Houston v. Safeway Stores, Inc.

CATHELL, Judge. In resolving the instant appeal, we shall address an issue of first impression—the immunity from civil liability of retail establishments under Maryland Code (1973, 1995 Repl.Vol.), ¹⁸⁰ § 5-378 of the Courts and Judicial Proceedings Article (CJ). In toto, that section, as codified, now reads: [Immunity]—Customer use of employee toilet facility in retail establishment. 1 ^ (a) Definition.—In this section “customer” means an individual who is lawfully on the premises of a retail establishment. (b) In general.—A retail establishment and any employee of a retail establishment are not civilly liable for any act or omission in allowing a customer, including a customer as defined in § 24-209 of the Health-General Article, to use a toilet facility that is not a public toilet facility, if the act or omission: (1) Is not willful or grossly negligent; (2) Occurs in an area of the retail establishment that is not accessible to the public; and (3) Results in an injury to or death of the customer or any individual other than an employee accompanying the customer.

(c) Employee toilet not public restroom.—Notwithstanding any provision of this section, an employee toilet facility is not to be considered a public restroom. Appellant, Carrie Houston, challenges the interpretation and application of CJ § 5-378 by the Circuit Court for Prince George’s County (Melbourne, J., presiding) in its rendering of a judgment notwithstanding the verdict in favor of appellee, Safeway Stores, Inc. (Safeway). She presents two issues for our review: 1. Whether the trial court erred in granting the defendant judgment notwithstanding the verdict in light of substantial evidence supporting the jury’s finding that the restroom at issue was a public toilet facility rather than an employee toilet facility. ¹⁸¹ 2.

Whether the trial court erred in its construction and application of the statute entitled “Immunity—Customer Use of Employee Toilet Facility in Retail Establishment,” Md.Code Ann., Cts. & Jud.Proc. § 5-378 (1995 RepLVol.). For reasons to be discussed, we shall affirm the trial court’s entry of judgment non obstante veredicto, addressing both issues simultaneously. FACTS AND PROCEEDINGS On September 16, 1992, appellant, while shopping at appellee’s Lanham location, “inquired of a[n] ... employee whether there was a restroom available for her use.” She was directed by Safeway personnel to go to the back of the store and to proceed through a set of double doors, each bearing a “No Admittance” sign. Beyond the double doors is a storage area or stockroom, described by one witness as the store’s back room.

Whatever its characterization, it is clearly a nonretail area designed to support the public, retail areas of the store. In that nonpublic area, beyond the doors bearing the “No Admittance” signs, is a nine-foot wide, ninety-foot long passageway. Appellant was directed to walk down that passageway to reach the rest room. Notably, the store is equipped with two other rest room facilities, adjacent to an employee lounge area on an upper floor, which are accessible by a stairway located just beyond the rest room at issue.

Appellant indicated at trial that she went up and down the path three times in search of the facility; it was on her third pass that she slipped and fell on what she described as a piece of twine or rope, sustaining severe injuries, resulting in the amputation of a toe. Appellant brought suit against appellee on negligence grounds, claiming, inter alia, that appellee had breached its “duty to reasonably maintain and inspect the premises in issue.” The issues of liability and damages were bifurcated, and the four-day trial commenced on February 27, 1995. At the close of appellant’s case-in-chief, appellee moved for judg ¹⁸² ment, relying largely on CJ § 5-378 and the immunity granted thereby. The trial court reserved ruling on the motion, and appellee presented its case.

At the close of all the evidence, appellee renewed its Motion for Judgment, relying on the same grounds as previously iterated. The trial court again reserved ruling thereon, and the case was submitted to the jury, which returned a verdict in favor of appellant. By special verdict, the jury found as fact the following: that the rest room at issue was not an employee facility; that the facility was a public rest room; that Safeway was negligent; and that appellant was not contributorily negligent. Appellee then filed a Motion for Judgment Notwithstanding the Verdict, Motion for a New Trial, Motion to Alter or Amend the Judgment, and Motion to Vacate Judgment.

Safeway argued that CJ § 5-378 was designed to shield retailers from liability in precisely the situation presented by the case at bar. It also claimed that appellant had failed to present sufficient proof that the rest room at issue was a public, rather than an employee, facility. 2 A hearing on the Motion was held May 10, 1995, after which the trial court, stating that the statute “was designed exactly for this situation,” ruled in favor of appellee on the Motions for Judgment upon which it had earlier reserved ruling. Judgment was entered accordingly, notwithstanding the jury’s verdict. Appellant filed the instant appeal therefrom.

