Zilichikhis v. Montgomery County

ARTHUR, J. Appellant Rafail Zilichikhis slipped and fell inside a parking garage owned and operated by Montgomery County. He and his wife brought an action against the County and the private companies that operate or maintain the garage. The Circuit Court for Montgomery County granted summary judgment on the grounds that the Zilichikhises had produced no admissible evidence that any of the defendants had the requisite actual or constructive knowledge of the slip-and-fall hazard and that the ¹⁶⁴ County enjoyed governmental immunity with respect to its operation of the garage. We affirm.

Factual and Procedural Background A. Slip and Fall Inside Garage 49 Dr. Rafail Zilichikhis and Mrs. Lubov Zilichikhis reside at the Metropolitan Apartments at 7620 Old Georgetown Road in Bethesda. A public parking facility known as Garage 49 or the Metropolitan Garage is located at the same address, underneath the apartment building. Montgomery County owns and operates the garage as part of the Bethesda Parking Lot District. On the evening of June 21, 2011, Dr. Zilichikhis, who was 82 years old at the time, parked his car in a handicapped parking spot near elevators on the ground level of Garage 49.

He planned to drive his wife to a medical appointment the next morning. Some time before 10:00 a.m. on June 22, 2011, Dr. Zilichikhis walked across the street to purchase a newspaper. He then returned to the garage and walked toward his vehicle. A short distance away from his parked car, Dr. Zilichikhis slipped and fell onto the concrete surface.

On the ground, he noticed a wet and greasy substance that he had not previously seen. When he tried to stand up, he slipped and fell a second time. After crawling out of the area, he was able to stand up and make his way to his vehicle. A few minutes later, Mrs. Zilichikhis arrived at the passenger side of the vehicle, walking from a different direction.

Dr. Zilichikhis informed his wife that he had fallen and injured himself on a slippery surface, in the area between the front driver’s side of the vehicle and a nearby railing. She noticed that his knee was slightly bloody. The Zilichikhises drove away and attended Mrs. Zilichikhis’s scheduled appointment. Afterwards, they drove to the nearby residence of their daughter, Alona Bauer.

Dr. Zilichikhis soon began to complain of a severe headache. He was taken to a hospital for emergency treatment, referred to a neurologist, and diagnosed with a subdural hematoma that required imme- ¹⁶⁵ díate surgery. Dr. Zilichikhis continues to suffer various impairments as a result of his traumatic brain injury. The Zilichikhises’ other daughter, Irina Lotvin, is also a resident of the Metropolitan Apartments.

Ms. Lotvin returned to the garage after her father’s surgery on the evening of June 22, 2011. She inspected an area that she believed to be the area in which her father fell. Additional photographs of that same location were taken in July and August of 2011 by Ms. Bauer and by an attorney for the Zilichikhises. B. Complaint for Negligence and Loss of Consortium In December 2011, Dr. Zilichikhis gave notice of a potential tort claim to the County Executive for Montgomery County.

See Md. Code (1974, 2006 Repl. Vol.), § 5-304 of the Courts and Judicial Proceedings Article. On September 10, 2012, Dr. Zilichikhis and Mrs. Zilichikhis filed a complaint in the Circuit Court for Montgomery County. The complaint asserted claims against a number of defendants: Montgomery County, the owner of the garage; the Montgomery County Department of Transportation, an agency charged with administering the parking district; Penn Parking, Inc., the management company for the garage; and Colossal Contractors, Inc., a company that performs cleaning services for the garage through a contract with the County.

The complaint asserted that Dr. Zilichikhis was entitled to recover for his injuries and that Mrs. Zilichikhis was entitled to recover for loss of consortium. 1 Each of the defendants filed an answer denying liability. The County raised the affirmative defense of governmental immunity and asserted that the County lacked any actual or ¹⁶⁶ constructive knowledge of the dangerous condition. 2 Colossal Contractors asserted, among other things, that it did not have any “reasonable notice” or any “opportunity to cure or warn” of the condition that allegedly caused the slip and fall. In addition to answering the complaint, Colossal Contractors filed cross-claims against the County, the Department of Transportation, and Penn Parking, seeking indemnity and contribution, as well as attorney’s fees and costs. Penn Parking responded by filing its own cross-claim, seeking indemnity and contribution from Colossal Contractors.

