argument. It encourages jurors to favor personal safety and the protection of family and community; Golden Rule arguments “appeal[] to the jury’s own interests” and ask jurors “to place themselves in the shoes of the victim.” Lee v. State, 405 Md. 148, 171 (2008) (internal citations omitted).

When such arguments “invite[] the jurors to disregard their oaths and to become non-objective viewers of the evidence which has been presented to them, or to go outside that evidence to bring to bear on the issue of damages purely subjective considerations” they are improper. Leach v. Metzger, 241 Md. 533, 536-37 (1966). EVIDENCE – PRESUMPTIONS – EVIDENCE WITHHELD OR FALSIFIED – SUPPRESSION OR SPOLIATION OF EVIDENCE Spoliation is “[t]he intentional destruction, mutilation, alteration, or concealment of evidence, usu[ally] a document.” Keyes v. Lerman, 191 Md. App. 533, 537 (2010). A spoliation instruction is given in a civil case when “a party has destroyed or failed to produce evidence.” Cost v. State, 417 Md. 360, 370 (2010).

The instruction addresses: the destruction or failure to preserve evidence, rendering it unavailable, and not merely the failure to produce evidence that is available, or, indeed, the failure to create evidence, but, for purposes of the permissible inference, it does distinguish between destruction or failure to preserve with an intent to conceal the evidence and destruction or failure to preserve that is the product of negligence. Keyes, 191 Md. App. at 540 . Before the instruction may be given, the requestor, “[b]y necessity,” has the burden to establish and the court would have to find that the video “actually existed.” Solesky v. Tracey, 198 Md. App. 292, 309 (2011). There can be no act of destruction or failure to preserve evidence not proven to exist, and therefore no act or omission from which inferences can arise.

APPEAL AND ERROR – HARMLESS AND REVERSIBLE ERROR – PARTICULAR ERRORS – INSTRUCTIONS – IN GENERAL Instructions “as to facts and inferences” are not normally required. And when missing evidence permits multiple inferences to be drawn, a trial judge’s “emphasis of one possible inference out of all the rest . . . can be devastatingly influential upon a jury although unintentionally so.” Keyes, 191 Md. App. at 542 (quoting Yuen v. State, 43 Md. App. 109, 114 (1979)). APPEAL AND ERROR – HARMLESS AND REVERSIBLE ERROR – IN GENERAL – PREJUDICE; PREJUDICIAL ERROR– IN GENERAL An instruction that “is misleading or distracting for the jury, and permits the jury members to speculate about inapplicable legal principles,” is potentially prejudicial. Barksdale v. Wilkowsky, 419 Md. 649, 669 (2011).

Circuit Court for Anne Arundel County Case No. C-02-CV-17-003054 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 413 September Term, 2019 ______________________________________ GIANT OF MARYLAND LLC v. KAREN WEBB ______________________________________ Leahy, Wells, Kenney, James A., III (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Kenney, J. ______________________________________ Filed: February 25, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-02-25 14:14-05:00 Suzanne C. Johnson, Clerk Appellee, Karen Webb, was injured on December 4, 2014 while shopping at a supermarket owned and operated by appellant, Giant of Maryland, LLC (“Giant”). On October 25, 2017, she sued Giant in the Circuit Court for Anne Arundel County, advancing two causes of action: (1) negligence and (2) negligent hiring, training, and supervision.1 A jury returned a verdict in her favor. In its timely appeal, Giant presents four questions, which we have reordered, slightly rephrased, and consolidated into three for our review:2 1 According to her Complaint, an “employee of [Giant] was pushing a shopping cart in one of the shopping aisles as part of his job duties at the premises and within the scope of his employment,” and he “failed to safely operate the shopping cart, failed to pay proper time and attention to pushing the shopping cart.” Upon learning that the person operating the cart was Keydonne Winzer, an employee of PepsiCo, Ms. Webb amended her complaint on December 22, 2017 to add PepsiCo as a defendant. Mr. Winzer was not sued individually.

