Union Memorial Hospital v. Dorsey

VICTOR K. BUTANIS, Judge, Specially Assigned. Sally E. Dorsey, appellee, filed a one count complaint in the Circuit Court for Baltimore City alleging negligence on the part of Union Memorial Hospital, appellant. Following a jury trial, Ms. Dorsey was awarded $11,202.70 in economic damages and $120,000 in non-economic damages. Union Memorial Hospital noted a timely appeal and, for our review, presents three questions, which we have rephrased slightly: ²⁸⁰ I. Did the trial court abuse its discretion in determining that, as a matter of law, appellee was not contributorily negligent?

II

Did the trial court abuse its discretion in denying appellant’s motion in limine to preclude appellee from introducing evidence at trial that she had failed to provide in her answers to interrogatories?

III

Did the Administrative Judge abuse his discretion in twice deferring dismissal of this case under Rule 2-507 after expiration of the date set for trial on his first order deferring dismissal? We answer appellant’s first question in the affirmative and reverse and remand the case for a new trial. For the guidance of the trial court, we also address the second question and are unable to discern any abuse of discretion. Finally, we reach appellant’s third question because a violation of Rule 2-507 would have required dismissal of the case.

Perceiving no abuse of discretion on the part of the Administrative Judge in deferring, several times, operation of that Rule, we answer the third question in the negative. FACTUAL BACKGROUND On the afternoon of May 20, 1991, Ms. Dorsey and Wanda Allen, who were employed by Maryland National Bank, went to an automatic teller machine (ATM) located in Union Memorial Hospital (Union Memorial or the Hospital) to replenish the machine with money, paper, and envelopes. At the Hospital, they found the room that led to the ATM to be filled with fifteen to twenty bags of trash. At trial, Ms. Dorsey testified that a gurney was also in the room, cole slaw and potato salad were on the floor, and liquid was leaking from the garbage bags.

Ms. Allen entered the room and began moving the bags to clear a path to the ATM. Ms. Dorsey followed behind her. [let] While they were moving the garbage bags, Ms. Dorsey slipped and fell to the floor. Ms. Allen testified that Ms. Dorsey slipped on some liquid leaking from the bags. Ms. Allen also stated that Ms. Dorsey “got caught up in” the bags ²⁸¹ as they were moving them out of the way.

Ms. Dorsey testified that she was following Ms. Allen when she slipped on one of the bags and fell, striking her right knee. She explained that her shoe got caught on one of the bags. Ms. Dorsey added that she was not sure if she slipped on the liquid on the floor or if her foot became caught in a bag, but stated that she did not realize a liquid was on the floor until she ended up lying in it after the fall. On several prior occasions, Ms. Dorsey and Ms. Allen had found the room filled with trash and had maintenance personnel move the garbage out of the way.

They also complained to a maintenance worker, a maintenance supervisor, and the bank manager about the trash in the room. Although Ms. Dorsey had waited for maintenance personnel to clean the room on prior occasions, she had to reach a lock on the ATM by a certain time or the police and FBI would be alerted automatically. She explained that if she waited for the maintenance personnel, she was “going to get balled out....” Prior to entering the room on the date in question, Ms. Dorsey did not ask anyone from the Hospital to move the garbage bags for her. We will include additional facts as necessary in our discussion of the questions presented.

DISCUSSION I. Union Memorial contends that the trial court abused its discretion in declining to instruct the jury on the defense of contributory negligence and in deciding that Ms. Dorsey was not contributorily negligent as a matter of law. The Hospital claims that as Ms. Dorsey saw the debris scattered about the room and had previously required maintenance personnel to clean the room, but did not ask maintenance personnel for assistance on this particular occasion and voluntarily entered the room on the date she fell, the question of her contributory negligence should have been submitted to the jury. Union Memorial further claims that the evidence presented at trial ²⁸² supported a finding that Ms. Dorsey was contributorily negligent as a matter of law because she realized the risks and voluntarily chose to negotiate them. “ ‘Contributory negligence is the failure to observe ordinary care for one’s own safety. “It is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances.” ’ ” Menish v. Polinger Co., 277 Md. 553, 559 , 356 A.2d 233 (1976) (quoting Kasten Constr. Co. v. Evans, 260 Md. 536, 541 , 273 A.2d 90 (1971) (quoting Potts v. Armour Co., 183 Md. 483, 490 , 39 A.2d 552 (1944))). “Ordinarily, the question of whether the plaintiff has been contributorily negligent is for the jury, not the judge, to decide.” Campbell v. Baltimore Gas & Elec.