C. Motions for Summary Judgment After extensive discovery, the County filed a motion to dismiss and for summary judgment on December 4, 2013. The County argued that the court should dismiss the claims against the Montgomery County Department of Transportation because the Department did not have the capacity to be sued. The County also argued that there was no factual dispute that it operated the garage in a governmental capacity and thus that it was immune from liability. See Bagheri v. Montgomery Cnty., 180 Md.App. 93 , 949 A.2d 1 , cert. denied, 406 Md. 112 , 956 A.2d 201 (2008).

The County further argued that the Zilichikhises had no evidence that it had the requisite actual or constructive knowledge of the dangerous condition in time to remedy the condition before Dr. Zilichikhis’s fall. See, e.g., Joseph v. Bozzuto Mgmt. Co., 173 Md.App. 305, 315 , 918 A.2d 1230 (2007) (quoting Rehn v. Westfield America, 153 Md.App. 586, 593 , 837 A.2d 981 (2003), cert. denied, 380 Md. 619 , 846 A.2d 402 (2004)) (to sustain a cause of action in a premises liability case, the plaintiff “must prove not only that a dangerous condition existed but also that the [defendants] ‘had actual or constructive knowledge of the dangerous condition and that ¹⁶⁷ the knowledge was gained in sufficient time to give [them] the opportunity to remove it or to warn the [plaintiff]’ ”). Soon thereafter, Colossal Contractors and Penn Parking also moved for summary judgment on the ground that those defendants had no actual or constructive knowledge of the hazard.

Collectively, the defendants argued that the Zilichikhises had no evidence that the motor oil spill existed for any period of time sufficient for the defendants to protect Dr. Zilichikhis or to warn him of the danger. The defendants pointed out that Dr. Zilichikhis did not see any oil in the area when he parked his car the previous evening. They emphasized that Dr. Zilichikhis had touched and smelled the oil after his fall, and he described it as “fresh.” 3 They further contended that there was no evidence that any of the defendants created the motor oil spill or actually knew of its existence. D. Opposition to Summary Judgment On December 27, 2013, the Zilichikhises responded to each of the defendants’ motions.

The Zilichikhises argued that they had established factual disputes as to whether the defendants knew or should have known of the hazardous condition. They relied upon affidavits from Ms. Lotvin and another resident, which stated that before June 2011 Garage 49 was always dirty and that the parking surface was often slippery. They also relied upon deposition testimony from Mrs. Zilichik-his, in which she stated that she had complained to Penn Parking attendants about the general condition of the garage before the accident. In addition, the Zilichikhises pointed to communications from County representatives after the accident, which indicated that the County was aware of problems with grease and water infiltration in the garage (though not at the specific site where Dr. Zilichikhis fell). ¹⁶⁸ Central to the Zilichikhises’ opposition to summary judgment was their argument that the defendants “need not have knowledge of the specific oil spot on which [Dr.] Zilichikhis fell,” but rather that the defendants “need only be on notice of the dangerous condition in general.” But see Maans v. Giant of Maryland, L.L.C., 161 Md.App. 620, 637-40 , 871 A.2d 627 , cert. denied, 388 Md. 98 , 879 A.2d 43 (2005) (rejecting the proposition that a plaintiff need not prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise because of the manner in which the owner or occupier regularly does business).

