Sutton-Witherspoon v. S.A.F.E. Mgmt., Inc.

Panel: Wright, Berger, Leahy, JJ. * Leahy, J. ²¹⁷ To celebrate their Super Bowl victory in 2013, the Baltimore Ravens and the City of Baltimore held a victory parade on Tuesday, February 5, 2013. The parade route ran from Baltimore City Hall to M & T Bank Stadium, where fans were invited to a free, unticketed event immediately following the parade (the "Celebration"). The Celebration featured Ravens team members, live entertainment, and concessions and merchandise for sale. The gates to the stadium opened at 10:00 a.m., and the stadium reached capacity before the parade even began.

By 12:30 p.m., the parade was still making its way to the stadium with an "unprecedented public crowd" following behind. The fire marshal ordered the gates to the stadium closed, and the Baltimore City Police Department responded by re-assigning officers from the parade route to the stadium. ³ The gates remained unlocked in case of emergency. Among the fans who arrived at the stadium following the parade were Ms. Lakisha Sutton-Witherspoon and her eight-year-old son, Nicholas Witherspoon (collectively, "Appellants"). While getting autographs from Ravens players and taking pictures outside of the stadium, Ms. Sutton-Witherspoon heard someone announce that the gate near her was open, even though she had heard an announcement earlier from a helicopter that the stadium was full.

She took her son's hand and walked toward the gate. As they walked, a crowd surged toward the gate, knocking over and trampling Ms. Sutton-Witherspoon and her son, injuring them both. Appellants filed a negligence action in the Circuit Court for Baltimore City against the Baltimore Ravens LP ("Ravens LP"); Maryland Stadium Authority ("MSA"), which owned the stadium; and S.A.F.E. Management, Inc. ("SAFE"), the Ravens crowd-control and guest-services contractor (collectively, "Appellees"). The circuit court granted summary judgment in favor of each of the Appellees, finding that the facts did not give rise to an inference that they had constructive notice of any dangerous conditions at the stadium.

Appellants noted a ²¹⁸ timely appeal, and present the following questions for our review: 1. "Did the trial court improperly grant summary judgment without consideration of Appellants' contention that the Appellees' negligent security efforts allowed the crowd surge to occur?" 2. "Did the trial court err in finding that appellants failed to make a prima facie showing of negligence?" We conclude that the circuit court, in granting the summary judgments in the underlying case, failed to address Appellants' alternative theory of negligence set out in the complaint. The court did not resolve the allegation that a crowd of the size that attended the stadium event was reasonably foreseeable and could create a risk of the type of harm suffered by Appellants, and that the Appellees failed to undertake reasonable safety precautions to control the crowd they invited to the stadium.

Accordingly, we must reverse the court's grants of summary judgment and remand the case. BACKGROUND 1 Ms. Sutton-Witherspoon, her husband, and their three children arrived in Baltimore City sometime between 10:00 and 10:30 a.m. on the day of the parade. After parking their car, they proceeded to the corner of Light and Pratt Streets to await the parade. Once the parade passed, they headed toward the stadium and the parade convoy, walking west on Conway Street, past Oriole Park at Camden Yards.

Around the time they walked past the warehouse at Camden Yards, Ms. Sutton-Witherspoon heard a police helicopter overhead announce that the stadium was full. This was the only time she heard an announcement that the stadium was full. When Ms. Sutton-Witherspoon and her family arrived at the stadium, the floats had stopped and the players were taking ²¹⁹ pictures and signing autographs. The family got players' autographs and took pictures of Ray Lewis for "more than five minutes." As they did, the crowd grew "[a] little bit" but "[n]ot tremendously." At some point, Ms. Sutton-Witherspoon heard ⁴ someone say "[t]his gate is open," 2 referring to the gate near the floats where she and her family stood.

Nicholas testified that he could see that the gate was open from where he stood. Ms. Sutton-Witherspoon and her family began walking toward the gate-which she remembered was either Gate C or D. She recalled that other people were heading toward the gate as well, but it "wasn't a tremendous amount of people." She held Nicholas' hand as they walked at a "very leisurely" pace. The gate they planned to enter was open and there were "no turnstiles" or anything, "[i]t was just an opening." Then, when they got under the awning in front of the gate, she "felt Nicholas get snatched out of [her] hand." She "turned around to look, to see where he went," scanning the crowd, observing that there "was a lot of people ... all of a sudden." "[A] herd of people [ ] came out of nowhere," she said. When she looked down, she saw Nicholas on the ground with "people walking over top of him." Nicholas said that he was "pushed forward and knocked down" by the crowd around him as people in the crowd began to run.

