Imbraguglio v. Great Atlantic & Pacific Tea Co.

RODOWSKY, Judge. In this wrongful death and survival action the decedent was killed when he fell from a forklift-elevated pallet. The Circuit Court for Baltimore City entered summary judgment in favor of the defendants on the ground that the decedent had assumed the risk of the injury as a matter of law, and, in an unreported opinion, the Court of Special Appeals affirmed on that ground. We issued the writ of certiorari, Imbraguglio v. Great Atl. & Pac.

Tea Co., 356 Md. 16 , 736 A.2d 1064 (1999), primarily to address some fundamental misconceptions in the arguments of the parties concerning the summary judgment process. As to the merits, we shall reverse. The decedent, Salvatore Imbraguglio (Imbraguglio), was employed by Supermarket Distribution Services, Inc. (SDS) as a supervisor and forklift operator in a grocery warehouse and distribution center where he had worked for thirty-five years. SDS is a wholly owned subsidiary of the Great Atlantic & Pacific Tea Company, Inc. (A & P), one of the Respondents.

Imbraguglio’s fatal fall occurred in a warehouse which was owned by A & P but managed by the other respondent, Super Fresh Food Markets of Maryland, Inc. (Super Fresh), also a wholly owned subsidiary of A & P. The petitioner and plaintiff is Ethel Imbraguglio, individually and as personal representative of the Estate of Imbraguglio (Petitioner). This case is a third-party action to the workers’ compensation claim which has been resolved. In Great Atlantic & Pacific Tea Co. v. Imbraguglio, 346 Md. 573 , 697 A.2d 885 (1997), we held that A & P, which is the workers’ ¹⁹⁹ compensation self-insurer for its subsidiaries, did not enjoy a defense on that basis to this third-party action and that the record did not establish as a matter of law that Super Fresh was the statutory employer of Imbraguglio under Maryland Code (1991), § 9-508 of the Labor and Employment Article. A summary judgment which had been entered in favor of A & P and Super Fresh (Respondents) was reversed in that earlier appeal, and the action was remanded.

Respondents again moved for summary judgment, contending that Imbraguglio had assumed the risk of injury. The circuit court granted that motion for the reasons advanced by Respondents. As we shall see, infra, the memoranda submitted to the circuit court in support of, and in opposition to, summary judgment did not present the evidence most favorable to the party opposing summary judgment as that evidence appeared in Respondents’ supporting materials. The facts that are undisputed are that the warehouse where Imbraguglio worked was very large, containing as many as sixty aisles.

Supermarket grocery-department products were moved and stored in the warehouse in their transportation cartons on forklift pallets. Loaded pallets were stored in or on racks that formed the aisles in which forklifts operated. Those racks were vertically and horizontally divided into sections, each of which was the storage receptacle or bin for one loaded pallet. These bins were tiered to a height of at least three bins and were largely open.

In addition to the aisle side or face of a bin being open, it appears that there were no solid barriers and no closely spaced, intermittent barriers between bins that adjoined vertically or horizontally, at least in the section of the warehouse with which we are concerned. Thus, it was possible and, one may infer, not an infrequent occurrence, for one or more cartons of product to become “mispositioned,” either by having fallen off of a pallet into a bin on one or another side of the intended storage bin, or by having fallen to a level below that of the intended storage bin. Cartons could fall from a pallet when, for example, loaded ²⁰⁰ pallets were being inserted into or withdrawn from a particular bin. Although the allegations of primary negligence in Petitioner’s amended complaint are vague, at least one theory of liability suggested by Petitioner’s argument is that the Respondents, as owner and manager of the warehouse, failed to furnish a safe place to work by, inter alia, failing to supply bins with barriers that would prevent cartons from becoming mispositioned.

Part of the duties of a warehouse worker such as Imbraguglio was to place in the proper position a product that had become mispositioned. When the mispositioned product was in a bin other than at ground level a worker would reach the higher elevation by a procedure that required two workers. A forklift with an empty pallet placed upon the forks was positioned in front of the column of bins where the task was to be performed. One worker would stand on the pallet while a second worker operated the controls of the stationary forklift in order to raise the pallet to the desired elevation.