The Zilichikhises argued that each of the defendants should have known about recurring spills that frequently created slippery conditions, but that the defendants did nothing to remedy that problem. The Zilichikhises also contended that there were unresolved factual issues material to the County’s defense of governmental immunity. They argued that the County could not assert governmental immunity because they had adduced evidence that the parking garage was used as a “walkway, footway, or public way.” See Higgins v. City of Rockville, 86 Md.App. 670, 679 , 587 A.2d 1168 , cert. denied, 323 Md. 309 , 593 A.2d 669 (1991) (“a municipality has a ‘private proprietary obligation’ to maintain its streets, as well as the sidewalks, footways and the areas contiguous to them, in a reasonably safe condition”). The Zilichikhises submitted affidavits from two residents of the Metropolitan Apartments, who stated that they frequently or occasionally walked through the parking garage because the garage served as a convenient route to exit the apartment building, and that they had never been asked to stop walking through the garage.

The Zilichikhises’ memorandum suggested that Dr. Zilichik-his was no longer a reliable witness. They characterized his deposition testimony as “jumbled, confusing, and unreliable in some regards due to his injuries, his inability to hear properly, and because of [] translation from English to [his native] Russian.” ¹⁶⁹ E. Supplemental Response and Accompanying Affidavits On February 7, 2014, just six days before a scheduled hearing on the summary judgment motions, the Zilichikhises filed supplemental responses in opposition to the defendants’ motions. Among other things, the Zilichikhises submitted a set of undated photographs accompanied by two affidavits. The photographs depicted several dark stains on a concrete surface, extending across a parking space and a walkway that was painted with yellow lines, near a set of steps and a ramp set off by handrails.

A new affidavit from Ms. Lotvin stated: In the evening on June 22, 2011,1 visited the area where my father fell and took several pictures, copies of which are appended.... The photographs were taken approximately eight hours after my father fell. The photographs are true and accurate copies of the photographs I took on June 22, 2011. They fairly and accurately depict the scene of my father’s fall at the time the photographs were taken....

Ms. Lotvin’s affidavit did not disclose any basis to conclude that she had personal knowledge that the photographs depicted the actual location where her father had fallen. Nor did the affidavit disclose any basis to conclude that she had personal knowledge of the condition at that location at the time her father fell eight hours before. The second new affidavit came from Dennis R. Andrews, Ph.D., safety engineer who had previously offered an expert opinion that Dr. Zilichikhis would not have been injured if the parking garage surface had been maintained properly. Dr. Andrews offered a number of opinions based on his review of the photographs taken by Ms. Lotvin, including the following opinion: The size, shape, nature, condition, and location of the motor oil, and the similar conditions located nearby in the photographs, indicate that the hazard has been present in that ¹⁷⁰ area for a significant period of time, very likely longer than 36-48 hours.

The size, shape, nature, condition, and location of the motor oil, particularly given its close proximity to a set of stairs and handicapped parking spaces, indicate that the hazard would have and should have been recognized on any routine inspection or walk-through of the garage. The County filed a reply on February 10, 2014. The County argued that, notwithstanding the submissions in the supplemental opposition, the Zilichikhises still had no competent evidence that the County had constructive knowledge of the oil spill. The County pointed out that Dr. Zilichikhis himself never testified that the newly-disclosed photographs depicted the condition of the garage at the time of his fall.

The County also argued that Dr. Andrews’s expert opinion on the duration of the spill was “inherently untrustworthy, speculative, and therefore, inadmissible.” F. Circuit Court’s Summary Judgment Ruling After being rescheduled because of a blizzard, the summary judgment hearing was held on February 26, 2014. In an oral ruling, the court granted each of the defendants’ motions. The court concluded, first, that the Zilichikhises had no evidence that the hazardous condition existed for any significant period of time before the fall. The court reasoned that, without any such evidence, the Zilichikhises could not prove that the defendants had notice of the hazard.

The court rejected any arguments based on the newly-disclosed photographs, because the Zilichikhises had laid no foundation to show that the photographs depicted the actual site of the fall. The court observed that Dr. Zilichikhis had testified at his deposition that he fell in a parking space, not in the pedestrian walkway with yellow, painted lines that was depicted in the photographs. The court also observed that Mrs. Zilichikhis, in her deposition, had testified that her husband had said that he fell in a parking space, not in a walkway with painted lines. In view of that testimony, the ¹⁷¹ court asserted, “There is not even any evidence that this oil spot is the spot that we’re talking about.” Consequently, the court reasoned that the Zilichikhises had not adduced a sufficient basis to admit the expert opinion based on those photographs. 4 Turning to the issues that pertained specifically to the County, the circuit court concluded that the County was immune because it operated the garage in a governmental rather than a proprietary capacity.

