Tennant v. Shoppers Food Warehouse MD Corp.

HOLLANDER, Judge. Gwendolyn Tennant, appellant, instituted a negligence suit against Shoppers Food Warehouse Md. Corp., appellee, in the Circuit Court for Prince George’s County, to recover for injuries appellant sustained when she slipped and fell in appellee’s grocery store. After the circuit court granted appellee’s motion for summary judgment, appellant timely noted her appeal. She presents the following questions for our review: I. Whether there was a genuine issue of material fact as to whether the vegetable leaves which according to appellant’s testimony were swept in a neat circle were done so and placed there by the appellee, and whether this was the proximate cause of appellant’s fall?

II

Whether the empty vegetable box belonging to appel-lee and which was placed under the counter partially hidden and over which the appellant tripped and fell was placed there by the appellee, and whether this was the proximate cause of appellant’s fall?

III

Whether the vegetable leaves on which appellant slipped or the box over which she tripped and fell after slipping or both were the proximate cause of the appellant’s fall?

IV

Whether there were genuine issues of material fact in dispute so as to preclude the grant of summary judgment to appellee? Appellee, in its brief, has framed the issues as follows: I. Did plaintiff present sufficient evidence that defendant Shoppers Food Warehouse had prior actual or constructive notice of the substance that allegedly caused plaintiffs accident to establish a prima facie case of negligence? ³⁸⁴ II. Whether a box on the floor of a grocery store produce aisle in the position it was in at the time of this incident constitutes an open and obvious condition? For the reasons discussed below, we conclude that the circuit court erred in granting summary judgment in favor of appellee.

Accordingly, we shall reverse the judgment and remand the case to the circuit court for further proceedings. Factual Background On April 4, 1991, at about 3:30 p.m., appellant slipped and fell in front of the cabbage display at the Shoppers Food Warehouse in Takoma Park, Maryland. At her deposition, appellant said that she slipped on a pile of cabbage or spinach leaves that had been swept into a “neat pile.” Ms. Tennant explained that she did not fall, because she was able to steady herself by gripping the side of the cabbage case. Thereafter, Ms. Tennant took a step with her right foot, and tripped and fell over an empty box that protruded partially from under the cabbage case. 1 After she fell, appellant claimed that she experienced “excruciating pain.” It was later determined that she fractured her right fifth metatarsal, and suffered pelvic and back strain.

At the time of the incident, appellant was with her husband, and they had only been in the store for about five minutes. Appellant described her fall at two points in her deposition. Initially, she said: [Ms. Tennant]: ... I entered on the right side and the aisle, and the aisle against the walk [sic] and the middle aisle, the cabbage stall was on the middle aisle, the first middle aisle.

I stopped there to pick up a cabbage, I rested my left hand on the little piece of board that’s there and reached over to pick up the cabbage and I slipped, tried to balance, and then ³⁸⁵ my foot slipped against and bumped, slipped against an empty box, spinach box that was there, tripped over it and fell down. The box moved, lost my balance, tripped over it, fell down. She later recounted the following: [Ms. Tennant]: No, I didn’t [fall down when I slipped on the leaves], I reached, I caught up, made another step to the right and my foot, my foot touched against the box that was there, the box moved suddenly and I lost my balance, tripped over the box. [Counsel for appellee]: Before you touched the box, when you started to slip were you off balance then? [Ms. Tennant]: No, because I had caught it [sic],[ 2 ] When asked whether she had seen the leaves before she fell, Ms. Tennant answered, “No.” Appellee also asked appellant whether she had seen the box before she fell, and appellant again responded “No.” When counsel for appellee inquired whether appellant’s view of the box was obstructed, she answered, “No, I was looking at the cabbage bin.” After counsel for appellee repeated the question, Ms. Tenant said, “No. I did not expect the box.” Moreover, appellant did not know how long either the leaves or the box had been in the position they were in at the time of her fall. After the accident, appellant contended that two store employees who were in the produce section came to the scene.

Ms. Tennant did not know the names of these employees. One employee swept the pile of vegetable leaves under the cabbage display case. The other employee asked Ms. Tennant to get up, but she could not. Marvin Nash, the store manager, came to the scene shortly thereafter.

He took a report of the accident and photographs of the position of the cardboard box. Mr. Nash stated in his deposition that it was a general practice for employees to keep boxes in front of them while working, to discard empty boxes ³⁸⁶ when finished, and not to leave empty boxes in the produce section. Mr. Nash had no knowledge whether this policy was a written one. Ms. Tennant testified at the deposition that she heard Mr. Nash tell an employee that he had repeatedly told him not to leave boxes under the produce stall.

Appellee requested a hearing on its summary judgment motion, but the docket entries do not reflect that a hearing was held. Nor did the circuit court issue a memorandum opinion accompanying its order, explicating the reasons for its decision. Both parties generally assert in their briefs the same bases for either the grant or denial of summary judgment that they asserted below. Discussion “In deciding a motion for summary judgment ... the trial court must decide whether there is any genuine dispute as to material facts and, if not, whether either party is entitled to judgment as a matter of law.” Bagwell v. Peninsula Regional Med.

Ctr., 106 Md.App. 470, 488 , 665 A.2d 297 (1995), cert. denied, 341 Md. 172 , 669 A.2d 1360 (1996); see also Md. Rule 2-501; Davis v. DiPino, 337 Md. 642 , 655 A.2d 401 (1995); Beatty V. Trailmaster Products, Inc., 330 Md. 726, 737-38 , 625 A.2d 1005 (1993); Bits “N” Bytes Computer Supplies, Inc. v. Chesapeake & Potomac Telephone Co., 97 Md.App. 557, 576-77 , 631 A.2d 485 (1993), cert. denied, 333 Md. 385 , 635 A.2d 425 (1994); Seaboard Surety Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242-45 , 603 A.2d 1357 (1992). When there is no dispute as to material fact, we review the trial court’s decision to determine whether it is legally correct. Beatty, 330 Md. at 737 , 625 A.2d 1005 ; Bagwell, 106 Md.App. at 488 , 665 A.2d 297 . To defeat a motion for summary judgment, the party opposing the motion must present admissible evidence to show the existence of a dispute of material fact.

