Webb v. Giant of Maryland

Karen Webb v. Giant of Maryland, LLC, No. 12, September Term, 2021. Opinion by Harrell, J. APPEAL AND ERROR – REVIEW – SCOPE AND EXTENT OF REVIEW – JUDGMENT IN GENERAL – IN GENERAL Court of Special Appeals correctly applied a de novo standard when reviewing circuit court’s denial of a motion for judgment filed by Respondent at the close of evidence. In reviewing the circuit court’s decision, the Court conducted the same analysis as the circuit court and reviewed the evidence in a light most favorable to Petitioner (the non-moving party). Based on that review, which the Court conducted without deference to the circuit court, the Court held that the evidence was insufficient to submit Petitioner’s negligence claim to the jury and that, as a result, Respondent was entitled to judgment as a matter of law.

The Court’s analysis was sound and consistent with established precedent. LABOR AND EMPLOYMENT – RIGHTS AND LIABILITIES AS TO THIRD PARTIES – WORK OF INDEPENDENT CONTRACTOR – IN GENERAL Court of Special Appeals did not err in reversing circuit court’s denial of Respondent’s motion for judgment. The evidence, even when viewed in a light most favorable to Petitioner, did not permit an inference that Respondent retained sufficient control over the work of the independent contractor who caused Petitioner’s injuries. The evidence established that Respondent had only a general control over the contractor’s work, which was insufficient to establish Respondent’s liability.

Moreover, any control Respondent may have had over the contractor’s work did not extend to the very thing from which Petitioner’s injuries arose. TRIAL – INSTRUCTIONS TO JURY – NECESSITY AND SUBJECT MATTER – FAILURE OF A PARTY TO TESTIFY OR TO CALL WITNESS OR PRODUCE EVIDENCE APPEAL AND ERROR – HARMLESS AND REVERSIBLE ERROR – PARTICULAR ERRORS – INSTRUCTIONS – IN GENERAL Court of Special Appeals did not err in holding that the circuit court’s spoliation instruction was improper and prejudicial. The Court properly reviewed the circuit court’s decision to give the instruction for abuse of discretion. The Court then correctly determined that the instruction was not applicable under the facts of the case given that there was no indication that the evidence at issue – a video recording of the incident that caused Petitioner’s injuries – had ever existed.

The Court likewise did not err in holding that the instruction was prejudicial. Not only was the instruction misleading, but it required the jury to speculate about the applicability of a legal principle, i.e., the inference to be drawn from the destruction or concealment of evidence, regarding evidence that was never shown to exist in the first place. Circuit Court for Anne Arundel County Case No. C-02-CV-17-003054 Argued: October 6, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 12 September Term, 2021 KAREN WEBB v. GIANT OF MARYLAND, LLC Getty, C.J., McDonald, Watts, Hotten, Booth, Biran, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ. Opinion by Harrell, J. Filed: December 21, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-12-21 11:46-05:00 Suzanne C. Johnson, Clerk Petitioner, Karen Webb, was injured while shopping at a supermarket owned and operated by Giant of Maryland, LLC, Respondent (“Giant”).

Petitioner filed suit against Giant in the Circuit Court for Anne Arundel County alleging negligence and negligent hiring, training, and supervision. A jury returned a verdict in Petitioner’s favor. Giant noted an appeal to the Court of Special Appeals. That Court, in a reported opinion, reversed the circuit court’s judgment.

The intermediate appellate court held that the circuit court erred in denying a motion for judgment made by Giant at the close of evidence and that the circuit court erred in giving a jury instruction on spoliation. Giant of Maryland, LLC v. Webb, 249 Md. App. 545 (2021). Petitioner sought certiorari review by this Court. We granted a writ, Webb v. Giant of Maryland, LLC, 474 Md. 633 (2021), to consider the following questions, which we have rephrased for clarity: 1.

Did the Court of Special Appeals apply the correct standard of review when reviewing the circuit court’s denial of Giant’s motion for judgment? 2. Did the Court of Special Appeals err in reversing the circuit court’s judgment on the grounds that the circuit court had erroneously denied Giant’s motion for judgment? 3. Did the Court of Special Appeals, in reviewing the circuit court’s decision to instruct the jury on spoliation, fail to address whether the circuit court’s decision was an abuse of discretion and then err in holding that the instruction was prejudicial? For reasons to be explained, we shall affirm the judgment of the Court of Special Appeals.

