Richardson v. Nwadiuko

WRIGHT, Judge. This case involves an alleged slip and fall accident that occurred on June 7, 2003, at the medical office of Raymond O. Nwadiuko, M.D., appellee. On April 26, 2006, Twanda Richardson and her husband, Larry Richardson, appellants, filed a two-count complaint in the Circuit Court for Prince George’s County, alleging that appellee was negligent. On October 22, 2007, appellee filed a motion for summary judgment, contending that Mrs. Richardson was a “bare licensee” and not an “invitee” when the incident occurred, and that there is no evidence that appellee had notice and/or knowledge of a dangerous and/or defective condition at the premises.

On December 3, 2007, appellants filed a motion in limine, requesting that certain evidence be excluded at trial. A hearing was held on January 18, 2008, at which time the circuit court granted appellee’s motion for summary judgment, then proceeded to deny appellants’ motion in limine. Both orders were filed on January 29, 2008. Appellants noted this timely appeal. ⁴⁸⁴ QUESTIONS PRESENTED 1 1) Did the trial court err in finding that Mrs. Richardson was a bare licensee, and not an invitee, on appellee’s property? 2) Did the trial court err in finding that appellants failed to make a prima facie showing of negligence? 3) After granting appellee’s motion for summary judgment, did the trial court err in ruling upon and denying appellants’ then-moot motion in limine? .

Although we hold that Mrs. Richardson was an invitee, not a bare licensee, at the time of the incident, we affirm the circuit court’s judgment because, even with Mrs. Richardson’s having invitee status, appellants failed to make a prima facie showing of negligence. As a result, we need not address the third question. 2 FACTS Appellee is the owner of real property located at 9831 Greenbelt Road, Suite 101, in Prince George’s County (“property”). He has held sole title to the property since he acquired it in December 1998. Appellee leases the property to the Maryland Allergy & Asthma Center, and also uses the property as an office, where he practices medicine as an allergist.

At the time of the alleged slip and fall, entry into the property was obtained through a door that opened directly into the patients’ waiting room. Once inside, one would find a rectangular area of smooth tile 3 that measures approximately ⁴⁸⁵ 32 x 40 inches, immediately adjacent to the doorway. The entire waiting room, with the exception of the tiled area at the entrance, was carpeted. Because the width of the tiled area was the same width as the doorway, however, it was impossible for anyone to avoid stepping on the tiled area when entering the property.

Mrs. Richardson had been appellee’s patient since April 2000. On her suggestion, Mr. Richardson also became a patient in April 2003. On the morning of June 7, 2003, Mr. Richardson had a scheduled appointment with appellee at the property. Prior to this date, appellants had frequently gone to appellee’s office together when one of them had an appointment.

On those occasions, upon entering the property, they would go to the receptionist’s desk together and, after the spouse with an appointment signed in, the receptionist would invite them both to have a seat in the waiting room. The appellants had never been told by appellee or any member of appellee’s staff that the waiting room was not available for use by persons who did not have an appointment, nor were there signs containing such a prohibition posted anywhere on the premises. When Mrs. Richardson had her initial allergy testing in 2000, Mr. Richardson accompanied her to the testing area and stayed with her while the tests were being performed. Appellee did not object to Mr. Richardson’s presence.

Appellee admitted that he never forbade a patient from bringing his or her spouse along for an appointment, but stated that he also did not encourage it. On June 7, 2003, at approximately 11 a.m., appellants arrived at the property. According to appellants, it was raining heavily and had been raining steadily since the night before. Appellee admitted that it was raining when he arrived at the property earlier that morning.

Appellee began seeing patients at approximately 9 a.m. and saw patients continuously until appellants arrived. ⁴⁸⁶ After Mr. Richardson parked, appellants exited the vehicle and walked to the entrance to the property. According to appellee, there was a mat located just outside the entrance, beneath an overhang. Appellee added that when it rained, the mat became wet and, on those occasions, persons entering the property had no means of drying their shoes before entering. Mrs. Richardson could not recall whether there was a mat present, but stated that if a mat had been there, it could not have been dry at the time they entered.

Mr. Richardson opened the door to the property, at which time Mrs. Richardson closed the umbrella she had been using, and stepped through the doorway. There was no mat inside the entrance and, because Mrs. Richardson was wearing slip-on shoes with rubber soles, she infers that the bottoms of her shoes were still wet when she entered the property. Mrs. Richardson’s first and only step into the property was with her left foot. As soon as she took that step, she claims that her left foot slid out from under her and she fell to the floor.

After she fell Mrs. Richardson felt water on her pants and hands. There is no evidence as to whether this water came from her shoes, her clothing, or the tiled floor. As a result of her fall, Mrs. Richardson sustained severe and permanent injuries to her right knee, lower back, and tailbone area. Her orthopedic surgeon has opined that she is presently permanently and totally disabled as a result of these injuries.