PepsiCo moved to dismiss based on limitations, and the trial court granted PepsiCo’s motion and struck the amended complaint. Mr. Winzer was employed by FedEx at the time of trial. 2 Giant asked: I. Whether the circuit court erred in denying Giant’s motion for judgment whereby permitting [Ms.] Webb to argue a new, alternative theory of liability at the close of trial?

II

Whether the circuit court erred in denying Giant’s motion for summary judgment?

III

Whether the circuit court erred in denying Giant’s motion in limine to exclude argument that Giant owed [Ms.] Webb a non-delegable duty of “safety” when such argument misstated the law, was irrelevant, and was wholly prejudicial?

IV

Whether the circuit court erred in charging the jury with a spoliation instruction when there was no evidence or findings that video footage of the incident existed or was destroyed? I. Did the circuit court err in denying Giant’s motion for summary judgment prior to trial and its subsequent motion for judgment?

II

Did the circuit court err in denying Giant’s motion in limine to exclude argument that Giant owed Ms. Webb a non-delegable duty of “safety”?

III

Did the circuit court err or abuse its discretion in giving a spoliation instruction? For the reasons set forth herein, we shall reverse. FACTUAL AND PROCEDURAL BACKGROUND The Incident Ms. Webb’s injury occurred in the frozen-foods aisle at Giant. She testified: I turned around and to put the stuff in my – in the basket and I stepped back and I was struck in the back.

And I fell backwards, struck my back and my buttocks which we have pictures to show the bruising that I did hit something and I fell to the ground. And I assume it was a Pepsi person that was pushing the cart.3 Ms. Webb’s prior medical history indicated prior incidents of dizziness and falling. Giant’s incident report and some medical records suggest that she had reported being dizzy and falling when the incident occurred. Keydonne Winzer, the person “pushing the cart,” denied striking Ms. Webb.

He testified: Okay. . . . We have those wooden pallets that we have our crates and things on and I was pulling it to the back of the store. As I’m going down the aisle, I recognize that there’s a lady who is knelt down in front of one of the 3 The terms “pallet cart” and “pallet jack,” were used interchangeably in this case. They are also known as pallet trucks, pallet pumps, pump trucks, scooters, dogs, or jiggers and used to lift and move pallets.

In her Complaint, Ms. Webb alleged that she was struck by a “store pallet cart.” 2 freezer doors. So generally I told her – well, normally when I do the pallets, I’ll let the customers know, hey, I’m behind you or I’m on the aisle. So I said, “Hey I’m behind you.” I don’t think she really heard me because she stood up, it seems that she lost her balance and when she stumbled backwards, she hit the edge of the pallet and then hit the floor. As to his employer, he testified: [Giant’s Counsel]: Okay.

You received all your training from Pepsi? [Mr. Winzer]: Yes. [Giant’s Counsel]: Did you ever receive training from Giant? [Mr. Winzer]: No. [Giant’s Counsel]: Did you ever receive any type of payment directly from Giant? [Mr. Winzer]: No. [Giant’s Counsel]: Were you ever an employee of Giant? [Mr. Winzer]: No. [Giant’s Counsel]: You were always an employee of Pepsi? [Mr. Winzer]: Yes. * * * [Giant’s Counsel]: Now, your purpose while you were at the Giant that day was to make sure Pepsi product was stocked, correct? [Mr. Winzer]: Yes. [Giant’s Counsel]: Okay. Did anybody from Giant ever tell you how to stock Pepsi products? [Mr. Winzer]: No. * * * 3 [Giant’s Counsel]: In your experience as a merchandiser, were you ever followed by any store employee to watch – so they’d watch you do your job? [Mr. Winzer]: No. [Giant’s Counsel]: Because they’re doing their job, right? [Mr. Winzer]: Right. Sometimes afterwards, that’s – that would be to check to see if I did the job the correctly. [Giant’s Counsel]: If it’s stocked properly? [Mr. Winzer]: Right. * * * [Giant’s Counsel]: [Giant] did not hire or fire you? [Mr. Winzer]: No. [Giant’s Counsel]: It did not control your conduct while you were in the store, is that correct? [Mr. Winzer]: No. Motion for Summary Judgment On September 14, 2018, Giant moved for summary judgment: For the purpose of this motion, and for the resolution of the claims against Giant, while there are disputed facts regarding the manner in which the occurrence happened, it is undisputed that the alleged tortfeasor was not an employee of Giant. Because the person that may have struck the Plaintiff was not an employee or agent of Giant, Giant cannot be vicariously responsible for that person’s alleged negligence.