BACKGROUND On 4 December 2014, Petitioner was injured while shopping in the frozen-foods section of a Giant supermarket. The injury occurred when Petitioner came in contact with a non-motorized pallet jack that was being operated by Keydonne Winzer, a PepsiCo (“Pepsi”) employee. At the time, Winzer, acting as a deliveryman for Pepsi, was using the pallet jack to transport pallets of Pepsi products through the store to re-stock shelves. According to Petitioner, the pallet jack struck her in the back, which caused her to fall to the ground and become injured.

It is now undisputed that, at the time of the incident, Winzer was an employee of Pepsi, not Giant. Petitioner sued Giant for negligence and negligent hiring, training, and supervision.1 Petitioner claimed, among other things, that Giant was liable vicariously for Winzer’s actions. Motion for Summary Judgment Prior to trial, Giant filed a motion for summary judgment, arguing that Giant could not be held liable for the actions of Winzer. Petitioner responded that, even if Winzer was not a Giant employee, Giant nevertheless controlled many aspects of his work, including his use of the pallet jack and, thus, was liable for his actions.

The circuit court denied Giant’s motion, without a hearing. Trial Testimony At trial, Winzer testified that he was, at all relevant times, an employee of Pepsi and that he received all of his training from Pepsi. He testified further that, on the day of the incident, he was at the Giant supermarket to make sure Pepsi products were stocked. Winzer maintained that no one from Giant ever told him how to stock the Pepsi products.

He added that the pallet jack he used to stock the shelves was owned by Giant and that 1 Petitioner attempted later to join Pepsi as a defendant. Pepsi moved to dismiss based on limitations. The circuit court granted the motion. 2 Giant had given him permission to use the pallet jack for that purpose. Upon arriving that day at the store, he checked in with a Giant employee, as required.

Kevin Corradini, Giant’s designated Corporate Representative, testified during a video deposition (played at trial) that vendors’ employees, like Winzer, are permitted to use the non-motorized pallet jacks while in the store. Corradini stated that the store also has motorized pallet jacks, which may only be used by certified store employees. Vendors, like Winzer, are not instructed generally “where to move and how to move throughout the store[,]” but they are expected to do so safely while in the store. A vendor could be removed from a store if he is “not doing something properly.” Motion for Judgment2 At the conclusion of Petitioner’s case-in-chief, Giant moved for judgment on the grounds that there was no evidence to support a claim for vicarious liability, given that Winzer was not an agent, servant, or employee of Giant.

The circuit court denied the motion and found that there was sufficient evidence to show that Giant had the necessary control over Winzer’s actions while he was in the store. 2 The Amicus brief in this case focuses on a premises liability theory of recovery. This argument is not before us, however. Although such a theory was advanced in the trial court, the trial judge rejected it at the close of the evidence. The appeal did not challenge that ruling.

To be sure, such a theory does not appear to be frivolous on this record. The Restatement (Second) of Torts states, in relevant part at Section 415: “A possessor of land who holds it open to the public for any purpose is subject to liability to members of the public entering for that purpose for physical harm caused to them by his failure to exercise reasonable care to protect them against unreasonably dangerous activities of, or unreasonably dangerous conditions created by, an independent contractor or concessionaire employed or permitted to do work or carry on an activity on the land.” Whether Giant was entitled to judgment as a matter of law on this record will not be considered here. 3 Spoliation During his video deposition, Corradini stated that the Giant store where the incident occurred had video cameras “throughout the entire store[,]” including in the area of the frozen food section where Petitioner was injured. Prior to trial, he requested that the company that maintained Giant’s security cameras retain any video of the incident. Later, he learned that no such video existed.

Prior to jury instructions, Petitioner asked the circuit court to give a spoliation instruction in light of the fact that Giant did not produce a video of the incident. Giant objected, arguing that such an instruction would be prejudicial, given that there was no evidence that a video of the incident ever existed. The circuit court agreed with Petitioner and instructed the jury as follows: The destruction … of or the failure to preserve evidence by a party may give rise to an inference unfavorable to that party. If you find that the intent was to conceal the evidence, this destruction or failure to preserve must be inferred to indicate that the party believes that his or her case is weak and that he or she would not prevail if the evidence was preserved.

If you find that the destruction or failure to preserve the evidence was negligent you may but are not required to infer that the evidence, if preserved, would have been unfavorable to that party. During closing argument, Petitioner’s counsel emphasized the circuit court’s spoliation instruction: Another thing I really want you to pay close attention to is a spoliation instruction that the Judge gave you and I think this one is absolutely critical. You heard testimony from Giant’s rep about a couple different things. You heard they have 30 plus some odd cameras in the store that point – some cameras that point directly to the frozen food section.

