Maans v. Giant of Maryland, L.L.C.

⁶²³ SALMON, J. Chandra Maans (“Maans”) sued Giant of Maryland, L.L.C. (“Giant”), in the Circuit Court for Harford County, claiming that Giant, by negligently allowing water to remain on the floor, had caused her to fall and injure herself. The case was bifurcated and tried before a jury on the issue of negligence only. At the conclusion of plaintiffs case, the trial judge granted a motion for judgment in favor of Giant because, in the trial judge’s view, Maans had failed to prove that Giant had either constructive or actual pre-injury notice of the wet floor.

Maans filed this timely appeal in which she asserts that the motion for judgment should not have been granted because (1) she produced sufficient evidence to raise a jury question as to whether Giant had either actual or constructive knowledge of the defective condition that caused her injury and (2) alternatively, there was no need to prove that Giant had either constructive or actual knowledge of the dangerous condition because her proof was sufficient to meet the requirements of the “mode-of-operation” rule under which proof that Giant had actual or constructive knowledge of the hazard, prior to injury, was unnecessary. I. On Sunday, May 23, 1999, at approximately 1 p.m., Maans and her fifteen-year-old niece, Amanda Randolph (“Randolph”), were shopping at a busy Giant store. After selecting several items for purchase, Maans and Randolph proceeded to one of the checkout lines to pay for the items. Randolph stayed in the checkout line, but Maans walked away from it in the hope of finding a shorter one.

Maans then turned around and began walking back toward her niece. When she was about “one cart length” away from the line in which her niece stood, Maans slipped and fell. She tried to avoid the fall by grabbing onto the cart of a woman in front of her but nevertheless landed on her back. ⁶²⁴ Maans, who was approximately six-and-one-half-months pregnant, felt immediate pain in her back and was unable to get up. She was transported by ambulance to a local hospital.

Maans did not see anything on the floor either before, or after her fall. And, while on the floor waiting for the ambulance, she never felt water, nor did she sense that her clothes were wet. Maans recalled that while she was on the floor she heard the assistant store manager, Roberta Braswell (“Braswell”), tell a man, who was standing nearby and holding a roll of paper towels in his hands, “to get up all the water off the floor.” Later, when the paramedics arrived, she heard Bras-well tell the paramedics “to be careful so they didn’t slip and fall in the water.” Maans did not know how the water got on the floor or how long it had been there prior to her fall. Randolph saw her aunt fall but did not see what caused it.

Afterward, because she was preoccupied with helping her aunt, she did not inspect the floor. She remembered, however, that as one of the female paramedics was picking her aunt up, “the manager said, ‘Watch out, there’s water.’ ” Randolph had no idea how the water, mentioned by the manager, got onto the floor. According to Randolph’s testimony, Maans was about ten feet away from her when she fell. She did not notice whether her aunt’s clothing was wet after the fall.

Braswell was the ranking store employee on duty at the time that Maans fell and was responsible for the investigation of the accident. Braswell testified that she did not see Maans fall, but when she arrived at the scene of the accident, she did find “[a] couple of drops of Citra soda on the floor.” She followed the drops back to a shopping cart pushed by a customer who stood in one of the checkout lines. The customer’s cart had a twelve-pack of Citra soda on the bottom rack. According to Braswell, the drops led directly from the customer’s shopping cart back to where Maans fell.

Braswell filled out an accident report on May 24, 1999, which was the day after the accident. In the report, Braswell quotes Maans as saying “that she fell on water on floor.” The ⁶²⁵ report also says that the floor was “last cleaned” on “5/24/99” by “Matt Pietrowski.” Braswell testified that it was not store policy to keep records of when mopping and cleaning of the floors occurred. Instead, Giant’s policy required that every employee look for spills and other hazards, and if the employee discovered any hazard, it was the employee’s responsibility to clean up the hazard immediately or call for a porter to do so and, when appropriate, “put a ‘wet floor’ sign” at the place of danger. There was, however, no one employee whose exclusive assignment was to patrol the store looking for spills or hazards.