Additionally, there cannot be a cause of action for negligent hiring, supervision, or retention. Plaintiff’s claims all fail as a matter of law, and Giant is entitled to judgment in its favor. Ms. Webb, in opposition to the motion, stated: 4 The man was not wearing any type of uniform and did not identify himself to Ms. Webb and as a result [she] was not aware whether he was an employee of Giant. Exhibit A at 31-3 through 17.

However, [she] assumed that the man that struck her was an employee of Giant. * * * Mr. Winzer has testified that Defendant Giant’s pallet jacks were known and understood to be available for his use and that of other such third-party vendors with the express permission and consent of Defendant Giant. . . . Mr. Coradini [Giant’s corporate representative] also explained that Defendant Giant would direct vendors on such matters as where to place items and displays and “correct” them where a safety issue was observed. * * * The Motion for Summary Judgment must be denied because Giant is vicariously liable for the subject incident which caused Ms. Webb’s injuries and also because there remain genuine disputes of material fact as to the identity of the individual who struck Ms. Webb with the pallet jack. (Emphasis added). The circuit court denied the motion without a hearing.

Motion in Limine On April 3, 2019, Giant filed an Omnibus Motion in Limine to preclude Ms. Webb from arguing that Giant had “breached a ‘safety’ duty as a property owner” under a “Reptile Theory”4 approach by “appeal[ing] to the jury’s own interests and/or passions 4 Giant argues that the “Reptile Theory” is a “recent phenomenon, which traces its origins to a monograph authored by Don C. Kennan and David Ball, Reptile: The 2009 Manual of the Plaintiff’s Revolution.” According to Giant: The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors’ brains, the part of the brain they share with reptiles. The Reptile strategy purports to provide a blueprint to succeeding at trial by applying advanced neuroscientific techniques to 5 and ask[ing] them to place themselves in the proverbial shoes of the plaintiff when deciding what the defendant should have done.” In addition, the motion in limine sought to preclude any evidence or testimony that Mr. Winzer “was an employee, agent, or servant of Giant,” because it was now undisputed “that the person pushing the cart was an employee of PepsiCo.” Ms. Webb responded that “[t]here is a genuine dispute of material fact as to the identity of the employee who caused [her] injuries,” and that “she does not know whether the man who struck her was employed by Defendant Giant.” In addition, she argued that “Giant, as the property owner of a business open to the public, owe[d] a duty to ‘use reasonable care to see that those portions of the property that the invitee may be expected to use are safe.’” Characterizing Giant’s duty as “non-delegable under Maryland law,” she argued that “the duty of care owned to Ms. Webb” was breached when it “permitted Mr. Winzer . . . to utilize a pallet jack it owned with its permission and consent, in its store aisles, at the same time they were to be open to customers (invitees), without proper oversight or supervision.” (…continued) pretrial discovery and trial. The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaintiffs’ counsel can reach the reptilian portion of the jurors' brains, they can influence their decisions; the jurors will instinctively choose to protect their families and community from danger through their verdict.