He explained that, after getting knocked down, "everything went black. Everything was black, and it was a very small space. And the very ²²⁰ second after that, I started yelling for my mom. I was very scared." The crowd knocked down Ms. Sutton-Witherspoon as well.

She described what happened next: I tried to get up and it was just - people were just walking on top of me. It was just a lot of people. And I just - I couldn't get up. And then people started falling on top of me.

And then people were walking on top of the people that were on top of me. I just felt feet and I was screaming and I could just hear Nicholas screaming and it was just a lot of people. She related that she "was grabbing at people's ankles, hoping someone would look down[,]" but she "eventually ran out of air and couldn't breathe." "I think I passed out[,]" she said, "I just don't remember." The police dispersed the crowd with pepper spray. Ms. Sutton-Witherspoon's husband found her and helped her up.

When she got to her feet she could not put weight on her ankle; her pants, shoes, and socks had been torn off. Her face burned from the pepper spray but she did not see any police officers in the area. She looked back for Nicholas and saw a stranger helping him to his feet. Ms. Sutton-Witherspoon was given a wheelchair.

Nicholas sat on her lap, and the two were wheeled through the still-open gates into the stadium, where they received treatment until an ambulance came and took them to the hospital. ⁵ The Stadium MSA owns the stadium and, by a 30-year lease dated August 15, 1997, grants Ravens LP the exclusive right to use the stadium for NFL games and related events. The lease grants Ravens LP control and authority over decisions about "ticketing, admissions, and gate operation," as well as "the process for admitting attendees" to events at the stadium. Despite earlier discussions with Baltimore City officials, who preferred that the Ravens hold the event between City Hall and the War Memorial Plaza as they did after their Super ²²¹ Bowl win in 2001, Ravens LP decided to host the Celebration at the stadium. Mr. Roy Sommerhof, Ravens LP's Senior Vice President of Stadium Operations, testified that he expressed his agreement with the Baltimore City officials to senior officials within the Ravens organization, but they decided to host the Celebration in the stadium contrary to his advice.

The dispute, it seems, hinged at least in part on disparate predictions of crowd size. According to Mr. Sommerhof, Ravens LP had "some real deep discussion[s]" about not having the Celebration at the stadium because there might only be 30,000 attendees and "there wouldn't be enough people to fill" the 70,000-capacity stadium: "there was a real concern among some leadership at the Ravens organization that we would [not] have more than 30 or 35,000 people, given that it was a Tuesday in February - and you never know what the weather is going to be - in the middle of a workday." Personally, Mr. Sommerhof believed the 30,000-35,000 estimates were off and he expected there to be around 70,000 guests. And although a few other members of the organization shared his belief, he "was in the minority." Ravens LP decided to make the Celebration free of charge and unticketed, but offered concessions and merchandise for sale and made the restrooms available to guests. It issued a press release announcing the Celebration, which would begin at approximately 12:30 p.m. at the stadium.

The press release further stated that "fans [we]re encouraged to attend a celebration featuring the team and live entertainment." Fans were permitted entrance to the stadium beginning at 10:00 a.m. Crowd Management Preparations In his deposition, Mr. Sommerhof testified that his crowd management responsibilities were to "work with Maryland Stadium Authority, [SAFE], and others, including the Baltimore City Police Department, to develop plans for crowd management and the safe operation of M & T Stadium for events and M & T Stadium." He testified that he would develop these plans "[u]sually for just about every event" that Ravens LP has. On the day of a normal event, Ravens LP ²²² holds a pregame meeting with all its partners (SAFE, the housekeeping and concessions contractors, MSA, the Baltimore Police Department, and the Baltimore City Fire Department) at the stadium, at which point Ravens LP informs SAFE of the posts of police officers during the event. 3 There was no meeting in advance of the parade and Celebration, however. And, of relevance to this appeal, Mr. Sommerhof testified that Ravens LP had no plan in place for what would happen if the stadium reached maximum capacity on the day of the Celebration.