Co., 95 Md.App. 86, 93 , 619 A.2d 213 , cert. denied, 331 Md. 196 , 627 A.2d 538 (1993). If the plaintiff was contributorily negligent, it will bar her recovery. Casper v. Charles F. Smith & Son, Inc., 71 Md.App. 445, 472 , 526 A.2d 87 (1987). The defendant carries the burden of proving that the plaintiff was contributorily negligent.

Moodie v. Santoni, 292 Md. 582, 586 , 441 A.2d 323 (1982). If there is any evidence, however , slight, legally sufficient as tending to prove contributory negligence, the weight and value of that evidence must be left to the jury. To be legally sufficient, the evidence must be beyond “a mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture____” Chudson v. Ratra, 76 Md.App. 753, 756 , 548 A.2d 172 (1988), cert. denied, 314 Md. 628 , 552 A.2d 894 (1989) (quoting Fowler v. Smith, 240 Md. 240, 247 , 213 A.2d 549 (1965)). Only when the minds of reasonable persons cannot differ is the court justified in deciding the question of a plaintiffs contributory negligence as a matter of law.

Moodie, 292 Md. at 589 , 441 A.2d 323 . “ ‘[I]f there is no evidence of acts or conduct from which reasonable minds could find or infer negligence on the part of a plaintiff, it would be error not to withdraw the issue of contributory negligence from the consideration of the ²⁸³ jury.’ ” Id. at 589-90, 441 A.2d 323 (quoting Wiggins v. State, Use of Collins, 232 Md. 228, 237 , 192 A.2d 515 (1963)). But before a plaintiff can be held to be free of contributory negligence as a matter of law, “the truth of all the credible evidence tending to sustain the claim of [contributory] negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish [contributory] negligence drawn.” Chudson, 76 Md.App. at 756 , 548 A.2d 172 (quoting Fowler, 240 Md. at 246 , 213 A.2d 549 ). The flip side of this question, i.e., whether the plaintiff was contributorily negligent as a matter of law, “must be considered in the light of all the inferences favorable to the plaintiffs case that may be fairly deduced from the evidence. Where there is a conflict of evidence as to material facts relied on to establish contributory negligence, or more than one inference may be reasonably drawn therefrom, the question should be submitted to the jury.

In order that a case may be withdrawn from the jury on the ground of contributory negligence, the evidence must, show some prominent and decisive act which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds.” Menish, 277 Md. at 563 , 356 A.2d 233 (quoting Reiser v. Abramson, 264 Md. 372, 377-78 , 286 A.2d 91 (1972)) (emphasis added). “The prominent and decisive act or omission must reveal that the injured party was or should have been aware of a dangerous situation and failed to exercise ordinary care to protect himself.” G.C. Murphy Co. v. Greer, 75 Md.App. 399, 402 , 541 A.2d 996 (1988). In responding to the Hospital’s request for an instruction on contributory negligence, the trial court discussed the case, to some degree, in terms of assumption of the risk. These affirmative defenses, although closely intertwined, are distinct concepts. See Schroyer v. McNeal, 323 Md. 275, 280 , 592 A.2d 1119 (1991) (citations omitted) (“Assumption of the ²⁸⁴ risk and contributory negligence are closely related and often overlapping defenses.

They may arise from the same facts and, in a given case, a decision as to one may necessarily include the other.”); Hooper v. Mougin, 263 Md. 630, 633 , 284 A.2d 236 (1971) (distinction between contributory negligence and assumption of the risk “is slight, often difficult to pinpoint and usually of little practical significance; however, this Court has recognized that some legal difference exists”); Warner v. Markoe, 171 Md. 351, 359-60 , 189 A. 260 (1937) (“Contributory negligence ... means negligence which contributes to cause a particular accident which occurs, while assumption of risk of accident means voluntary incurring [the risk] of an accident which may not occur, and which the person assuming the risk may be careful to avoid after starting. Contributory negligence defeats recovery because it is a proximate cause of the accident which happens, but assumption of the risk defeats recovery because it is a previous abandonment of the right to complain if an accident occurs.”) Although the trial court did not instruct on either contributory negligence or assumption of the risk, we limit our discussion to the propriety of the trial court’s conclusion that Ms. Dorsey was not contributorily negligent as a matter of law, thus declining to instruct the jury on contributory negligence. We do so for two reasons. First, although Union Memorial submitted a proposed instruction on assumption of the risk, it did not object to the court’s failure to so instruct the jury.