At the time of the subject accident, Matt Pietrowski (“Piet-rowski”) was a courtesy clerk. A Giant courtesy clerk has numerous duties, including bagging and loading groceries and cleaning up around the front of the store. At trial, excerpts of Pietrowski’s deposition were read to the jury. Even though his name was on the accident report as the person who had last cleaned the floor prior to the accident, 1 Pietrowski had no recollection concerning the fall or any actions he took relevant thereto.

About four months after the accident, Pietrowski became a porter. The duties of a porter at Giant are to “sweep the floor, empty trash cans, mop if there was clean up, and any little odd jobs around the store that needed to be done.” His duties as a porter also included patrolling around the store “pretty much at all times except when ... on break.” If a porter saw a hazard on the floor, he or she was “supposed to take care of it right away.” David Miller (“Miller”), the store manager at the time of the accident, was not on duty when Maans fell, and as a consequence, he had no recollection of the incident. His testimony concerned Giant’s store policies. According to Miller, one responsibility of a store porter was to walk through the store ⁶²⁶ looking for spills.

The floors were “always cleaned in the morning prior to opening, and then cleaned throughout the day as needed.” Except for the morning cleaning, there were “no set times” for the floors to be recleaned. 2 Miller, like Braswell, testified that all Giant employees were responsible for maintaining the area of the store where he or she worked and, if hazards were spotted, to either clean up the hazard or call someone else to do so.

II

The Court of Appeals has adopted the formulation enunciated in the Restatement (Second) of Torts § 343 (1965), which sets forth the general duty a private landowner, such as Giant, owes to its invitees. Deering Woods Condo. Ass’n v. Spoon, 377 Md. 250, 263 , 833 A.2d 17 (2003). Section 343 reads: 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.

Restatement (Second) of Torts § 343 (1965). In Burkowske v. Church Hospital Corp., 50 Md.App. 515 , 439 A.2d 40 (1982), we applied the Section 343 standard in a ⁶²⁷ case in which an invitee sat on a bench in a hospital waiting room and was injured when the bench collapsed. Id. at 516, 522 , 439 A.2d 40 . Judge Alan Wilner, for this Court, said: “It was incumbent upon appellant to produce admissible evidence that (1) appellee failed in its duty to make reasonable periodic inspections of the bench, and (2) had it made such reasonable inspections, it would have discovered a dangerous condition.

See Smith v. Kelly, 246 Md. 640 , 229 A.2d 79 (1967); Bona, v. Graefe, 264 Md. 69 , 285 A.2d 607 (1972); Chesapeake and Potomac Telephone Co. v. Hicks, 25 Md.App. 503 , 337 A.2d 744 , cert den. 275 Md. 750 (1975). It simply does not suffice to claim the obvious — that if appellee had inspected the bench at the instant before its collapse, it would (or may) have noticed the condition.” Id. at 523, 439 A.2d 40 (emphasis added). At the time of the accident, Maans was Giant’s invitee. “It is the law in Maryland ... that the proprietor of a store owes a duty to ... [an invitee] to exercise ordinary care to keep the premises in a reasonably safe condition and will be liable for injuries sustained in consequence of a failure to do so.” Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 117 , 113 A.2d 405 (1955). The customer is entitled to assume that the proprietor will exercise reasonable care to ascertain the condition of the premises, and if he discovers any unsafe condition he will either take such action as will correct the condition and make it reasonably safe or give a warning of the unsafe condition.