APPELLATE STANDARD OF REVIEW We note at the outset that Maryland Rule 2—532(b) provides that a motion for judgment, made at the close of all the evidence and upon which the trial court reserves ruling, “becomes a motion for judgment notwithstanding the verdict if ¹⁸³ the verdict is against the moving party.” See also McSlarrow v. Walker, 56 Md.App. 151 , 154 n. 1, 467 A.2d 196 (1983), cert. denied, 299 Md. 137 , 472 A.2d 1000 (1984). “[A] motion ... n.o.v. tests the legal sufficiency of the evidence,” Impala Platinum Ltd. v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 326 , 389 A.2d 887 (1978), and “is reviewed under the same standard as a judgment granted on motion during trial,” Huppman v. Tighe, 100 Md.App. 655, 663 , 642 A.2d 309 (1994). To this end, we “assume[ ] the truth of all credible evidence and all inferences of fact reasonably deducible from the evidence supporting the party opposing the motion. If there exists any legally competent evidence, however slight, from which the jury could have found as they did, a j.n.o.v. would be improper.” Huppman, 100 Md.App. at 663 , 642 A.2d 309 ; see also Dennard v. Green, 335 Md. 305, 322-23 , 643 A.2d 422 (1994) (quoting Impala Platinum, 283 Md. at 328 , 389 A.2d 887 ); Levine v. Rendler, 272 Md. 1, 12 , 320 A.2d 258 (1974); McSlarrow, 56 Md.App. at 158 , 467 A.2d 196 and cases cited therein. STATUTORY CONSTRUCTION Paramount in undertaking the construction of any statute is the intent of the Legislature.

See Mauzy v. Hornbeck, 285 Md. 84, 92 , 400 A.2d 1091 (1979); Mazor v. Department of Correction, 279 Md. 355, 360 , 369 A.2d 82 (1977); Board of Supervisors of Elections v. Weiss, 217 Md. 133, 136 , 141 A.2d 734 (1958). “The language of the statute itself is the primary source of this intent....” Privette v. State, 320 Md. 738, 744 , 580 A.2d 188 (1990); see also Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 73 , 517 A.2d 730 (1986). Where the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts do not normally look beyond the words of the statute itself. Giant of Maryland, Inc. v. State’s Attorney, 267 Md. 501, 512 , 298 A.2d 427 , appeal dismissed, 412 U.S. 915 , 93 S.Ct. 2733 , 37 L.Ed.2d 141 (1973); Hunt v. Montgomery County, 248 Md. 403, 414 , 237 A.2d 35 (1968).

But see Tracey v. Tracey, 328 Md. 380, 387-88 , 614 A.2d 590 (1992); Kaczorowski v. Mayor of Balti ¹⁸⁴ more, 309 Md. 505, 514-15 , 525 A.2d 628 (1987). To this end, the words are to be accorded their ordinary and generally understood signification, absent evidence to the contrary. Brodsky v. Brodsky, 319 Md. 92, 98 , 570 A.2d 1235 (1990); Privette, 320 Md. at 744-45 , 580 A.2d 188 ; Mazor, 279 Md. at 360 , 369 A.2d 82 . Care must be given to avoid construing a statute by forced or subtle interpretations.

Comptroller of the Treasury v. Fairchild Indus., Inc., 303 Md. 280, 284 , 493 A.2d 341 (1985). We are quick to note, however, [t]hat a term may be free from ambiguity when used in one context but of doubtful application in another context. ... ... [W]here a statute is plainly susceptible of more than one meaning and thus contains an ambiguity, courts consider not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment.... [T]he court ... may consider the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense. Tucker, 308 Md. at 74-75 , 517 A.2d 730 (citations omitted); see also Tracey, 328 Md. at 387 , 614 A.2d 590 (“[T]he statute must be construed reasonably with reference to the purpose, aim, or policy of the enacting body.”). Moreover, “[i]f reasonably possible, a statute is to be read so that no word, phrase, clause or sentence is rendered surplusage or meaningless.” Mazor, 279 Md. at 360 , 369 A.2d 82 . “Statutes are enacted to further an underlying goal, aim, or purpose, and must be interpreted in accordance with their general purposes and policies.” Toft v. State of Nevada ex rel.

Ali Pimentel, 108 Md.App. 206 , 671 A.2d 99 (1996). THE LEGISLATIVE HISTORY In tracing the legislative history of the relevant statute, CJ § 5-378, since its inception and the inception of its predeces ¹⁸⁵ sors, we note that, prior to 1987, retail establishments in Maryland were not required to allow customers or patrons access to their nonpublic rest rooms. Generally, prior to 1987, a merchant could protect himself from liability toward invitees in respect to rest room facilities by denying customers access to those private rest rooms. See Restatement (Second) of Torts § 332 cmt. 1 (1965); 62 Am.Jur.2d Premises Liability § 102 (1990) (“If a person ... goes to a place not covered by the invitation, the ... duty of care owed to such person as an invitee ceases forthwith.... [Tjhere can be no recovery for resulting injury, even though he is an invitee to other parts of the premises.” (footnotes omitted)).