The court rejected the Zilichikhises’ argument that Dr. Zilichikhis fell in a public walkway where governmental immunity did not apply, because the deposition testimony established only that Dr. Zilichikhis slipped and fell in a parking space. 5 On March 4, 2014, the court entered orders granting summary judgment in favor of the County, Penn Parking, and Colossal Contractors. Although the grant of summary judgment eliminated any grounds for the cross-claims that Penn Parking and Colossal Contractors had asserted, the court did not formally dispose of those claims. After the court denied the Zilichikhises’ motion for reconsideration, the Zilichikhises filed a timely notice of appeal. Finality and Appealability By statute, a party generally may appeal only from a final judgment entered in a civil case.

See Md. Code (1974, 2013 Repl. Vol.), § 12-301 of the Courts and Judicial Proceedings Article. One of the necessary elements of a final judgment is that the order must adjudicate or complete the adjudication of all claims against all parties. See, e.g., Water- ¹⁷² keeper Alliance, Inc. v. Maryland Dep’t of Agric., 439 Md. 262, 278 , 96 A.3d 105 (2014) (quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 41 , 566 A.2d 767 (1989)).

Because the absence of a final judgment may deprive a court of appellate jurisdiction, we can raise the issue of finality on our own motion. See Waterkeeper, 439 Md. at 276 n. 11, 96 A.3d 105 . An order that adjudicates the rights of fewer than all of the parties, including rights under cross-claims or third-party claims, is not an appealable final judgment. See Md. Rule 2—602(a); see also Estep v. Georgetown Leather Design, 320 Md. 277, 286-87 , 577 A.2d 78 (1990) (dismissing appeal where court had decided plaintiffs claims against defendant, but had not decided defendant’s third-party claim against third-party defendant).

If the court has not adjudicated a defendant’s cross-claims or third-party claims, the judgment is not final, and is not appealable, even if those claims have become “groundless” because of the entry of judgment against the plaintiff. Estep, 320 Md. at 286 , 577 A.2d 78 . Until the circuit court has properly disposed of all claims “in existence” in the case, it has not entered a final, appealable judgment. See id. at 287 , 577 A.2d 78 . 6 Nonetheless, in one narrow exception to the final judgment rule, a court may direct “the entry of a final judgment ... as to one or more but fewer than all of the claims or parties” if it “expressly determines in a written order that there is no just reason for delay.” Md. Rule 2-602(b).

Similarly, if a party has filed a notice of appeal before the entry of final judgment, but the trial court would have had discretion to enter a judgment under Rule 2-602(b), this Court may have discretion to enter a final judgment on its own initiative. See Md. Rule 8-602(e)(l)(C). 7 ¹⁷³ In the instant case, the court did not enter an appealable final judgment, because it never formally adjudicated the cross-claims that Colossal Contractors and Penn Parking had asserted. See Estep, 320 Md. at 286-87 , 577 A.2d 78 . Nevertheless, had any of the parties requested the entry of judgment under Rule 2-602(b), the circuit court could reasonably have concluded that it had no just reason to delay the entry of a final judgment as to the Zilichikhises alone—i.e., that it had no just reason to delay the entry of final judgment “as to one or more but fewer than all of the ... parties.” Md. Rule 2-602(b)(1).