It was also necessary for the warehouse workers to be raised in this fashion when taking inventory. Respondents 1 had caused some number of the ordinary pallets to be modified by erecting a post at each corner and by affixing a railing between the posts. Respondents call these modified pallets “cages.” The evidence on behalf of Respondents is that warehouse workers who were repositioning stock or taking inventory were required by management to, and so far as management knew, universally did, use cages when the workers were elevated by forklift. 2 ²⁰¹ On the other hand, evidence on behalf of Petitioner, derived from the report of the Maryland Occupational Safety and Health Act (MOSHA) inspectors, is that the warehouse workers did not regularly use cages and that the storage area for the cages was “at the far end of the warehouse which was not an area” where they could be “easily retrieved by the employees for use.” Instead, the warehouse workers used pallets that had not been modified into cages. Imbraguglio fell to his death after he had been elevated on an unmodified pallet. 3 We also learn from the MOSHA inspectors’ report that Imbraguglio’s fall was caused by his having lost his balance due to a shift of position by at least one of the cartons in the bin where he was working.

The inference most favorable to Petitioner is that the shift took place among the product that remained in the bin and that it was not a shift in weight of a carton that Imbraguglio was then handling. Respondents’ position on summary judgment is that Imbraguglio voluntarily chose to use an unguarded pallet when the alternative of using a cage was available to him and that, by this voluntary choice, Imbraguglio assumed the risk of falling. The director of warehousing for SDS acknowledged on deposition that the cages did not comply with the Federal Occupational Safety and Health Act requirements, but the particulars of that noncompliance are not developed in the record. From this unspecific noncompliance Petitioner argues that use of a cage was not a safe alternative.

I Initially, we need to determine the record that may properly be considered on this summary judgment motion. In support of their motion Respondents submitted four items of evidence. ²⁰² The first is a typewritten and signed, but unsworn, statement by David Alonzo Williams (Williams) that was given to a representative of Respondents. Williams was the co-worker who was operating the forklift controls when Imbraguglio was elevated on the pallet. The second item is the transcript of the testimony given before the Maryland Workers’ Compensation Commission (the Commission) by Jeffrey Kidd (Kidd), a witness called by SDS in defense of the Petitioner’s workers’ compensation claim.

Kidd was employed by Super Fresh as the grocery warehouse manager. Excerpts from the deposition of Walter L. Swift (Swift), who was described in Respondents’ motion papers as the maintenance supervisor at SDS, form the third item of evidence. The fourth consists of excerpts from the deposition of Gary Farmer (Farmer), the director of warehousing for SDS. Petitioner’s principal evidence is the report of the MOSHA inspectors.

The first issues before us are raised by Petitioner’s contentions that Kidd’s testimony and Williams’s statement should not be considered. Petitioner makes no objection to the deposition testimony of Swift or Farmer, or to any part thereof. A Petitioner argues that the circuit court ought not to have considered the statement of Williams because, on summary judgment, the court could only consider evidence that would be admissible at trial and the statement, sworn or unsworn, could not be admissible at trial. Respondents advance four reasons, none of them availing, why the statement was properly considered.

First, Respondents say that the matters of fact contained in the statement would be admissible in evidence at trial and, thus, may be considered on summary judgment. But the facts contained in the statement would not be admissible at trial if presented in the form of the statement; ordinarily Williams would have to testify in person or, under certain circumstances, by deposition, for his evidence to be admitted at trial. At the summary judgment stage the court, under the circumstances here, could not consider the statement absent an affidavit from Williams in which he ²⁰³ asserted, inter alia, his personal knowledge of the facts contained in the statement or in which he otherwise demonstrated the admissibility through him at trial of testimony as to those facts. Use on summary judgment of an unsworn statement of a party opponent was attempted in Diffendal v. Kash & Karry Service Corp., 74 Md.App. 170 , 536 A.2d 1175 (1988).

In that case the court rejected an unsworn statement of the plaintiff who, while looking at items displayed in a supermarket, had fallen over an “L-bed” cart that had been left in the aisle. Asserting that the plaintiff had been contributorily negligent, the defendant moved for summary judgment and supported the motion with a paper, purporting to be a verbatim transcript of a recorded conversation between the plaintiff and, apparently, an adjuster for the defendant’s insurer. In that “transcript” the plaintiff admitted that, before she fell, she had seen the L-bed cart near her in the supermarket aisle. The store argued that this statement constituted an admission that the trial court properly had considered in granting the store’s motion.