On July 23, 2007, Mrs. Richardson was deposed. She stated that she had no personal knowledge that anyone ever tripped and fell, or slipped and fell, at the property before June 7, 2003. Mrs. Richardson thought that she slipped and fell because the floor was wet, but she had no personal knowledge as to how long that area had been wet. She also had no idea how much water was in the area when she slipped, but said it was enough to wet the back of her trousers and her hands.

Mrs. Richardson stated that her husband did not slip and fall on June 7, 2003, nor did anyone else slip and fall trying to assist her. She believed that vinyl, by itself, is not dangerous, and when she entered the property on June 7, 2003, she saw nothing to indicate that there was a dangerous situation or ⁴⁸⁷ defective condition at the property. According to Mrs. Richardson, the fact that it had been raining and the fact that there was vinyl on the floor did not lead her to the conclusion that there was a dangerous or defective condition. Mr. Richardson was also deposed on July 23, 2007.

He stated that he had never slipped and fallen anywhere in the property. He also stated that he could not quantify the amount of water that was in the area where Mrs. Richardson claims to have slipped and fell on June 7, 2003. Appellee was deposed on August 29, 2007. From personal knowledge, he stated that no one else had ever slipped and fallen at the property from the time he acquired it in 1998 until June 7, 2003.

Appellee also stated that he knew, before Mrs. Richardson fell, that people can slip on wet vinyl or can slip on vinyl if their shoes are wet. He believed, however, that just because vinyl is wet does not mean that a person would slip and fall on it. Because there was no perception of any danger, and no one had ever fallen there before, appellee thought that placing a rubber mat on the vinyl tiles was unnecessary. Prior to the hearing, appellee also served answers to interrogatories that were propounded upon him by appellants.

In those answers, appellee stated he had no knowledge that anyone specifically inspected the area where the alleged incident occurred, but added that neither he nor his employees would allow a dangerous condition to exist if they had notice or knowledge of it. During his deposition, appellee admitted that, prior to the incident, he had been in stores with signs saying “Caution-Wet Floor.” He understood that those signs were posted to urge people to be careful because a wet floor could be slippery and cause people to slip and fall. Appellee added that, when he saw those signs, he would be cautious so as to avoid falling on a wet floor. In his answers to interrogatories, however, appellee maintained that, on June 7, 2003, neither he nor his employees “had any notice or knowledge that there was any potential hazard since no one had ever ⁴⁸⁸ slipped and fallen at the medical office before the alleged incident.” STANDARD OF REVIEW “In reviewing the grant of a motion for summary judgment, appellate courts focus on whether the trial court’s grant of the motion was legally correct.” Laing v. Volkswagen of Am., Inc., 180 Md.App. 136, 152-53 , 949 A.2d 26 (2008) (citations omitted).

In so doing, “ ‘this Court reviews the record in the light most favorable to the non-moving party.’ ” Chesek v. Jones, 406 Md. 446, 458 , 959 A.2d 795 (2008) (quoting Anderson v. Council of Unit Owners of the Gables on Tuckerman Condo., 404 Md. 560, 570 , 948 A.2d 11 (2008)) (additional citation omitted). “Summary judgment is appropriate if ‘there is no genuine dispute as to any material fact and ... the party in whose favor judgment is entered is entitled to judgment as a matter of law.’” Rivers v. Hagner Mgmt. Corp., 182 Md.App. 632, 646 , 959 A.2d 110 (2008) (quoting Md. Rule 2-501(f) (2008)). “Thus, the first task for the reviewing court is to determine whether a dispute of material fact exists; ‘where such dispute is absent ... we proceed to determine whether the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Hill v. Knapp, 396 Md. 700, 711 , 914 A.2d 1193 (2007)). DISCUSSION Appellants assert that the circuit court erred in granting summary judgment because Mrs. Richardson was an implied invitee, not a bare licensee, at the time of the incident and, therefore, appellee owed her a higher duty of care.

Although we agree with appellants’ assertion that Mrs. Richardson was an invitee, we nonetheless hold that the circuit court did not err in granting summary judgment because appellants failed to make a prima facie showing of negligence. Specifically, the circuit court correctly concluded that appellants “failed to establish the existence of a dangerous or defective condition, ⁴⁸⁹ let alone any knowledge on the part of [appellee] of such a condition.” The duty owed by a property owner to someone on the property varies, depending upon the latter’s legal status on the property at the time of the incident. See Deboy v. City of Crisfield, 167 Md.App. 548, 555 , 893 A.2d 1189 (2006) (citing Rowley v. Mayor, 305 Md. 456, 464 , 505 A.2d 494 (1986); Rehn v. Westfield Am., 153 Md.App. 586, 592 , 837 A.2d 981 (2003); Wells v. Polland, 120 Md.App. 699, 709 , 708 A.2d 34 (1998); and Doehring v. Wagner, 80 Md.App. 237, 243 , 562 A.2d 762 (1989)). In Deboy v. City of Crisfield, this Court explained: The highest duty is that owed to an invitee; it is the duty to “use reasonable and ordinary care to keep [the] premises safe for the invitee and to protect [the invitee] from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for [the invitee’s] own safety will not discover.” Rowley, 305 Md. at 465 , 505 A.2d 494 (citations omitted).