Otherwise, the appeal could not proceed until Penn Parking and Colossal Contractors had somehow resolved their cross-claims, which would be difficult for them to do without prejudicing their rights. For example, if Penn Parking and Colossal Contractors had attempted to resolve the cross-claims by dismissing them with prejudice, they risked losing the ability to reassert the cross-claims against one another in case an appellate court reversed the entry of summary judgment against the Zilichikhises on appeal. On the other hand, if Penn Parking and Colossal Contractors had attempted to resolve the cross-claims by dismissing them without prejudice, with the express or implicit understanding that they could reassert the cross-claims if an appellate court reversed the entry of summary judgment against the Zilichikhises, they might leave themselves open to an argument that the appeal should be dismissed because they had improperly circumvented the final judgment rule. See Miller & Smith at Quercus, LLC v. Casey PMN, LLC, 412 Md. 230, 252-53 , 987 A.2d 1 (2010).

Furthermore, if the cross- ¹⁷⁴ claims included contractual claims for indemnification of defense costs as well as damages, it might be impossible to liquidate the claims and to quantify the full extent of a party’s liability until the appeal had been concluded. Indeed, if the appellate court had reversed the entry of summary judgment, it might be impossible to liquidate those cross-claims until after further proceedings had occurred on remand and on a subsequent appeal. In analogous circumstances, where the circuit court entered summary judgment against the plaintiff, but did not dispose of a third-party claim against a third-party defendant, the Court of Appeals exercised its discretion under Rule 8—602(e)(1)(C) to entertain the appeal. See Shofer v. Stuart Hack Co., 324 Md. 92, 98 , 595 A.2d 1078 (1991); see also Berckeley Inv.

Group, Ltd. v. Colkitt, 455 F.3d 195 , 204 (3d Cir.2006) (holding, under analogous federal rule, that district court did not abuse discretion in certifying summary judgment order as partial final judgment, where there were unresolved claims, including cross-claim for indemnity, and appellate determination on underlying action could moot “derivative” indemnity claim). Here, too, because the circuit court could have exercised its discretion under Rule 2-602(b) to enter a final judgment as to the Zilichikhises, we hereby enter a final judgment as to the Zilichikhises, but not as to the unadjudicat-ed cross-claims asserted by Colossal Contractors and Penn Parking. See Shofer, 324 Md. at 98 , 595 A.2d 1078 . Questions Presented The Zilichikhises contend that the circuit court made a number of errors in granting summary judgment.

Their brief raises several issues and sub-issues, which we have consolidated and restated in this form: I. Did the circuit court err in determining that it was undisputed that Dr. Zilichikhis’s fall occurred in a parking space, rather than a pedestrian walkway?

II

Did the circuit court err in ruling that certain photographs and an expert opinion based on those photographs were not admissible? ¹⁷⁵ III. Did the circuit court err in concluding that the Zili-chikhises produced no evidence sufficient to show that the defendants had constructive knowledge of the slip- and-fall hazard?

IV

Did the circuit court err in concluding that Montgomery County possessed governmental immunity with respect to the parking garage? 8 As explained in this opinion, the court did not err. The Zilichikhises attempt to generate factual disputes by relying on submissions that the circuit court, for various reasons, could not have considered as part of the summary judgment ruling: interrogatory answers that were not made under oath on the basis of the personal knowledge of a competent witness, photographs of a location that was never identified by a witness with personal knowledge of the specific site of the accident, an expert opinion based on those photographs, and one page from a Montgomery County budget document that was first submitted to the court on reconsideration. None of these submissions were sufficient to generate a genuine dispute of material fact on the issues of constructive knowledge and governmental immunity. ¹⁷⁶ Discussion When a party moves 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 the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-501(f). The issue of whether a trial court properly granted summary judgment is a question of law.

Butler v. S & S P’ship, 435 Md. 635, 665 , 80 A.3d 298 (2013) (citation omitted). In an appeal from the grant of summary judgment, this Court conducts a de novo review to determine whether the circuit court’s conclusions were legally correct. See D’Aoust v. Diamond, 424 Md. 549, 574 , 36 A.3d 941 (2012). The relevant inquiry is well known: When reviewing a grant of summary judgment, we determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law.