Although there was no meeting, there was a call between SAFE and Ravens LP, during which time the two entities agreed ⁶ that there would be no need for ticket scanners or bag checks. SAFE, Ravens LP's "crowd control and guest services contractor," provides "event management functions and security functions" for M & T Bank Stadium and the Baltimore Ravens on game days. SAFE's tasks, under the general umbrella of "event management," include "usher[ing], ticket taking and scanning, and security at certain locations throughout the building." Because SAFE would not need the employees who scan tickets and check bags for the Celebration, it reduced its staffing, including supervisors, below the normal game-day level. On a normal game day, for instance, SAFE would have five supervisors at Gate A, but on the day of the Celebration those five supervisors were not scheduled to work.

The supervisors for Gates B, C, and D were not present either and, according to SAFE's Director of Operations, Mr. Joe Parr, any employees who would have been assigned to scan tickets were also absent. Additionally, on normal game days, SAFE erects "bike rack-type installations" at each gate prior to the games to help people form a line while they are entering the stadium. Mr. Sommerhof said it does this "in order to try to keep people in some semblance of order when they're getting to the gate ²²³ area, so that we can scan their tickets, provide entry to them, we put them in kind of queue lines." The use of the installations, he explained, is derived from "the requirements through best Practices for Stadium Security." But because there were no tickets to scan, "there was no need for [the installations]." Mr. Parr testified that SAFE and Ravens LP shared the responsibility for establishing the number of SAFE employees who would work at the various events at the stadium. But, according to Mr. Parr, the responsibility for posting police officers as additional personnel during events rests solely with Ravens LP-not with SAFE.

Command Center The Command Center is a room inside the stadium in which about 20-30 people monitor several TVs showing a closed-circuit feed from the security cameras within and outside of the stadium. Each Appellee had at least one agent in the room, in addition to personnel from the police department and the fire marshal's office. 4 Mr. Sommerhof explained that "representatives from just about each one of those entities [were] in that room, and they [we]re monitoring activity in and around the stadium[,]" looking for various issues including "crowd management and safety concerns." The TVs also displayed streaming footage from cameras on helicopters flown by the police department and a local news affiliate, WBAL. Observers in the Command Center could see from the video feeds "that an unprecedented public crowd had breached the parade route and was headed to the stadium, which was nearing maximum capacity[.]" At some point after witnessing the video feed of the crowd approaching the stadium, the fire marshal informed Ravens LP that the stadium was already at capacity and that it ²²⁴ needed to close the gates. Ravens LP responded "immediately" by "set[ting] about with [SAFE]'s help to comply with the request." SAFE closed the gates within five minutes.

The gates needed to remain unlocked, however, for the safety of the crowd inside the stadium. Mr. Greg Cook, MSA's security manager ⁷ for the stadium, testified that, other than the Ravens LP's order to close the gates, the only efforts undertaken by any entity in response to the crowd moving toward the stadium were made by the police, who called for more police assets "anticipating the need for some additional staffing." Around 20 to 30 minutes after the fire marshal ordered the gates closed, the police helicopter above Oriole Park announced that the stadium gates were closed. After Ravens LP instructed SAFE to close the gates, Mr. Parr went to the concourse to assist his staff, beginning at Gate A. By the time he reached Gate C, it was already closed. Mr. Sommerhof testified that SAFE is responsible for closing the gates, and for crowd management at the gate with the assistance of the Baltimore City Health Department. 5 The ²²⁵ areas outside of Gates A and C as well as the sidewalk surrounding the stadium were visible on the video surveillance feeds in the Command Center.

The Parade Reaches the Stadium According to Mr. Cook, at about 12:30 p.m., those present in the Command Center watched video feeds of the crowd approaching the stadium. The police commander in the Command Center reacted to the "unprecedented public crowd" by re-directing police officers who were escorting the parade to come to the stadium. The parade began to arrive at the stadium, one parade vehicle at a time. The Ravens players dismounted the parade vehicles outside the stadium.