In 1986, in an attempt to capitalize upon a statute that required businesses to maintain one bathroom for every fifteen employees, proponents of a measure to require businesses to allow patrons to utilize those rest rooms prompted introduction of a bill in the Maryland Senate that read, in part: At the request of a customer, each retail business establishment that has a toilet facility for its employees shall allow the customer to use the facility. S.B. 516 (1986). Notably, as written, Senate Bill 516 provided customers unlimited access to private rest room facilities without regard to the retailers’ potential liability for injuries sustained by patrons concurrent with their use of the facilities. As initially written, therefore, it would have required retailers to expose themselves to substantial liability.

The bill met with strong opposition in both the Legislature and the retail community. Proposed amendments limiting the scope of the statute to businesses with twenty or more employees were not able to assuage its opponents’ security and liability concerns. The bill did not pass. The bill was rewritten and reintroduced in 1987, with significantly more limitations, “[i]n an attempt to exempt the ‘Mom and Pop’ operations, and to limit the extent of the bill to those who were truly in need of immediate access to toilet facilities because of a medical problem.” Retail Establishments—Toi ¹⁸⁶ let Facilities: Hearings on S.B. 413 Before the Environmental Matters Committee (1987) (Testimony of Senator Barbara Hoffman).

Specifically, under Senate Bill 413, only certain retail businesses with employee rest room facilities were required, under certain limited circumstances, to permit customers to use those rest rooms. The intent of th[e] bill [was] to require a retail establishment with 20 or more employees to allow a customer access to the establishment’s toilet facility if the customer has a medical condition that requires immediate access to a toilet facility ... [and] to provide access to toilet facilities for a small part of the population whose medical conditions require such access. Senate Economic and Environmental Affairs Committee, Summary of Committee Report, S.B. 413 (1987). Enacted as Maryland Code (1982, 1987 Repl.Vol.), § 24-209 of the Health-General Article (HG), 3 Chapter 351 of the 1987 Laws required an “establishment with 20 or more employees that ha[d] a toilet facility for its employees ... [to] allow the customer to use the facility,” when a public rest room was not available.

At the same time, the statute responded to other concerns earlier expressed by the statute’s opponents. First, the statute narrowly defined a “customer” as an individual who (1) Suffers from Crohn’s Disease, ulcerative colitis or any other inflammatory bowel disease, or any other medical condition that requires immediate access to a toilet facility; or (2) Utilizes an ostomy device. HG § 24-209(a). Then, for the first time, this bill incorporated the provisions with which we are primarily concerned in the instant case in then subsection (d) of HG § 24-209.

That ¹⁸⁷ prior section shielded the business as well as its employees from civil liability for any act or omission in allowing a customer to use a toilet facility that is not a public toilet facility[ 4 ] if: (1) The act or omission is not willful or one of gross negligence; (2) The act or omission occurs in an area of the retail establishment that is not accessible to the public; and (3) The act or omission results in an injury to or death of the customer or anyone other than an employee accompanying the customer. While the bill mandated that a business owner allow access to special-need customers under certain circumstances, thus exposing those businesses to significant liability, it further granted them immunity, in the absence of willful or gross negligence. In 1989, the immunity of HG § 24-209 was “expanded] ... to retail establishments of any size which voluntarily allow[ed] any customer to use an employee toilet facility.” Senate Judicial Proceedings Committee, Floor Report, H.B. 162 (1989). House Bill 162 5 fashioned two separate and independent sections, HG § 24-209 and HG § 24-210, out of what had theretofore been one section, namely HG § 24-209.

In moving subsection (d) of HG § 24-209, House Bill 162 created the new HG § 24-210, providing that it applied not only to employee facilities but also to all nonpublic facilities and separated the provisions conferring immunity from those requiring a retailer to provide certain special-need customers access to rest rooms maintained primarily for employee use. This separation was largely in response to the Legislature’s pur ¹⁸⁸ pose and intent to “expand[ ] the circumstances under which retail establishments are immune from civil liability ... and generally relating to the use of nonpublic restrooms in retail establishments.” 1989 Md.Laws, Chap. 387. The remaining sections of HG § 24-209, i.e., subsections (a), (b), and (c), remained substantively unchanged in the separation. On the other hand, the scope of those customers to which the provisions of HG § 24-209 had applied was significantly altered to include any person “lawfully on the premises of a retail establishment.” HG § 24-210(a).