This Court considers the record in the light most favorable to the nonmoving party and construe[s] any reasonable inferences that may be drawn from the facts against the moving party. A plaintiffs claim must be supported by more than a scintilla of evidence[,] as there must be evidence upon which [a] jury could reasonably find for the plaintiff. Blackburn Ltd. P’ship v. Paul, 438 Md. 100, 107-08 , 90 A.3d 464 (2014) (citations and quotation marks omitted). “Before turning to the questions of law, we must first decide whether the [circuit [cjourt properly determined that no genuine dispute of material fact exists.” O’Connor v. Baltimore Cnty., 382 Md. 102, 110-11 , 854 A.2d 1191 (2004). In this appeal, the Zilichikhises assert that the record reflects factual disputes regarding the location of the accident, whether the oil spill existed for a significant period of time before the accident, and whether the County generates profit from the operation of the garage.

In considering each of these arguments, we are mindful of the requirement that, “[t]o ¹⁷⁷ properly oppose a motion for summary judgment, the facts presented must not only be detailed but also admissible in evidence.” O’Connor, 382 Md. at 111 , 854 A.2d 1191 (citing Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993)); see Hamilton v. Kirson, 439 Md. 501 , 521 n. 11, 96 A.3d 714 (2014) (“ ‘in order to pass muster at a summary judgment proceeding, the opponent must produce evidence that would be admissible at trial’ ”) (citation omitted). I. Absence of Factual Dispute Regarding Location of Accident The Zilichikhises’ first contention is that the court improperly resolved a disputed factual issue when “the trial court found that Dr. Zilichikhis fell in a parking spot, as opposed to on a walking path within the garage.” This purported “dispute” centers on conflicting descriptions of the accident that the Zilichikhises provided at different times. The Zilichikhises argue that the court erred by accepting their deposition testimony that Dr. Zilichikhis fell in a parking spot, because an interrogatory answer indicated that his fall occurred on a painted walkway adjacent to a parking spot. 9 In the Zilichikhises’ view, the location of the motor oil spill was material both to the defendants’ constructive knowledge of the hazard and the County’s governmental immunity. They theorize that, from the mere existence of an oil spill within a walkway, the jury could infer that patrons would have reported it immediately.

They also theorize that the County enjoys no immunity for the maintenance of pedestrian walkways through a public garage. Their arguments fail because they had no admissible evidence that Dr. Zilichikhis fell anywhere other than in a parking spot. ¹⁷⁸ At his deposition, Dr. Zilichikhis testified that he was “relatively close” to his car, about “ten meters” from the vehicle, when he fell in the parking garage. When asked whether he was walking in a parking spot when he fell, Dr. Zilichikhis answered, yes. He added that his wife arrived five minutes later, but he could not remember whether he showed her the area where he fell.

In her deposition, Mrs. Zilichikhis testified that, when she arrived at the car, her husband pointed to the area in which he had fallen, between a railing and the driver’s side door of the car. When asked whether her husband told her that “he fell in the parking space,” she too answered in the affirmative. Mrs. Zilichikhis specifically denied that the area “had hatched painted lines on the floor of the garage” like those that appear in the photographs that her daughter later took. 10 Nearly six months before those depositions, the Zilichikhis-es submitted answers to interrogatories from Colossal Contractors. One interrogatory asked Dr. Zilichikhis to provide a concise statement of the slip-and-fall incident.

The answer included this statement: Plaintiff utilized the designated walking paths (which are bounded by support railings) from the elevators towards his vehicle. When Plaintiff reached the opening in the support railings, he stepped onto the parking surface to walk the few feet to the driver’s side front door of his vehicle, which was parked directly adjacent to a walking path which was painted with yellow diagonal lines. As Plaintiff approached the driver’s side front door of his vehicle on the walking path, he slipped on a wet, greasy substance (later determined to be both water and motor oil) he had not seen and of which he was unaware.... ¹⁷⁹ The Zilichikhises now argue that this interrogatory answer provides a basis to conclude that Dr. Zilichikhis fell on a walking path. They contend that the court was required to consider the answers to interrogatories as part of the record, because Colossal Contractors attached the interrogatory answers to its motion.