Rejecting this argument, the Court of Special Appeals concluded: “Mrs. Diffendal’s comment that she had seen the L-cart prior to her fall was not in response to a formal admission of fact under Rule 2-424.... The transcript does not represent on its face that the conversation was under oath, and appellee has not made that claim. Additionally, no affidavit has been made ... part of the record, claiming, under oath, that [she] engaged in a conversation ... or that the recorded statement is an accurate transcription of such a conversation.” Id. at 181 , 536 A.2d at 1181 . The court then quoted P.V. Niemeyer & L.M. Richards, Maryland Rules Commentary 252 (1984).

In the more recent edition of that work the authors continue to make plain that “[a] document can be made part of the motion [for summary judgment] only through affidavit, deposition, or an ²⁰⁴ swers to interrogatories that adequately lay the proper foundation for the document’s admission into evidence. Authenticity and relevancy of the document must be shown. Attaching documents to a motion for summary judgment without the necessary affidavit is no more acceptable than standing up in open court and attempting to offer the same documents into evidence without a witness or a stipulation.” P.V. Niemeyer & L.M. Schuett, Maryland Rules Commentary 332 (2d ed.1992) (citation omitted). See also Vanhook v. Merchants Mut.

Ins. Co., 22 Md.App. 22, 26-27 , 321 A.2d 540, 542-43 (1974) (listing “[s]ome of the ways” to place facts before the court on summary judgment to be affidavits, depositions, answers to interrogatories, admissions of fact, stipulations or concessions and, under some circumstances, pleadings). The unsworn statement of a witness is not, as Respondents contend, an unlisted, but appropriate, form of placing evidence before the court over objection. Respondents also argue that no affidavit from Williams is required because the summary judgment rule states that “[t]he motion shall be supported by affidavit if filed before the day on which the adverse party’s initial pleading or motion is filed.” Md. Rule 2-501(a).

Respondents conclude that, inasmuch as this action was at issue when their summary judgment motion was filed, no affidavit from Williams was required. The purpose of the “affidavit” requirement at that early stage is to place facts before the court where, otherwise, there would be no record. It does not follow, however, from the affirmative statement of the requirement in Rule 24501(a) that an affidavit is never required, under general summary judgment practice, in stages of the action that fall outside of the period described in the sentence quoted from Rule 2-501(a). The next reason assigned by Respondents for considering Williams’s unsworn statement is that it was attached to Respondents’ answers to interrogatories.

From a procedural standpoint, Respondents’ answers to interrogatories were not part of the record in the circuit court. See Rule 2- ²⁰⁵ 401(d)(2) (discovery material ordinarily is not to be filed with the court). The fact that Respondents have included the answers to interrogatories as an appendix to their brief in this Court does not render the answers part of the official record. From a substantive standpoint Respondents’ argument also fails because a party cannot convert hearsay material into evidence admissible at trial by the simple expedient of furnishing the hearsay material to the adversary in discovery.

Finally, Respondents say that the Petitioner waived objection to considering Williams’s statement on summary judgment because the document’s “essential contents were made part of the record in the depositions of’ Swift and Farmer without objection at those depositions. The defect in Williams’s statement, for use on summary judgment, is the lack of an affidavit. This defect is unrelated to use of the statement to examine other potential witnesses on deposition. Further, Petitioner was relieved of any requirement to object at deposition by Rule 2-415(g) (“An objection to the competency of a witness or to the competency, relevancy, or materiality of testimony is not waived by failure to make it before or during a deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time.”).

At the Swift and Farmer discovery depositions, Respondents could not cure the hearsay character of the factual material in Williams’s statement, in that form, by examining the deponents who had no personal knowledge of that factual matter. We hold that the Williams statement was not part of the record properly considered on summary judgment. B Petitioner also maintains that the testimony of Kidd, given under oath before the Commission, ought not to have been considered in granting summary judgment. In this Court, Petitioner argues that the testimony was inadmissible because it failed to comply with Maryland Rule 2-311 (“Motions”), § (d) which reads: “A motion or a response to a motion that is based on facts not contained in the record or papers on file in ²⁰⁶ the proceeding shall be supported by affidavit and accompanied by any papers on which it is based.” The argument seems to be that Respondents were required to present an affidavit of Kidd containing the substance of this testimony because an asserted difference in the issues before the Commission and those before the circuit court precluded the introduction of the earlier testimony. 4 Petitioner does not contend that Kidd’s testimony is irrelevant, and, as we shall demonstrate, infra, we find it to be highly relevant.