See Md. Rule 2-520(e) (“No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.”) Second, before this Court, Union Memorial contends only that the trial court erred in failing to give an instruction on contributory negligence and/or in failing to find that Ms. Dorsey had been contributorily negligent as a matter of law. See Md. Rule 8-504(a)(3) & (5) (party is required to set forth a statement of questions presented, the legal propositions involved, and argument in support of the party’s position); Jacober v. High Hill ²⁸⁵ Realty, Inc., 22 Md.App. 115, 125 , 321 A.2d 838 , cert. denied, 272 Md. 743 (1974) (argument not presented in brief will not be considered on appeal). Turning to the facts in the present case, Ms. Dorsey testified that she saw the garbage bags strewn about, the cole slaw and potato salad on the floor, and a liquid leaking from the bags, but still entered the room. Although no testimony was presented at trial regarding the lighting conditions in the room, Ms. Dorsey and Ms. Allen testified that they could clearly see the debris.

In contrast, the defense presented several answers to interrogatories, which were stipulated to be Ms. Dorsey’s answers and were signed by Ms. Dorsey under oath. One of the interrogatories stated that the room she entered was dark and that “she was required to walk into this area to turn the light on and this is when the fall occurred.” In view of Ms. Dorsey’s knowledge of the conditions in the room, the questions concerning the lighting in the room, and her decision to encounter the apparent hazards, reasonable minds could differ on whether Ms. Dorsey was contributorily negligent in entering the room. As a result, the trial court erred in determining that Ms. Dorsey was not contributorily negligent as a matter of law and in removing that question from the jury’s consideration. Compare Menish, 277 Md. 553, 568-69 , 356 A.2d 233 (issue of plaintiffs contributory negligence was properly submitted to jury where plaintiff slipped and fell on icy walk, but plaintiff had no knowledge of icy condition or that icy condition was likely to form and that ice was invisible due to its transparency); Suitland Manor Owner’s Assoc., Inc. v. Cadle, 257 Md. 230, 232 , 262 A.2d 529 (1970) (where plaintiff saw janitor mopping floor as she entered office and, at that same instant, slipped and fell, question of plaintiffs contributory negligence was for jury to decide); Raff v. Acme Mkts., 247 Md. 591, 599-600 , 233 A.2d 786 (1967) (where plaintiff slipped and fell on icy ramp at grocery store, issue of plaintiffs contributory negligence was a question for the jury; although parking lot was covered with snow and ice, plaintiff could have assumed that the ramp was an extension of the ²⁸⁶ sidewalk, which had been cleared of snow and ice, and was therefore safe to use).

We are unable, however, to reach the conclusion Union Memorial draws from the evidence — that Ms. Dorsey was contributorily negligent as a matter of law. In Craig v. Greenbelt Consumer Servs., 244 Md. 95, 97-98 , 222 A.2d 836 (1966), the plaintiff was held to be contributorily negligent as a matter of law when she observed a pile of sawdust and, knowing that it was slippery, “without hesitating to plan her course ... when she had a reasonable alternative[,]” walked into the pile and slipped and fell. Under a similar set of circumstances, the plaintiff in McManamon v. High’s Dairy Prods. Corp., 230 Md. 370, 372 , 187 A.2d 318 (1963), was contributorily negligent as a matter of law.

There, although the plaintiff was pregnant and could have avoided the danger by asking a clerk for assistance, she chose to walk on a damp floor and fell, injuring herself. See also Eyler v. Adolph Beauty Sys., 238 Md. 227, 229 , 208 A.2d 609 (1965) (plaintiff was contributorily negligent as a matter of law where he saw ice on sidewalk, but proceeded without hesitating or planning his course and elected to step on the ice); Sugar v. Traub, 233 Md. 320, 322-23 , 196 A.2d 869 (1964) (plaintiff who walked into utility room without looking where she was going and then slipped and fell in a pool of water was contributorily negligent as a matter of law); Berzups v. H.G. Smithy Co., 22 Md.App. 157, 163-65 , 321 A.2d 801 , cert. denied, 272 Md. 737 (1974) (plaintiff was contributorily negligent as a matter of law where he saw ice on step and voluntarily chose unsafe route). Here, Ms. Dorsey saw the hazards, but did not boldly encounter them as the plaintiffs did in Craig, McManamon, Eyler, and, Berzups . She and Ms. Allen moved the trash bags, apparently attempting to clear a safe path through the debris.