For several reasons, we conclude that these answers were defective and, consequently, insufficient to create any genuine dispute of material fact. In determining the existence of a factual dispute, “[i]nitially, we need to determine the record that may properly be considered on this summary judgment motion.” Imbraguglio v. Great Atl. & Pac. Tea Co., Inc., 358 Md. 194, 201 , 747 A.2d 662 (2000). Maryland Rule 2-501 sets forth certain requirements for a party’s response to a summary judgment motion: (b) Response.

A response to a written motion for summary judgment shall be in writing and shall (1) identify with particularity each material fact as to which it is contended that there is a genuine dispute and (2) as to each such fact, identify and attach the relevant portion of the specific document, discovery response, transcript of testimony (by page and line), or other statement under oath that demonstrates the dispute. A response asserting the existence of a material fact or controverting any fact contained in the record shall be supported by an affidavit or other written statement under oath. (c) Form of Affidavit. An affidavit supporting or opposing a motion for summary judgment shall be made upon personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.

The party opposing the motion for summary judgment must demonstrate the existence of a genuine dispute as to a material fact “ ‘by producing factual assertions, under oath, based on the personal knowledge of the one swearing out an affidavit, giving a deposition, or answering interrogatories.’ ” Reiter v. ACandS, Inc., 179 Md.App. 645, 660 , 947 A.2d 570 (2008), aff'd sub nom. Reiter v. Pneumo Abex, LLC, 417 ¹⁸⁰ Md. 57, 8 A.3d 725 (2010) (quoting Miller v. Ratner, 114 Md.App. 18, 27 , 688 A.2d 976 (1997)) (emphasis from Miller). For this reason, a party’s interrogatory answers are insufficient to generate a genuine issue of fact if those answers are “made ‘to the best of [the witness’s] information, knowledge and belief,’ rather than on the basis of personal knowledge.” 104 W. Washington St. II Corp. v. City of Hagerstown, 173 Md.App. 553, 573 , 920 A.2d 482 (2007) (citing Fletcher v. Flournoy, 198 Md. 53, 58 , 81 A.2d 232 (1951)); see also Lowman v. Consol. Rail Corp., 68 Md.App. 64, 73-74 , 509 A.2d 1239 (1986).

The interrogatory answers at issue were accompanied by the following affirmation: I hereby affirm under the penalties of perjury that the facts contained in the foregoing responses are true and accurate to the best of my knowledge, information and belief. /signature[ 11 ] RAFAIL ZILICHIKHIS By: Lubov Zilichikhis, Power of Attorney On its face, this affirmation, on “knowledge, information and belief,” does not generate a genuine issue of fact. 104 W. Washington St., 173 Md.App. at 573, 920 A.2d 482 . One interrogatory did ask that Dr. Zilichikhis provide the names of anyone with “personal knowledge regarding the subject matter of any of the facts of allegations.” The answer stated: “Plaintiff, Rafail Zilichikhis, whose knowledge is disclosed throughout these responses.” Still, even if we generously construe the answer describing the fall as a statement based on Dr. Zilichikhis’s personal knowledge (rather than on his “knowledge, information, and belief,” as indicated by the affirmation at the end of the document), the fact remains that Dr. Zilichikhis himself did not affirm that his answers were true. The signature line indicates that Mrs. Zilichikhis signed the affirmation on his behalf, acting through a power of attorney. Because Dr. Zilichikhis did not personally affirm ¹⁸¹ the accuracy of his answers, the document is not sufficient to generate any genuine issues of material fact.

See Cottman v. Cottman, 56 Md.App. 413, 430 , 468 A.2d 131 (1983) (holding that factual assertions contained in answers to interrogatories did not create genuine issues of fact, because the answers were made by party’s attorney without party herself swearing to the accuracy of the statements). In addition, to defeat a properly-supported motion for summary judgment, a sworn written statement should include language to verify that the witness is competent to testify. See Halliday v. Sturm, Ruger & Co., Inc., 138 Md.App. 136, 153 , 770 A.2d 1072 (2001), aff'd, 368 Md. 186 , 792 A.2d 1145 (2002); see also Webb v. Joyce Real Estate, Inc., 108 Md.App. 512, 520 , 672 A.2d 660 (1996) (quoting A.J. Decoster Co. v. Westinghouse Elec. Corp., 333 Md. 245, 263 , 634 A.2d 1330 (1994)); see also Reeves v. Howar, 244 Md. 83, 89 , 222 A.2d 697 (1966) (holding that affidavit was insufficient to defeat summary judgment where affiant averred that he was “confident,” rather than “competent,” to testify).