Id. at 117-18 , 113 A.2d 405 (citations omitted). “The duties of a business invitor thus include the obligation to warn invitees of known hidden dangers, a duty to inspect, and a duty to take reasonable precautions against foreseeable dangers.” Ten-nant v. Shoppers Food Warehouse Md. Corp., 115 Md.App. 381, 388 , 693 A.2d 370 (1997). A store operator, such as Giant, is not the insurer of the invitee’s safety. Moulden v. Greenbelt Consumer Servs., Inc., 239 Md. 229, 232 , 210 A.2d 724 (1965). In addition, “the ⁶²⁸ burden is upon the customer to show that the proprietor created the dangerous condition or had actual or constructive knowledge of its existence” prior to the invitee’s injury.

Lexington Mkt. Auth. v. Zappala, 233 Md. 444, 446 , 197 A.2d 147 (1964) (citations omitted); see also Moulden, 239 Md. at 232 , 210 A.2d 724 , and Tennant, 115 Md.App. at 389 , 693 A.2d 370 . Approximately seventy years ago, the Court of Appeals, in Moore v. American Stores Co., 169 Md. 541, 550-51 , 182 A. 436 (1936), spelled out in detail the duty that the operator of a grocery store owes to its patron. The grocery store owner/operator has a duty to exercise reasonable and ordinary care to see that its premises were in such a condition that its customers might safely use them while visiting the store upon its invitation to buy its wares....

In the performance of that duty it [is] required to exercise reasonable care to discover conditions which, if known to it, it should have realized involved an unreasonable risk to such patrons.... Any • breach of that duty resulting in injury to one lawfully on its premises as an invitee would constitute negligence, if, but only if, it knew, or by the exercise of reasonable care could have discovered, the conditions which created the peni, and had no reason to believe that its invitees would realize the ■ risk involved therein. Id. (citations omitted) (emphasis added).

Recently, in Deering Woods, supra, 377 Md. at 264 , 833 A.2d 17 , the Court of Appeals quoted Moore, supra, with approval, as follows: .It is not necessary that there be proof that the invit[o]r had actual knowledge of the conditions creating the peril; it is . enough if it appear that it could have discovered them by the exercise of ordinary care, so that, if it is shown that the conditions have existed for a time sufficient to permit one, under a duty to know of them, to. discover them, had he exercised reasonable care, his failure to discover them may ⁶²⁹ in itself be evidence of negligence sufficient to charge him with knowledge of them. Id. (emphasis added). In Rehn v. Westfield Am., 153 Md.App. 586, 593 , 837 A.2d 981 (2003), Judge Adkins, for this Court, succinctly summarized the evidence that a customer must put forward in a slip- and-fall case against the invitor: The evidence must show not only that a dangerous condition existed, but also that the proprietor “had actual or constructive knowledge of it, and that that knowledge was gained in sufficient time to give the owner the opportunity to remove it or to warn the invitee.” Keene v. Arlan’s Dep’t Store of Baltimore, Inc., 35 Md.App. 250, 256 , 370 A.2d 124 (1977).

Whether there has been sufficient time for a business proprietor to discover, cure, or clean up a dangerous condition depends on the circumstances surrounding the fall. See Deering Woods Condo. Ass’n v. Spoon, 377 Md. 250 , 833 A.2d 17 (2003). “ ‘What will amount to sufficient time depends upon the circumstances of the particular case, and involves consideration of the nature of the danger, the number of persons likely to be affected by it, the diligence required to discover or prevent it, opportunities and means of knowledge, the foresight which a person of ordinary care and prudence would be expected to exercise under the circumstances, and the foreseeable consequences of the conditions.’ ” Id. (quoting Moore v. Am.

Stores Co., 169 Md. 541, 551 , 182 A. 436 (1936)). Maans argues that she presented sufficient evidence from which the jury could have found that she slipped on water rather than droplets of Citra soda, 3 as testified to by Braswell. We agree. Evidence that the assistant manager, immediately after Maans’s fall, directed a person with towels in his hand “to clean up all that water” was sufficient evidence, ⁶³⁰ standing alone, to allow a fact-finder to infer that Maans slipped on water, not on Citra soda. 4 Maans also contends that she presented sufficient evidence from which the jury could have found that Giant had, prior to the accident, constructive knowledge of the presence of water on the floor.