Ray Lewis was the last player to arrive, riding in a Humvee. Mr. Cook recalled that it took 90 minutes for the players and their families to disembark from the parade vehicles and to enter the stadium. And once the players were off the floats and other vehicles, they remained outside the stadium to take photos and to sign autographs for the fans congregating outside. The Crowd Surges Eventually, the crowd that followed the parade to the stadium tried to make its way inside-some people climbed the gates and others went through the unlocked gates.

People outside the gates reached in and lifed the latches to open the gates. Initially, SAFE had no personnel assigned ⁸ to make sure the gates' latches remained in place, but it "did put people there to monitor the latches once [it] discovered people were pulling the latches because it was happening all over the stadium." After a gate would reopen, a crowd would surge toward it as people outside attempted to gain entry to the stadium. Mr. Parr witnessed the first surge, which occurred at Gate A1. He responded by reporting the surge to the Command Center and ²²⁶ directing his staff to "watch the handles" on the other gates.

He instructed his staff to let him know if any gates were open "so that we can respond." He explained that SAFE has a "hands-off" policy under which it will not physically grab any guests; instead it will simply attempt to verbally diffuse any incidents. Mr. Parr admitted that he did not direct his staff to communicate to people outside the stadium that the gates were closed, but added that he also did not "prohibit staff" from doing so. He could not recall any specific directive from Ravens LP or MSA to SAFE about how to respond to the crowd surges and gate openings. The stadium did not have a P.A. system outside to allow Ravens LP to communicate to employees or the crowd that the stadium was closed.

Mr. Sommerhof testified that, as far as he was aware, Ravens LP did not tell fans outside that the gates were closed. He suggested that doing so was unnecessary: "I think the gates being closed kind of tells you that the gates are closed." Mr. Parr testified that it took "several minutes" for SAFE to close Gate A1 after it was reopened. At some point after the crowd surge at Gate A1, 6 Gate C opened and a crowd surged at that gate as well. No one from SAFE requested further assistance outside of the gates and the surges persisted until additional police officers "actually stood in front of the gates, on the exterior side of the gates." The Complaint On February 5, 2016, Appellants filed a complaint in the Circuit Court for Baltimore City asserting negligence claims against each of the Appellees.

The complaint alleged that Appellees "anticipated a large number of individuals to attend the events taking place inside of M & T Bank Stadium" and at all times "were on notice of the possibility of large crowds ²²⁷ gathering at the entry of the facility and were on notice of the corresponding need for security." The separate counts against the individual Appellees consisted of mostly the same allegations: Appellees owed a duty of care to operate the stadium and to undertake security efforts with due care for attendees, including Appellants, and owed business invitees "a duty to use reasonable and ordinary care to maintain the premises in a safe condition, to exercise reasonable care to protect business invitees, and to warn of existing hazards." Based on these duties, Appellants alleged that Appellees should have posted employees "in a manner that would have allowed them to control the large crowd arriving at and entering the facility." Further, Appellants alleged that Appellees breached the duties of care they owed Appellants by, among other things, failing to advise/warn them of dangerous conditions that existed at M & T Bank Stadium; failing to make reasonable and necessary efforts to eliminate known dangerous conditions; providing security in an improper and ineffective manner; failing ⁹ to have sufficient agents, servants, and/or employee[s] providing security efforts; failing to utilize barricades and/or other crowd control devices; and in other respects not known to [Appellants], but which may become known prior to the time of trial. Appellants also denied any contributory negligence and claimed injuries as a direct and proximate result of Appellees' alleged negligence. Ravens LP filed an answer on March 16, 2016, generally denying liability and asserting that the court should dismiss the complaint for failure to state a claim on which relief can be granted. Additionally, Ravens LP asserted affirmative defenses of contributory negligence, assumption of risk, and that the statute of limitations barred Appellants' claim.

Motions for Summary Judgment Ravens LP moved for summary judgment on November 17, 2016. SAFE and MSA filed similar motions on November 18 and December 2, respectively. On December 6, Appellants opposed the motions for summary judgment by the Ravens ²²⁸ and SAFE and filed their opposition to MSA's motion on December 19. The circuit court held a hearing on December 21 to consider the motions for summary judgment.