At trial, a transcript of Kidd’s former testimony, if offered by Respondents, would be inadmissible over objection unless Respondents could show that Kidd was unavailable within the meaning of Rule 5-804(a), and that the Petitioner had “an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination” in the workers’ compensation proceeding. See Rule 5—804(b)(1). 5 The argument, however, confuses the requirements for admitting evidence at trial with the requirement, in the summary judgment context, that the movant “plac[e] before the court facts which would be admissible in evidence.” Vanhook, 22 Md.App. at 26 , 821 A.2d at 542. 6 "Testimony given as a witness in any action or proceeding or in a deposition taken in compliance with law in the course of any action or proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” ²⁰⁷ The distinction between summary judgment and trial becomes apparent by considering the different functions of an affidavit in each context. An affidavit suffices in the summary judgment context to place before the court a fact that, if testified to by the affiant at trial, would be admissible, even though the affidavit itself generally is not admissible at trial. The court can reasonably assume that, if called as a witness at trial, the affiant would testify to the same facts as those set forth in the affidavit.

Thus, the trial judge may consider the affidavit in the summary judgment context even though, at trial, the affidavit itself generally would be inadmissible and the affiant would have to testify. A transcript of former testimony possesses the same indicia of reliability as an affidavit in the summary judgment context. The transcript indicates the matters to which the witness, if called in the present case, would testify, because, like an affiant, the witness gave the former testimony under oath. By a parity of reasoning, the court on summary judgment may consider the transcript of the former testimony even though, at trial, the transcript itself might not be admissible under Rule 5-804(b)(l).

Although it appears that no Maryland court has addressed specifically this issue in the summary judgment context, the Court of Special Appeals has held that testimony from a previous trial may be attached as an exhibit to a response to a motion for summary judgment filed in the same case upon remand. See Casey v. Grossman, 123 Md.App. 751, 758 , 720 A.2d 959, 962 (1998), cert. denied, 353 Md. 269 , 725 A.2d 1068 (1999). 7 Other courts addressing this issue also have decided ²⁰⁸ that a trial judge, when ruling on a motion for summary-judgment, properly may consider a transcript of former testimony because the transcript has the sort of reliability just noted. 8 Although some courts have decided otherwise, those ²⁰⁹ cases appear to involve the use of trial or deposition testimony from a previous case to which the plaintiff or defendant against whom the evidence presently is offered was not a party. 9 The latter holdings do not apply here, where Petitioner was a party to the workers’ compensation proceeding at which Kidd testified. Consequently, we indicate no opinion on whether the latter holdings have any vitality in Maryland. The transcript of Kidd’s testimony before the Commission reliably indicated the matters to which he would testify at trial, and the trial court properly considered this transcript when ruling on Respondents’ motion for summary judgment.

II From the record, properly constituted, we must now determine the facts most favorable to Petitioner, as the party opposing summary judgment. Further, inasmuch as the only issue is whether Imbraguglio assumed the risk of injury as a ²¹⁰ matter of law, our concern is only with the facts most favorable to the Petitioner on that issue. The parties have consistently argued the summary judgment motion, and the courts below have treated the record, as if the evidence most favorable to the Petitioner was that Imbraguglio fell from a height of fourteen feet. That is not what the record reflects.

In his deposition Farmer said, “I can tell you exactly what happened.” Farmer’s version of the accident seems to be part personal observation of the scene, part opinion based on experience, and part hearsay based on what Williams told Farmer. Nevertheless, Respondents offered Farmer’s evidence without objection. Farmer said: “[Imbraguglio] was running a let-down fork. He was going to retrieve a pallet of tissue.

And, when he did, he dropped probably three or four cases off that pallet of 15. And, so, he brought down the rest of them [which] had stayed on the pallet. Then he went up to get his other three or four cases.” When asked about his report that Imbraguglio had fallen approximately fourteen feet to the floor, Farmer said, “Oh, that was a guesstimate.” The “guesstimate” was calculated as follows, according to Farmer: “[T]he pallet [ie., bin] heights that [Imbraguglio] was at ... were six foot heights, to the level that the bar that he was at would have been about a 12 and a half foot high, lifted up area, would have been lifted, probably waist high. So, his head from the floor was probably about 14 feet.” The record does not reflect how tall Imbraguglio was.