Bagwell, 106 Md.App. at 488 , 665 A.2d 297 ; Commercial Union Ins. Co. v. Porter Hayden, 97 Md.App. 442, 451 , 630 A.2d 261 (1993), rev’d on other grounds, 339 Md. 150 , 661 A.2d 691 (1995). A party cannot establish the existence of a dispute merely by making ³⁸⁷ formal denials or general allegations of disputed facts. Bagwell, 106 Md.App. at 488 , 665 A.2d 297 ; Seaboard Surety Co., 91 Md.App. at 243 , 603 A.2d 1357 .

Moreover, the evidence offered to show the existence of a dispute of fact must be sufficiently detailed and precise to enable the trial court to make its ruling as to the materiality of the proffered fact. Beatty, 330 Md. at 738 , 625 A.2d 1005 ; Bagwell, 106 Md.App. at 489 , 665 A.2d 297 . The party’s production of a disputed fact will not bear on the determination of a motion for summary judgment, however, unless that fact is material to the dispute, i.e. “a fact that will alter the outcome of the case depending upon how the factfinder resolves the dispute over it.” Bagwell at 489, 665 A.2d 297 ; see also King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985); Keesling v. State, 288 Md. 579, 583 , 420 A.2d 261 (1980). Additionally, all disputes of fact, as well as all inferences reasonably drawn from the evidence, must be resolved in favor of the non-moving party.

Bagwell, 106 Md.App. at 488 , 665 A.2d 297 . In their briefs and at oral argument, the parties discussed the question of proximate cause; appellant argued that the box caused her to fall, and appellee seemed to claim that the leaves caused the fall. In our view, whether the pile of leaves or the box was the proximate cause of appellant’s fall is of no moment for purposes of reviewing the grant of summary judgment. Rather, Appellant’s Question IV is dispositive; it asks whether there was a dispute of material fact so as to preclude summary judgment.

As amplified, appellant asserts that there is a material factual dispute about whether the employer negligently created a dangerous condition by placing the pile of leaves or the box in the produce aisle of a grocery store. It is well-settled that the duty of an owner or occupier of land “depends upon the status of the plaintiffs at the time of the accident.” Casper v. Chas. F. Smith & Son, Inc., 316 Md. 573, 578 , 560 A.2d 1130 (1989). In Maryland, the duty that an owner or occupier of land owes to persons entering onto the land varies according to the visitor’s status as an invitee (i.e. a business invitee), a licensee by invitation ³⁸⁸ (i.e., a social guest), a bare licensee, or a trespasser.

Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 44 , 656 A.2d 307 (1995); Wagner v. Doehring, 315 Md. 97, 101 , 553 A.2d 684 (1989); Rowley v. Mayor of Baltimore, 305 Md. 456, 464-65 , 505 A.2d 494 (1986). The highest duty is owed to a business invitee, defined as “one invited or permitted to enter another’s property for purposes related to the landowner’s business.” Casper v. Chas. F. Smith & Son, Inc., 71 Md.App. 445, 457 , 526 A.2d 87 (1987), aff'd, 316 Md. 573 , 560 A.2d 1130 (1989).

See Lane, 338 Md. at 44 , 656 A.2d 307 ; Howard County Bd. of Educ. v. Cheyne, 99 Md.App. 150, 155 , 636 A.2d 22 (1994), cert. denied, 335 Md. 81 , 642 A.2d 192 (1994). Nevertheless, an owner or occupier of land only has a duty to exercise reasonable care to “protect the invitee from injury caused by an unreasonable risk” that the invitee would be unlikely to perceive in the exercise of ordinary care for his or her own safety, and about which the owner knows or could have discovered in the exercise of reasonable care. Casper, 316 Md. at 582 , 560 A.2d 1130 ; see Lane, 338 Md. at 44 , 656 A.2d 307 (stating owner owes “a duty of ordinary care to keep the property safe for the invitee.”); Evans v. Hot Shoppes, Inc., 223 Md. 235, 239 , 164 A.2d 273 (1960); Pahanish v. Western Trails, Inc., 69 Md.App. 342, 355 , 517 A.2d 1122 (1986). 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.

The occupier must not only use care not to injure the visitor by negligent activities, and warn him of hidden dangers known to the occupier, but he must also act reasonably to inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use of the property. W. Page Keeton, et. al., Prosser and Keeton on the Law of Torts, § 61, at 425-26 (5th ed.1984) (footnotes omitted). ³⁸⁹ In Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 117 , 113 A.2d 405 (1955), the Court of Appeals expressed these principles when it said: It is an accepted statement of law that a possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (1) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (2) has no reason to believe that they will discover the condition or realize the risk involved therein, and (3) invites or permits them to enter or remain upon the land without exercising reasonable care to make the condition reasonably safe, or to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility. Although the business invitor has a duty to protect against unreasonably dangerous conditions, the business invitor is not an insurer of the invitee’s safety. Moulden v. Greenbelt Consumer Services, Inc., 239 Md. 229, 232 , 210 A.2d 724 (1965); Lexington Market Authority v. Zappala, 233 Md. 444, 446 , 197 A.2d 147 (1964).

Like the owner, the invitee has a duty to exercise due care for