Ravens LP argued, in main part, that Appellants were trespassers who tried entering the stadium more than half an hour after hearing the police helicopter announce that the stadium was closed. Any implied invitation from Ravens LP to Appellants to enter the stadium was revoked at the time Appellants heard the announcement that the stadium was full. Ravens LP contended that any "innocent mistake" by Appellants as to their status on the property does not change their legal status or the duty that Ravens LP owed them. They urged that it did not matter that Appellants were injured before entering the stadium because they intended to enter the stadium when they were injured.

Finally, Ravens LP suggested that the crowd approaching the stadium did not put the organization on notice because the size of the crowd did not cause the surges and the crowd did not have "pitchforks and knives" as it approached. Ravens LP concluded, "[o]nce these surges occurred, ... there was nothing to be done." SAFE argued the merits of its motion, proceeding on four points: (1) Appellants were trespassers; (2) there's "simply no evidence of negligence by [SAFE]" or any other defendant; (3) there was "no notice to [SAFE] of any dangerous or defective condition on the property" as a plaintiff is required to show when proceeding on a premises-liability theory of negligence; and (4) Appellants were contributorily negligent. The court pressed SAFE on when exactly it was that Appellants became trespassers. SAFE responded, "[i]t was a free event until it was closed and there was no more entry.

And once the stadium was closed, people on the property became trespassers." Additionally, SAFE argued that it could not be liable because, by the time Appellants were injured, "[t]he police had taken control of the situation outside of the stadium[,]" relieving SAFE of any standard of care. SAFE asserted that it was ²²⁹ "impossible" that any of the Appellees had even constructive notice of the alleged danger or defective condition because, based on Ms. Sutton-Witherspoon's own deposition testimony, "the surge was sudden and instant." And, even assuming there was notice, SAFE continued, "there was certainly no reasonable time to either cure or warn [Appellants] of the surge that was coming." Finally, SAFE argued that Appellants were contributorily negligent because ¹⁰ they knew or should have known that the crowd was unsafe and they nevertheless participated in the crowd. MSA was third to argue, asserting that it was "in an even superior position for summary judgment" because Ravens LP controls the events along with their independent contractor, SAFE. According to MSA, the facts were undisputed and "it's clear that [MSA] had no role to play in deciding ... that this would be an open unticketed event.

No role in deciding how the gates to the stadium would be staffed, how police would be position[ed], how [SAFE] would be positioned, et cetera, et cetera." And the only thing Appellants could allege to the contrary, MSA argued, was the self-serving deposition testimony of Mr. Parr, who claimed that MSA was responsible for controlling the area beyond the gates where Appellants' injuries occurred. Further, MSA claimed that, although there was notice the crowd was approaching with the parade, there was no notice of danger to Appellees because the crowd was "orderly ... [and] happy ... not a rampant dangerous mob that would have given anybody notice[.]" Finally, MSA suggested that it was not on notice of potential crowd surges because, following the Ravens' Super Bowl victory in 2001, Ravens LP did not host their parade at the stadium and there was no stampede at that previous parade. In opposition, Appellants asserted that two factual discrepancies exist in the record that must be resolved in their favor: (1) there was no conclusive evidence of who opened Gate C or that it was opened unlawfully and (2) other than the police helicopter by Oriole Park, there was no evidence of any announcement at the stadium that the stadium was closed for entry. Next, Appellants contended that Ravens LP extended ²³⁰ an open invitation to the stadium, indicating that concessions and merchandise would be available there, meaning Appellants could not be considered trespassers unless Ravens LP retracted that invitation at some point.

According to Appellants, the fire marshal's decision that the stadium reached capacity is distinguishable from the Ravens LP or SAFE retracting the open invitation to attend the Celebration-and "[t]here was absolutely no communication" between Ravens LP or SAFE and the Appellants, despite the huge crowd approaching the stadium. Attributing the police helicopter's message to Appellees was "a tremendous leap" and would, "at the very least," require the court to impermissibly draw an inference against Appellants as the non-moving party Additionally, Appellants argued that Appellees understaffed the Celebration because it was unticketed and provided only a "scaled-down crowd management and security force." In response to a question from the court on standard of care, Appellants suggested that Appellees' past practice for sold-out events, in part, established a standard of care for the Celebration and that Appellees' decisions that day created a hazard. Appellants' counsel stated: "I think that there can be an imputation of negligence based on [the fact] that there was some knowledge of the need