You had the incident report. You know they were on notice that day. … We asked them to preserve the evidence. … And then we hear for the first time at trial … [that] it definitely doesn’t exist. 4 *** Do we really believe that there’s no video footage of this incident? There’s almost always video footage. And what I would submit is if there was footage it would probably corroborate and be consistent with Ms. Webb’s description but we don’t have it and that benefits them.

So when you’re thinking about that, what makes sense and what doesn’t, just bear that instruction in mind because I do think it’s really important. The Court of Special Appeals The jury returned a verdict in favor of Petitioner, and Giant noted an appeal to the Court of Special Appeals. Giant argued that the circuit court erred in denying its motion for summary judgment prior to trial and in denying its subsequent motion for judgment at the close of evidence. Giant also argued that the court erred in giving the spoliation instruction.3 The Court of Special Appeals reversed the circuit court’s judgment and held that, although the circuit court did not err in denying Giant’s motion for summary judgment, the court did err in denying Giant’s motion for judgment.

Giant, 249 Md. App. at 560-66 . Regarding the motion for summary judgment, the Court noted that the denial of a motion for summary judgment is reviewed for abuse of discretion. Id. at 559 . The Court noted further that a trial court may exercise its discretion to deny a motion for summary judgment even though there are no disputes of material fact and the moving party may be entitled to judgment as a matter of law.

Id. at 560 . The Court explained that it was “not persuaded” that the circuit court’s denial of Giant’s “technically sufficient motion for summary 3 Giant raised a third challenge, but that argument is not before this Court. 5 judgment in favor of a full hearing on the merits” constituted an abuse of discretion. Id. (quotations omitted).

As to its consideration of Giant’s argument regarding the motion for judgment, the Court set forth the following standard of review: When we review a trial court’s ruling on a motion for judgment, we ask: whether on the evidence adduced, viewed in the light most favorable to the non-moving party, any reasonable trier of fact could find the elements of the tort by a preponderance of the evidence. … If there is even a slight amount of evidence that would support a finding by the trier of fact in favor of the plaintiff, the motion for judgment should be denied. Id. at 560-61 (citation omitted) (alterations in original). The Court evaluated Giant’s contention that “there was insufficient evidence to support the existence of an employment relationship between Giant and [] Winzer and therefore no grounds for Giant to be vicariously liable for [] Winzer’s actions.” Id. at 561 (quotations omitted). The Court agreed, explaining that, because Winzer was an independent contractor (and not an employee) of Giant, Petitioner needed to show that Giant “had retained control over the operative detail and methods of [] Winzer’s work, including the very thing from which the injury arose.” Id. at 565-66 (quotations omitted) (emphasis removed).

The Court concluded that Petitioner failed to carry that burden: To the extent that Ms. Webb’s injury “arose” out of Mr. Winzer’s use of an unpowered pallet jack in his work, Giant’s control extended only to a prohibition against the use of powered jacks by any vendor. In sum, correcting a vendor observed using a pallet jack improperly, requiring a vendor to check in and out, to stock in a particular location of the store, permitting only non-powered jacks, and “sometimes” checking the vendor’s work – do not indicate sufficient control over the “methods” and “operative detail” of Mr. Winzer’s work to extend liability on Giant for his 6 actions. Rather than a right to supervise Mr. Winzer’s work, these are general rights that a possessor of the premises on which the work is being done would ordinarily retain for itself. For this reason, we hold, as a matter of law, that the evidence was insufficient to submit the vicarious liability claim to the jury, and that Giant’s motion for judgment should have been granted.

Id. at 566 (internal citation omitted) (emphasis in original). In addition, the Court held that, had it not reversed the circuit court’s judgment based on its evaluation of the denial of Giant’s motion for judgment, it would have reversed the judgment based on the spoilation instruction. Id. at 573 . The Court explained that the instruction was improper because there was “no direct evidence that a video of the incident actually existed or that it was destroyed or otherwise not preserved.” Id. at 571 .

The Court stated that the instruction was also prejudicial because “the jury was invited and permitted … to engage in speculation regarding concealment, destruction, and failure to preserve evidence that was not shown to actually exist.” Id. at 573 . Petitioner turned next to this Court. We granted certiorari, Webb v. Giant of Maryland, LLC, 474 Md. 633 (2021), to determine: whether the Court of Special Appeals applied the correct standard of review in evaluating the circuit court’s denial of Giant’s motion for judgment; whether the Court erred in reversing the circuit court’s judgment on the grounds that the circuit court denied erroneously Giant’s motion for judgment; and, whether the Court erred in holding that the circuit court committed reversible error in giving the spoliation instruction. 7 DISCUSSION I. The Parties’ Contentions Petitioner contends first that the Court of Special Appeals did not apply the correct standard of review in evaluating the circuit court’s denial of Giant’s motion for judgment. She argues that the Court “should have, but did not, apply an abuse of discretion standard in determining whether the trial court’s denial of the motion for judgment was proper.” Petitioner notes that the Court applied correctly the abuse of discretion standard in affirming the circuit court’s denial of Giant’s pre-trial motion for summary judgment, and should have applied the same standard to determine that the circuit court did not err in denying Giant’s motion for judgment.

