Hurdle v. Ollie's Bargain Outlet, Inc.

Filing 31

MEMORANDUM OPINION. Signed by Magistrate Judge Timothy J. Sullivan on 5/20/2015. (nd2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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CAROLYN HURDLE,
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Plaintiff,
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v.

Case No. TJS-14-2088
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OLLIE’S BARGAIN OUTLET, INC.,
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Defendant.
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MEMORANDUM OPINION
Plaintiff Carolyn Hurdle (“Ms. Hurdle”) brought this action for negligence against
Defendant Ollie’s Bargain Outlet, Inc. (“Ollie’s”) seeking damages for injuries she suffered after
falling in an Ollie’s store in Hagerstown, Maryland. (ECF No. 1 ¶¶ 5-8.) The Motion for
Summary Judgment (“Motion”) (ECF No. 27) filed by Ollie’s is now pending before the Court.
Having considered the submissions of the parties (ECF Nos. 27, 28 & 29), I find that no hearing
is necessary. See Loc. R. 105.6. For the reasons set forth below, the Motion (ECF No. 27) is
GRANTED.
I.

BACKGROUND
According to the Complaint, Ms. Hurdle was walking down an aisle in the Ollie’s store

located in Hagerstown, Maryland on July 2, 2011. (ECF No. 1. ¶ 6.) She “slipped and fell when
she stepped in soapy liquid that had accumulated from leaking bottles onto the floor.” (Id.) The
“soap was clear or near clear” and Ms. Hurdle did not see it before she fell. (Id.) Ms. Hurdle
alleges that Ollie’s “knew, or through the exercise of ordinary care should have known, of the
existence of this dangerous condition and cleaned it or placed warnings to alert patrons of the
store to this latent danger.” (ECF No. 1 ¶ 7.) Ms. Hurdle seeks to recover damages from Ollie’s
based on its negligence. (Id. ¶ 8.)
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II.

STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to
current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any
genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing
the motion, then a genuine dispute of material fact is presented and summary judgment should be
denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere
existence of a scintilla of evidence in support of the [opposing party’s] position” is insufficient to
defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to be
drawn from the underlying facts, must be viewed in the light most favorable to the opposing
party. Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.
2008). A party may not rest upon the mere allegations or denials of its pleading but instead must,
by affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for
trial. Fed. R. Civ. P. 56(c)(1). Supporting and opposing affidavits are to be made on personal
knowledge, contain such facts as would be admissible in evidence, and show affirmatively the
competence of the affiant to testify to the matters stated in the affidavit. Fed. R. Civ. P. 56(c)(4).
III.

ANALYSIS
1.

Choice of Law

A court sitting in diversity must apply the choice of law rules of the state in which it sits.
Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941). Maryland adheres to the lex
loci delicti rule to determine the applicable law in tort actions. Philip Morris Inc. v. Angeletti,

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358 Md. 689, 744 (2000). Under this rule, the “substantive tort law of the state where the wrong
occurs governs.” Hauch v. Connor, 295 Md. 120, 123 (1983). Because the alleged tort took place
in Maryland, Maryland law governs Ms. Hurdle’s negligence claim.1
2.

Negligence Claim

To prevail on a claim of negligence in Maryland, a “plaintiff must [prove] the following
elements: ‘(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the
defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the
loss or injury proximately resulted from the defendant’s breach of the duty.’” Valentine v. On
Target, Inc., 353 Md. 544, 549 (1999) (quoting Lane, 338 Md. at 44). The parties’ arguments
focus on the second element: whether Ollie’s breached its duty to protect Ms. Hurdle from
injury.
In Maryland, the proprietor of a store owes a duty to an invitee2 “to exercise ordinary
care to keep the premises in a reasonably safe condition and will be liable for injuries sustained
in consequence of a failure to do so.” Maans v. Giant of Maryland, L.L.C., 161 Md. App. 620,
627 (2005) (quoting Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 117 (1955)). This duty,