Appellant’s Brief at 2-3 (citing Plaintiff’s bar embraces Reptile strategy and defense bar responds, LEXOLOGY (Oct. 4, 2013), https://www.lexology.com/library/detail.aspx?g=ad754e6a-c50c-4570-8990- 71900cdf6795. 6 When the parties appeared for the first day of trial, the court, after argument, denied the motion: [W]ith regards to Mr. Win[ze]r as [to] whether he’s an employee, agent, servant of Giant, again, these are, I think, you are asking me again to kind of make a ruling without having the evidence. I think this is the facts that are going to be at issue, and I will address this at the conclusion of the case, so I decline to rule on a Motion in Limine at this point. – whether Giant breached a safety duty as the property owner, again, I’m going to instruct the jurors on the law. If they start to argue a higher duty and it’s not supported by my instructions, that’s going to be an area that they’re going to have a problem with in closing arguments. They’re going to get the instructions from me, you know.

That will be fair fodder for your closing, you know. So at this point I’m going to deny your motions with regards to that. (Emphasis added). Motion for Judgment At the close of Ms. Webb’s case-in-chief, Giant moved for judgment on two grounds: (1) that there was no evidence of an unreasonably dangerous condition on the premises to support a claim that Giant breached a non-delegable duty to keep its premises safe; and (2) that there was no evidence that Mr. Winzer was an agent, servant, or employee of Giant sufficient to support a claim for vicarious liability or negligent hiring, supervision, training, or retention.

Ms. Webb’s counsel responded: The property owner here, which is undisputed, Giant, has a non- delegable duty . . . which he is not free to delegate to the contractor. Such a non-delegable duty requires the person upon who it is imposed to answer for that care as exercised by anyone even though he be an independent contractor to whom the performance of the duty is entrusted. . . . 7 [E]mployers are liable under this exception5 irrespective of whether they themselves have been at fault. Whether vicarious liability should be imposed upon an employer by application of this exception is a matter of policy. * * * That’s exactly what we have here and with respect to these questions regarding notice, whether knows or should have known, there was testimony from both the Giant rep and from Mr. Winzer that they know – first of all, it’s a store owned by Giant and it’s a pallet jack owned by Giant with their permission and consent stocking shelves for their benefit. And the duty is to use reasonable care to see that those portions of the property that the invitee may be expected to use are safe.

The trial court granted judgment in favor of Giant on premises liability, but permitted the case to go forward based on vicarious liability: I evaluated the evidence of this case and . . . looked at the case law that was cited and what I believe we have before us is not a premise liability case. I do not believe that there is any allegation that what occurred is a result of a flaw or evidence in the record to say that there was something about those premises that created a danger that would have resulted in the injury. . . . So I do not believe that the – there is evidence to go forward on premise liability to the jury. However, what, I think this case is and what the evidence is, I mean, it’s a – is whether Mr. Winzer was – did something that was negligent that resulted in the injury that was caused to Ms. Webb.

So I think the issue becomes, is there evidence to keep this case alive against Giant with regards to Mr. Winzer’s actions that day. I think that there is arguments that could be made on what was offered, that there is some – enough involvement with Giant with regards to Mr. Winzer to warrant it turning into a fact question for the jury to decide. I think there was enough evidence for the jury to figure out a, you know, a – whether – you know, I’m going to leave it up to Counsel to make their arguments that there isn’t 5 Counsel referred to the exception to the general rule that an “employer of an independent contractor is not liable for the negligence of the contractor or his employees.” Appiah v. Hall, 416 Md. 533, 558 (2010) (quoting Rowley v. Balt., 305 Md. 456, 461 (1986)). 8 enough, but I think there was evidence to – that Giant controlled access to the store. (Emphasis added).

At the close of its case, Giant renewed the motion for judgment, which the trial court again denied. The jury awarded Ms. Webb $188,986 in past medical bills and $211,014 in non-economic damages. Other facts will be presented in our discussion of the questions. DISCUSSION I The Denial of Giant’s Motion for Summary Judgment and Motions for Judgment The motions for summary judgment and for judgment present similar questions at different stages of the proceedings.