Here, however, the interrogatory answers included no affirmative statement that Dr. Zilichikhis was competent to testify to the facts described in the answers. If anything, the document indicated that Dr. Zilichikhis was not competent to testify, because Mrs. Zilichikhis signed the statement for him, purportedly under her power of attorney. Indeed, the Zilichikhises created even graver doubts about Dr. Zilichikhis’s competence at the hearing, by referring to his “diminished capacity” and submitting that “he is not competent to testify always” and no longer “competent to testify as to [certain] things.” 12 In sum, the answers to interrogatories did not affirmatively show that Dr. Zilichikhis made the statements under oath on the basis of personal knowledge or that he was competent to ¹⁸² testify to those matters. Without compliance with those basic evidentiary rules, the Zilichikhises could not establish that, if called as a witness at trial, Dr. Zilichikhis would testify to the same facts set forth in the interrogatory answers.

See Imbra-guglio, 358 Md. at 207 , 747 A.2d 662 . Moreover, Mrs. Zilichik-his cannot affirm that the answers accurately reflect her husband’s personal knowledge any more than she could testify in court as to what her husband personally observed. In these circumstances, the circuit court did not err when it disregarded the interrogatory answers in its summary judgment ruling. The only remaining evidence regarding the location of the accident, the sworn deposition from Dr. Zilichikhis and Mrs. Zilichikhis, established without contradiction that the fall occurred in a parking space within the garage.

In the absence of any competent evidence to the contrary, the court was correct when it stated that it was “undisputed that [Dr. Zilichikhis] walked across a parking space” when he fell.

II

Inadmissibility of Photographs and Expert Opinion Testimony As previously stated, in supplemental responses in opposition to summary judgment, the Zilichikhises submitted a set of photographs that depicted several dark stains on a concrete surface of a garage. In an accompanying affidavit, Ms. Lotvin, one of the Zilichikhises’ daughters, stated that she took the photographs on the evening of June 22, 2011, when she “visited the area where [her] father fell ... approximately eight hours after [her] father fell.” Although she did not disclose how she had acquired personal knowledge of the precise location where her father fell or of how it looked at the time of the fall, Ms. Lotvin asserted that the photographs “fairly and accurately depict the scene of [her] father’s fall at the time the photographs were taken.” Based on his review of the photographs, the Zilichikhises’ expert submitted an affidavit stating that the stains were from motor oil that had been on the floor “for a significant period of time, very likely longer than 36-48 hours[.]” ¹⁸³ In this appeal, the Zilichikhises contend that these submissions are evidence that the motor oil spill was present in the garage for about 28 to 40 hours before it caused Dr. Zilichik-his to slip and fall. They further argue that the court improperly resolved factual issues when it “offered its own critique of the photographs.” The Zilichikhises, however, have failed to address a litany of comments made by the trial court regarding the lack of foundation for admission the photographs. At the hearing, the court asked the Zilichikhises’ attorney to point out “in any deposition where any witness identified any of these [photographs].” Counsel responded that the photographs had not been “available” during the depositions even though they purportedly had been taken by Ms. Lotvin on the evening of the accident.

The court ultimately reasoned that Dr. Ziliehikhis was “the only one [who] can [identify the spot] under the facts and circumstances of this case.” Colossal Contractors contends that the photographs were inadmissible because the Zilichikhises had no testimony to establish that the area depicted in the photographs was actually the site of the accident. Colossal Contractors argues: “Ms. Lotvin’s testimony that these photographs fairly and accurately show the condition of the