We note' that House Bill 162 was captioned: Retail Establishments—Toilet Facilities—Immunity from Civil Liability. When HG § 24-210 was first codified, however, the codifiers entitled it, “Same—Civil Liability of Retail Establishment or Employee.” By inserting “Same,” the codifiers were saying that HG § 24-210 related to, and incorporated, the provisions of the next preceding section—HG § 24-209. This use of “Same,” as relating back to HG § 24-209, appeared to limit the applicability of both sections to employee facilities. In using that titling, the codifiers erred.

While House Bill 162 reenacted HG § 24-209 in respect to employee rest rooms and the special class of customers it had previously affected, it also added a completely separate, new section, HG § 24-210, that did not limit its provisions solely to “employee” rest rooms. It created immunity in respect to the use of any nonpublie facility. Both sections shared the same legislative history until House Bill 162 was enacted; that bill created wholly separate statutory sections. To simplify the difference, HG § 24-209 only applies when employee facilities are used by those suffering from certain disorders.

HG § 24-210 applies in all other instances. There is no evidence that appellant qualifies under HG § 24-209, as she does not suffer from the maladies therein described; her suit, of necessity, was based on her use pursuant to HG § 24-210, as later restated in CJ § 5-378. In 1990, the Legislature, consolidating related immunity statutes in House Bill 206, repealed and reenacted the sub ¹⁸⁹ stance of HG § 24-210 as CJ § 5-378. 6 1990 Md.Laws, Chap. 546. The consolidation parroted the language of HG § 24-210, but included no title.

Because, however, the codifiers had improperly titled HG § 24-210, as we have previously indicated, they similarly improperly titled CJ § 5-378 to indicate that the section applied to a customer’s use of employee facilities. HG § 24-210 had never been so limited and neither is C J § 5-378. Thus, our primary concern, as we indicate elsewhere, is the public or private nature of a facility. Prior to the consolidation, HG § 24-210, with the titling error omitted, provided: Civil liability of retail establishment or employee.

(a) “Customer” defined.—In this section, “customer” means an individual who is lawfully on the premises of a retail establishment. (b) In general.—A retail establishment and any employee of a retail establishment are not civilly liable for any act or omission in allowing a customer, including a customer as defined in § 24-209 of this subtitle, to use a toilet facility that is not a public toilet facility, if: (1) The act or omission is not willful or one of gross negligence; (2) The act or omission occurs in an area of the retail establishment that is not accessible to the public; and (3) The act or omission results in an injury to or death of the customer or anyone other than an employee accompanying the customer. (c) Employee toilet not public restroom.—Notwithstanding any provision of this section, an employee toilet facility is not to be considered a public restroom. That same language is now found in CJ § 5-378.

It is that statute and that language that we apply in resolving the instant case. ¹⁹⁰ DISCUSSION THE STATUTE It is clear that the original statute’s passage would not have been possible had it not been modified to afford retail businesses partial immunity from liability for injuries sustained by patrons utilizing their rest room facilities. Our review of the legislative history has provided us with important insights, which illustrate an increase in the scope of the current statutes from the original statute. 7 Not only have the statutes been amended to apply to all retail establishments, but the kind of customers to whom the statutes apply has also been expanded. Originally applying solely to those suffering from various medical disorders, the statute currently encompasses any person “lawfully on the premises of a retail establishment.” CJ § 5-378(a). More important, however, is the evolution of the statutory language, particularly that which specifically sets forth the requirement of accessibility.

It demonstrates a move away from requiring access for a limited class of persons solely to rest rooms maintained for employees, HG § 24-209, to include any permissive use of facilities that are not available for general, unrestricted use by the general public. As it stands, CJ § 5-378(b) requires compliance in respect to facilities that are “not ... public toilet facilities].” In so doing, the current formulation clearly contemplates that not every nonpublie facility to which a customer will be directed will be an employee facility. Thus, what had begun in 1986 (in Senate Bill 516) as an attempt to mandate that all retail businesses allow all customers unlimited access to their rest rooms, without regard to their liability therefor, evolved into two statutes that currently provide that certain customers with specified physical disorders must be allowed access to employee rest rooms, HG § 24-209, and that all others may be allowed access to any nonpublic facility. HG § 24-210 and now CJ § 5-378.

In either event, the retail establishment will be immune from suit ¹⁹¹ in respect to such use of its private and/or employee rest rooms so long as its actions are not willful or grossly negligent, CJ § 5—878(b)(1). It is appellant’s position that the rest room is, in fact, one available for use by the general public, thus stripping appellee of any immunity. Appellee approaches the issue from a different angle, claiming that appellant failed to introduce sufficient evidence to establish that the rest room was not an employee facility. The appropriate distinction under the statute that applies in the instant matter, CJ § 5-378, is between public and