Although Ms. Dorsey testified that cole slaw and potato salad were on the floor and that a liquid was leaking from the bags, she also stated that she only realized a liquid was beneath her feet after she fell and her clothing became wet. Finally, Ms. Dorsey did not seek assistance from the ²⁸⁷ Hospital’s maintenance personnel, but she was under a time constraint and would have had to first locate and then wait for the maintenance workers to clear the room. Accordingly, the question of whether Ms. Dorsey failed to exercise ordinary care for her own safety in entering the room was a question for the jury to decide.

II

Prior to trial, in September 1995, Union Memorial served written interrogatories on Ms. Dorsey. Two of the interrogatories asked Ms. Dorsey to: “State the facts, if any, upon which you rely in alleging that this Defendant was solely responsible for the occurrence.” “State what, if any, precautions or actions the Plaintiff took to avoid the occurrence.” In May 1996, Union Memorial received Ms. Dorsey’s response to the interrogatories. Ms. Dorsey’s answer to both the above quoted interrogatories was, “Marty, please answer.” On the date set for trial, Union Memorial filed a motion in limine to preclude Ms. Dorsey from offering any evidence on the subjects referenced in the interrogatories at issue. Prior to the start of trial, the court heard argument from counsel and denied the motion, concluding that as the Hospital had not moved for an order to compel, it was not entitled to any sanctions.

Union Memorial claims that the trial court abused its discretion in refusing to sanction Ms. Dorsey. It contends that when a party fails to provide a full response to interrogatories, as required by Md. Rule 2-421(b), a party may move for sanctions without first obtaining an order compelling discovery under Md. Rule 2-432. The Hospital emphasizes that the information it sought through the interrogatories was essential to its defense of contributory negligence. It further argues that as Ms. Dorsey was aware of the error and did nothing to supplement her answers, the omission “was clearly willful and deliberate.” Union Memorial contends that in light ²⁸⁸ of Ms. Dorsey’s answers to the interrogatories, coupled with her failure to supplement the answers, the trial court abused its discretion in declining to impose any sanction and believes that dismissal of the case was the appropriate sanction.

Maryland Rule 2-432(a) allows, in certain circumstances, for sanctions to be imposed without first obtaining an order compelling discovery and provides in relevant part: (a) Immediate sanctions for certain failures of discovery. A discovering party may move for sanctions under Rule 4-433(a), without first obtaining an order compelling discovery under section (b) of this Rule, if a party ... fails to appear before the officer who is to take that person’s deposition, after proper notice, or if a party fails to serve a response to interrogatories under Rule 2-421 or to a request for production or inspection under Rule 2-422, after proper service. Any such failure may not be excused on the ground that the discovery sought is objectionable unless a protective order has been obtained under Rule 2-403. A party may also seek an order to compel discovery under the Rule 2-432(b), which states in part: (b) For order compelling discovery.

A discovering party, upon reasonable notice to other parties and all persons affected, may move for an order compelling discovery if (1) there is a failure of discovery as described in section (a) of this Rule, # jfc * # H: * (4) a party fails to answer an interrogatory submitted under Rule 2-421, [or] * # ífc # sH (6) a party fails to supplement a response under Rule 4-201(e).... A variety of sanctions for failure of discovery are provided for in Rule 2-433(a) 1 including: an order that certain facts are taken as established; refusing to allow a party to present ²⁸⁹ or oppose a claim or defense; prohibiting a party from presenting designated matters in evidence; striking out pleadings; staying further proceedings until discovery is provided; dismissing the action; or entering a judgment by default. These sanctions may be imposed upon a motion filed under Rule 2-432(a), if the court finds a failure of discovery. Md. Rule 2-433(a).

They may also be imposed if a party fails to comply with an order to compel. See Md. Rule 2-433(b) (“If a person fails to obey an order compelling discovery, the court, upon motion of