She asserts that it was “illogical” for the Court to hold that the facts were sufficient to affirm the denial of Giant’s motion for summary judgment but were insufficient somehow to affirm the denial of Giant’s motion for judgment. Giant responds that the Court of Special Appeals applied the correct standard of review. It asserts that there was nothing “illogical” about the Court’s decision to affirm the denial of the motion for summary judgment but reverse the circuit court’s denial of the motion for judgment. Analysis Maryland Rule 2-501 states that, in reviewing a pre-trial motion for summary judgment, the court “shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that 8 the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-501(f). “With respect to the trial court’s grant of a motion for summary judgment, the standard of review is de novo.” Dashiell v. Meeks, 396 Md. 149, 163 (2006). “Only when there is an absence of a genuine dispute of material fact will the appellate court determine whether the trial court was correct as a matter of law.” Id.

A trial court does not have any discretionary power in granting a motion for summary judgment when there are no disputes of material fact. Id. at 164 . A trial court has, however, discretionary power “when affirmatively denying a motion for summary judgment or denying summary judgment in favor of a full hearing on the merits.” Id. This discretionary power “exists even though the technical requirements for the entry of such a judgment have been met.” Metro.

Mortg. Fund, Inc. v. Basiliko, 288 Md. 25, 28 (1980). That is, “no party is entitled to a summary judgment as a matter of law. It is within the discretion of the judge hearing the motion, if he finds no uncontroverted material facts, to grant summary judgment or to require a trial on the merits.” Foy v. Prudential Ins.

Co. of America, 316 Md. 418, 424 (1989). “Thus, on appeal, the standard of review for a denial of a motion for summary judgment is whether the trial judge abused his discretion and in the absence of such a showing, the decision of the trial judge will not be disturbed.” Dashiell, 396 Md. at 165 . As to a motion for judgment, Maryland Rule 2-519 states that “[a] party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all the evidence.” Md. Rule 2- 519(a). “[W]hen a defendant moves for judgment based on … the legal insufficiency of 9 the plaintiff’s evidence, the trial judge must determine if there is any evidence, no matter how slight, that is legally sufficient to generate a jury question[.]” Thomas v. Panco Mgmt. of Maryland, LLC, 423 Md. 387, 394 (2011) (citations and quotations omitted). “Where the defendant, in a jury trial for negligence, argues that plaintiffs’ evidence is insufficient to create a triable issue, the court determines whether any inference of negligence is permissible; that is, whether the evidence demonstrates that it is more probable than not that the defendant was negligent.” District of Columbia v. Singleton, 425 Md. 398, 407 (2012). “The court considers the evidence and reasonable inferences drawn from the evidence in the light most favorable to the non-moving party.” Sugarman v. Liles, 460 Md. 396, 413 (2018). “It is only when the facts and circumstances only permit one inference with regard to the issue presented, that the issue is one of law for the court and not one of fact for the jury.” Thomas, 423 Md. at 394 (citation and quotations omitted). “We review the trial court’s decision to grant or deny a motion for judgment in a civil case without deference.” Sugarman, 460 Md. at 413 . In so doing, “[w]e conduct the same analysis that [the] trial court should make when considering the motion for judgment.” Singleton, 425 Md. at 406-07 . In light of those legal principles, we hold that the analysis carried-out by the Court of Special Appeals was appropriate.

First, Petitioner is mistaken in claiming that the Court should have reviewed the circuit court’s decisions regarding Giant’s motion for judgment and its pre-trial motion for summary judgment under the same standard. As this Court’s caselaw makes clear, the standard of review for a summary judgment motion depends on how the trial court rules. If the trial court grants the motion, that is, if the court determines 10 that there are no genuine disputes as to any material fact and the moving party is entitled to summary judgment as a matter of law, an appellate court reviews that decision without deference. If, on the other hand, the trial court denies the motion, an appellate court reviews that decision for abuse of discretion.

When determining whether a trial court abused its discretion in denying a summary judgment motion, an appellate court should be mindful of the fact that the trial court has the discretionary power to deny the motion and require a trial on the merits “even though the technical requirements for the entry of such a judgment have been met.” Basiliko, 288 Md.