We will first address the Motion for Summary Judgment. Summary Judgment Standard of Review A trial court has “discretionary authority to deny a motion for summary judgment in favor of a full hearing on the merits, even when the moving party ‘has met the technical requirements of summary judgment.’” Fischbach v. Fischbach, 187 Md. App. 61, 75 (2009) (quoting Dashiell v. Meeks, 396 Md. 149 , 164–65 (2006)). Accordingly, we review a denial of a motion for summary judgment for an abuse of discretion. Id. 9 Contentions Giant contends that Ms. Webb had “failed to offer any disputes of fact or evidence that Mr. Winzer was an agent, servant, or employee of Giant,” and to “present any evidence that an unreasonably dangerous condition existed on the premises to sustain a cause of action predicated on premises liability.”6 Ms. Webb contends that the denial of summary judgment was proper.

She argues there was a genuine dispute of material fact regarding Mr. Winzer’s relationship with Giant,7 and sufficient facts to demonstrate Giant’s control over Mr. Winzer when he was on the premises. Analysis A trial court can “enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law,” but it may also exercise its discretion not to do so. Fischbach, 187 Md. App. at 75 6 The trial court later granted Giant’s motion for judgment on the issue of premises liability. Giant argues that by the end of discovery, Ms. Webb lacked any evidence that the person pushing the pallet cart was an agent, servant, or employee of Giant or that Mr. Winzer’s use of Giant’s pallet cart “equated to an entrustment of a non-delegable duty or was itself “unreasonably dangerous.” We understand Giant’s argument to be that the evidence did not change between summary judgment and trial and that it was entitled to judgment prior to trial. 7 In her opposition to Giant’s motion for summary judgment, Ms. Webb also contended that there was a genuine dispute of material fact as to the identity of the employee who caused her injuries.

Mr. Winzer’s identity and his relationship with PepsiCo was not disputed at trial. As we noted above, Ms. Webb sought to join PepsiCo as a defendant on December 22, 2017. PepsiCo moved to dismiss based on limitations, and the trial court granted PepsiCo’s motion and struck the amended complaint. 10 (quoting Md. Rule 2-501(f)); see Dashiell v. Meeks, 396 Md. 149 (2006). The denial of a technically sufficient motion for summary judgment “in favor of a full hearing on the merits” does not necessarily constitute an abuse of discretion, and we are not persuaded that it did in this case.

See Fischbach, 187 Md. App. at 75 . Motion for Judgment. Standard of Review When we review a trial court’s ruling on a motion for judgment, we ask: whether on the evidence adduced, viewed in the light most favorable to the non-moving party, any reasonable trier of fact could find the elements of the tort by a preponderance of the evidence. . . . If there is even a slight amount of evidence that would support a finding by the trier of fact in favor of the plaintiff, the motion for judgment should be denied.

Washington Metro. Area Transit Auth. v. Djan, 187 Md. App. 487, 491-92 (2009). Contentions Giant contends that Ms. Webb’s “own admission and representations” indicate that “her sole theory of liability in this case was based on premises liability, i.e. that Giant breached a duty to one of its customers related to an unreasonably dangerous condition on its premises.” And, more particularly, that “[her] theory of liability was that the operation of a pallet cart by Mr. Winzer during store hours created an unreasonably dangerous condition” for which Giant was vicariously liable based on the breach of a non-delegable duty. According to Giant, Ms. Webb did not plead or advance a theory of negligence “based on vicarious liability, until the [c]ourt granted the motion for judgment on the premises liability claims.” But even assuming that vicarious liability “was one of [Ms. Webb’s] theories of negligence,” there was “insufficient evidence to support the 11 existence of an employment relationship between Giant and Mr. Winzer and therefore no grounds for Giant to be vicariously liable for Mr. Winzer’s actions.” Ms. Webb contends that by pleading negligence, she had “pursued a vicarious liability theory from the time of the filing of her Complaint,” and that Giant’s liability was always based “on the theory that [Giant was] vicariously liable for Mr. Winzer’s actions due to the control and authority exerted over Mr. Winzer while he was working on [Giant’s] premises.”8 Pointing to the testimony of Mr. Coradini, Giant’s corporate designee,9 she asserts that Giant “controlled not