In support of that contention, appellant argues: First, there was no evidence as to when the area where Maans fell was last inspected or cleaned; [sjecond, Giant did not specifically assign an employee to look for spills and other hazards; [tjhird, Maans fell right near one of Giant’s employee’s work stations; and [f]ourth, this employee [the cashier] was never told to look for hazards near her check out line. These facts, when considered together, at least present a jury question as to whether Giant should have known about the water on the floor. In other words, Maans presented sufficient evidence to at least present a jury question as to whether Giant had constructive notice of the condition. (References to record extract omitted.) It is true that Giant produced no evidence during appellant’s case as to when the area where appellant fell was last inspected or cleaned, but appellant’s statement that “Giant did not specifically assign an employee to look for spills and other hazards” is potentially misleading.

The relevant testimony was as follows: Q [ATTORNEY FOR APPELLANT]: On May 23, 1999, Giant did not assign any employees to walk through the store and look for hazards; is that correct? A [BRASWELL]: That’s everyone’s job. Q: Was there a specific employee assigned to that job? ⁶³¹ A: Not specifically for that one duty, but we all do that as we go through the store. I guess I would be the one that would be most inclined to have that as one of my job descriptions touring the store.

It’s continual. (Emphasis added.) Later in Braswell’s testimony, she estimated that 98 percent of her time was spent walking the floors of the store looking for hazards. She also testified that any employee who sees a hazardous condition on the floor is responsible for either cleaning it up or getting someone else to do so. Braswell’s testimony was corroborated by Pietrowski, who testified: Q [ATTORNEY FOR APPELLANT]: Now, in terms of whether things were on the floor, were you required or were you supposed to patrol around the store and look for anything that could probably [sic] be on the floor?

A: Well, we were always walking around the store, pretty much at all times except when we were on break. So you don’t have an assigned route, but yes, we were always walking around the floor. Q: And then if you noticed something on the floor, you were supposed to take care of it right away? A: Yes.

Miller, the store manager, also corroborated Braswell’s testimony. He testified that throughout the day “employees are looking down at the floor going about their business, and if they see a spill it’s their job to either clean it up themselves or call for someone else to clean it up.” It may well be true, as appellant intimates, that the cash-register operators at Giant should have been, but were not, told to look out for spills near the checkout line. But that fact is here irrelevant because appellant produced not one scintilla of evidence to show that if any of the cash-register operators had looked they would have seen the water. No evidence was elicited as to how far any cash-register operator was from the spot where the fall occurred.

All that was shown was that Maans fell approximately one “cart length” away from the line in which her niece stood and that her niece was standing ⁶³² somewhere in a register line. There was no testimony as to how long the line was or how far away Maans’s niece was from the cash-register operator, nor was there evidence as to how far any cashier was from the water. Additionally, in regard to the issue of what the cash-register operator would have seen if she had looked, there was no evidence produced as to how much water was on the floor to be seen, nor was there evidence that a cashier, if he or she had looked, could have seen the transparent liquid. 5 Appellant contends that constructive notice may be proven by introduction of evidence that, prior to the accident, defendant failed to make reasonable inspection of the premises. We shall assume, purely for purposes of argument, that Giant breached its duty to make reasonable inspections.

The adoption of this assumption, however, does not aid appellant. Appellant failed to produce any evidence that had Giant made reasonable inspections prior to the accident it would have discovered the water on the floor in time to prevent the accident. For all that was shown by appellant, the water could have been spilled by a customer seconds before her fall. This is fatal to her argument that Giant is liable because it breached its duty to make reasonable inspections.

See Burkowske, 50 Md.App. at 523 , 439 A.2d 40 (To prove liability, an invitee must show that if the owner/occupier had made reasonable inspections, the defect would have been discovered in ⁶³³ time to prevent the invitee’s injury.). See also Deering Woods, 377 Md. at 267-68 , 833 A.2d