By contrast, the landowner or occupier owes no duty to licensees or trespassers, except to abstain from willful or wanton misconduct or entrapment. Wells, 120 Md.App. at 710 , 708 A.2d 34 (citing Mech v. Hearst Corp., 64 Md.App. 422, 426 , 496 A.2d 1099 (1985)). Invitee status can be established under one of two doctrines: (1) mutual benefit or (2) implied invitation. Wells, 120 Md.App. at 710 , 708 A.2d 34 ; Howard County Bd. of Educ. v. Cheyne, 99 Md.App. 150, 155 , 636 A.2d 22 (1994).

Under the mutual benefit theory, the invitee generally enters a business establishment for the purpose of purchasing goods or services. 120 Md.App. at 710 , 708 A.2d 34 . This theory places great weight upon the entrant’s subjective intent, and inquires into whether the entrant intended to benefit the landowner in some manner. Id. By contrast, the implied invitation theory is objective and does not rely on any mutual benefit.

Id. Rather, the circumstances control, such as custom, habitual acquiescence of the owner, the apparent holding out of the premises for a particular use by the public, or the general arrange ⁴⁹⁰ ment or design of the premises. Id. at 710-11 , 708 A.2d 34 . The gist of the implied invitation theory is the distinction between mere passive acquiescence by an owner or occupier in certain use of his land by others and direct or implied inducement.

Crown Cork & Seal Co. v. Kane, 213 Md. 152, 160 , 131 A.2d 470 (1957); Cheyne, 99 Md.App. at 156 , 636 A.2d 22 . Deboy, 167 Md.App. at 555-56 , 893 A.2d 1189 . The Deboy Court also held that, in order to be considered an invitee under the implied invitation theory, it is necessary that: “the person injured did not act merely on motives of his own ... but that he entered the premises because he was led by the acts or conduct of the owner or occupier to believe that the premises were intended to be used in the manner in which he used them, and that such use was not only acquiesced in, but was in accordance with the intention or design for which the way or place was adapted and prepared or allowed to be used.” Id. at 556 , 893 A.2d 1189 (quoting Kane, 213 Md. at 160 , 131 A.2d 470 ). “Thus the fact that a building is used as a shop gives the public reason to believe that the shopkeeper desires them to enter or is willing to permit their entrance, not only for the purpose of buying, but also for the purpose of looking at the goods displayed therein or even for the purpose of passing through the shop.” Restatement (Second) of Torts § 332 cmt. c (1965). A licensee, on the other hand, “is one who enters upon property, not as a social guest, but for his or her own convenience or purpose and with the landowner’s consent.” Wagner v. Doehring, 315 Md. 97, 102 , 553 A.2d 684 (1989) (citing Mech, supra, 64 Md.App. at 426 , 496 A.2d 1099 ).

As we previously stated, “[n]o duty is owed to a bare licensee except that he or she may not be wantonly or willfully injured or entrapped, nor may the occupier of land ‘create new and undisclosed sources of danger without warning the licensee.’ ” ⁴⁹¹ Wagner, 315 Md. at 102 , 553 A.2d 684 (quoting Sherman v. Suburban Trust Co., 282 Md. 238, 242 , 384 A.2d 76 (1978)). In this case, Mrs. Richardson entered the property on June 7, 2003, to accompany her husband during his medical appointment with appellee. Because Mrs. Richardson herself did not have a medical appointment on that day, she did not enter the property with the intent of benefitting appellee in some manner and, therefore, she was not an invitee under the mutual benefit theory. A review of relevant Maryland cases leads us to conclude that Mrs. Richardson was an invitee under the implied invitation theory.

The Court of Appeals discussed the application of the implied invitation theory in Kalus v. Bass, 122 Md. 467 , 89 A. 731 (1914). In that case, the defendant posted a sign offering “Rooms for Rent.” Mr. Kalus, after making an inquiry, was told by defendant to look at the rooms first and if the rooms suited him, they would discuss the amount of the rent. Mr. Kalus went to the property and took the plaintiff, his 12-year-old son, with him. While on the premises, a stairway gave way and both Mr. Kalus and his son fell, sustaining injuries.

The issue before the appellate court was whether the defendant owed a duty to the son. In holding that the defendant extended an implied invitation, the Court of Appeals reasoned, id. at 473 , 89 A. 731 : It is a familiar principle that the natural and probable