Nevertheless, it is clear that the fourteen foot measurement is not the elevation of the pallet platform above the floor, but an estimate of the distance from the floor to the top of Imbraguglio’s head. Furthermore, a trier of fact could interpret this testimony to mean that Imbraguglio was attempting to retrieve the dropped cartons from the second tier of bins, but we do not know how high within a six foot tall bin the product was mispositioned. If we assume, as did Farmer, that Imbragug ²¹¹ lio was attempting to position the pallet on the forklift so that his waist would be approximately parallel to the top of the mispositioned cartons in the second tier, which resulted in the top of Imbraguglio’s head being fourteen feet above the floor, the pallet on which Imbraguglio was standing would have been less than ten feet above the floor, unless Imbraguglio was less than four feet tall. The evidence bearing on the elevation of the unprotected pallet that is most favorable to Petitioner is found in Kidd’s testimony.

Kidd testified as follows: “[Williams] was stopped by [Imbraguglio] and asked to raise [Imbraguglio] up to the second level to fix some cases that had become ‘mis-positioned’ in the rack. [Imbraguglio] had already gotten an empty pallet and positioned the forklift. He stood on the [pallet placed upon the] forklift and [Williams] raised him up to approximately six to seven feet. The pallet itself was between six and seven feet off the floor. The pallet was still in the same position when I got over there after the accident had happened.

I asked [Williams]—I said, Ts that where the pallet was when [Imbraguglio] fell?’ He said, ‘Yeah. I haven’t touched anything.’ ” (Emphasis added). 10 The circuit court properly could have considered the above-quoted evidence. The Kidd testimony was presented by Respondents, and Petitioner’s reasons for objecting thereto were not well taken. Further, even if Williams’s statement to Kidd, as presented by Kidd in his testimony, should be excluded from consideration, it is nevertheless clear that Kidd arrived on the scene promptly after the accident and personally observed the height to which the forks were then elevated. ²¹² From this a trier of fact properly could infer that the platform was less than seven feet above the floor when Imbraguglio fell.

Common human experience indicates that Williams’s first concern would have been to get help for Imbraguglio and not to play with the elevation controls on the forklift. The height to which the platform was elevated is a material factor under the law of assumption of risk and by reference to OSHA safety regulations, as we explain below. Ill “Assumption of the risk is a defense applicable to negligence claims.” JBG/Twinbrook Metro Ltd. Partnership v. Wheeler, 346 Md. 601, 619 , 697 A.2d 898, 907 (1997). The defendant must specially plead assumption of risk under Maryland Rule 2-323(g)(3), and the defendant bears the burden of proof.

See ADM Partnership v. Martin, 348 Md. 84, 90-91 , 702 A.2d 730, 734 (1997). Specifically, “the defendant must show that the plaintiff: (1) had knowledge of the risk of the danger; (2) appreciated that risk; and (3) voluntarily confronted the risk of danger.” Id. (citing Liscombe v. Potomac Edison Co., 303 Md. 619, 630 , 495 A.2d 838, 843 (1985)). As the reasoned justification for this defense, this Court has stated that “[t]he doctrine of assumption of risk 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 toward him and to take his chances from harm from a particular risk.” Rogers v. Frush, 257 Md. 233, 243 , 262 A.2d 549, 554 (1970).

W.P. Keeton et al., Prosser and Keeton on the Law of Torts § 68, at 489 (Lawyer’s 5th ed.1984), state that “[i]n the usual case, [the plaintiffs] knowledge and appreciation of the danger will be a question for the jury; but where it is clear that any person in his position must have understood the danger, the issue may be decided by the court.” (Footnote omitted). According to Respondents, Imbraguglio is deemed to have known and appreciated the risk under Martin . Citing Schroyer v. McNeal, 323 Md. 275 , 592 A.2d 1119 (1991), ²¹³ Gibson v. Beaver, 245 Md. 418 , 226 A.2d 273 (1967), and Evans v. Johns Hopkins University, 224 Md. 234 , 167 A.2d 591 (1961), this Court stated in Martin : “ ‘In determining whether a plaintiff had knowledge and appreciation of the risk, an objective standard must be applied and a plaintiff will not be heard to say that he did not comprehend a risk which must have been obvious to him.’ Gibson, 245 Md. at 421 , 226 A.2d at 275 . Thus, ‘when it is clear that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.’ Schroyer, 323 Md. at 283-84 , 592 A.2d at 1123 ; see also Gibson, 245 Md. at 421 , 226 A.2d at 275 (quoting W. Prosser, Handbook of the Law of Torts, § 55, at 310 (2d