1

In its submissions, Ollie’s applies rules taken from both the Federal Rules of Civil
Procedure and the Maryland Rules of Civil Procedure. (See ECF Nos. 27-1 at 2 ECF Nos. 27-1
at 2 29 at 1-3.) While Maryland’s substantive law governs the Court’s analysis of Ms. Hurdle’s
claims, the Court will not apply Maryland’s procedural law. See Rowland v. Patterson, 852 F.2d
108, 110 (4th Cir. 1988) (“Federal courts apply federal rules of procedure, both those
promulgated in the Federal Rules of Civil Procedure as well as wholly judge made procedural
rules, unless the Erie doctrine commands otherwise.”).
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In Maryland, the duty that a landowner owes to persons entering onto the land varies
according to the visitor’s status as an invitee (or business invitee), a licensee, a bare licensee, or a
trespasser. Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 44 (1995). An invitee is defined as
“one invited or permitted to enter another’s property for purposes related to the landowner’s
business.” Norris v. Ross Stores, Inc., 159 Md. App. 323, 334 (2004) (quoting Tennant v.
Shoppers Food Warehouse Md. Corp., 115 Md. App. 381, 387 (1997)). Both of the parties
characterize Ms. Hurdle as an invitee.
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however, does not arise unless the proprietor has “actual or constructive knowledge of [the
dangerous condition] . . . gained in sufficient time to give the owner the opportunity to remove it
or to warn the invitee.” Rehn v. Westfield Am., 153 Md. App. 586, 593 (2003) (internal quotation
omitted).
Ollie’s argues that there is no evidence that it had actual or constructive knowledge of
any dangerous condition with sufficient time to warn Ms. Hurdle or to remove the dangerous
condition. (ECF No. 27-1 at 3.) In addition, Ollie’s argues that Ms. Hurdle should be barred from
any recovery based on her own contributory negligence. (ECF No. 27-1 at 5.)
Ms. Hurdle concedes that she cannot prove that Ollie’s, acting through its store
associates, had actual notice of the dangerous condition of the liquid soap on the aisle floor.
(ECF No. 28 at 3.) At the same time, Ms. Hurdle does not argue that Ollie’s had constructive
notice of the dangerous condition. For example, she does not point to any evidence to show how
long the dangerous condition existed (“time on the floor”), including evidence of other customers
who had fallen in the aisle on the day of her fall, or whether the slippery spot showed any signs
of traffic (such as footsteps or grocery cart tracks) that would indicate the length of time it had
been present. Ms. Hurdle herself did not see the soapy substance before she fell, and admits that
she does not know how or when it got on the floor. (ECF No. 27-2 at 4.)
Ms. Hurdle’s principal argument is that the store policy in place at Ollie’s was inadequate
to comply with its duties to its invitees under Maryland law. (ECF No 28 at 3) (“[A]n inference
may be drawn that had Ollie’s repeated the inspection on a regular basis throughout the day, the
defect . . . would have been discovered.”). The store policy in place at Ollie’s requires employees
to conduct an inspection of the store’s premises, including its floors, “prior to the store opening.”
(ECF No. 28 at 3.) Ms. Hurdle a fell at approximately 1:30 p.m. on July 2, 2011, more than five

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hours after the inspection required by the store policy.3 Had Ollie’s “repeated the inspection on a
regular basis throughout the day,” Ms. Hurdle states, “the defect . . . would have been
discovered.” (Id.)
a.

The Mode-of-Operation Rule

This argument is similar to the “mode-of-operation” argument rejected in Maans v. Giant
of Maryland, LLC, 161 Md. App. 620, 637-39 (2005). Under the “mode-of-operation rule,”
which does not apply in Maryland, a business can be found liable for its negligence even without
actual or constructive notice of a dangerous condition, so long as the business could have
reasonably anticipated “that hazardous conditions would regularly arise.” Id. at 638. Here, Ms.
Hurdle seems to argue that because she cannot prove that Ollie’s had actual or constructive
notice of the slippery spot on the floor, she should still be able to recover based on Ollie’s failure
to inspect the floors in its store more frequently. (ECF No. 28 at 4) (“If the entirety of the store
was inspected at 1:00 p.m., it is likely that the presence of the soap would have been discovered
and this accident avoided.”). This very argument was rejected in Maans, and the Court rejects it
here for the same reasons. Maans, 161 Md. App. at 637-39.; see also Moulden v. Greenbelt
Consumer Servs., Inc., 239 Md. 229, 233 (1965) (“[I]t would be unreasonable to hold that [there
is a] duty to conduct a continuous inspection tour of the store.”)

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Ollie’s has submitted evidence that in addition to the inspection of the store performed
before the store opens each day, Ollie’s has a policy of requiring its associates to “walk the sales
floor” and “if they see something that needs to be addressed from a safety standpoint, they would
address it.” (ECF No. 29-1 at 2.) Because the evidence at this stage of the proceedings must be
viewed in the light most favorable to Ms. Hurdle, the Court assumes that this evidence is in
dispute. Whether Ollie’s actually inspected its store on the day in question, however, is not
material to the Court’s analysis in this case.
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b.

Constructive Notice

Having found that Maryland law does not impose a duty on Ollie’s to continuously
inspect the floors of its store for potential dangers, the Court now turns to the question of
whether Ollie’s had constructive notice of the dangerous condition in this case. “In an action by a
customer to recover damages from a fall in a store caused by a foreign substance on the floor or
stairway, the burden is on the customer to produce evidence that the storekeeper created the
dangerous condition or had actual or constructive knowledge of its existence.” Rawls v.
Hochschild, Kohn & Co., 207 Md. at 119. Here, the duty Ollie’s owes to its invitees is to keep its
property safe and to exercise reasonable care to protect them from injuries caused by
unreasonable risks. See e.g., Garner v. Supervalu, Inc., 396 Fed. App’x 27, 29 (4th Cir. 2010).
Ollie’s is not required to be an insurer of its invitees’ safety while in its store. Moulden v.
Greenbelt Consumer Services, Inc., 239 Md. 229, 232 (1965); see also Rawls, 207 Md. at 118
(noting that “no presumption of negligence on the part of the proprietor arises merely from a
showing that an injury was sustained in his store”).
There is no evidence of how long the soapy substance was on the floor of the Ollie’s
store before Ms. Hurdle slipped and fell, or of how it got there in the first place. This lack of
“time on the floor” evidence precludes a jury from finding that the soapy substance was present
on the floor long enough to provide Ollie’s with constructive notice of its presence. Without
notice of its presence, Ollie’s had no duty to take steps to protect Ms. Hurdle from the dangerous
condition. Because Ms. Hurdle cannot show that Ollie’s had notice—either actual or
constructive—of the dangerous condition, no reasonable jury could find that Ollie’s breached

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any duty owed to her, and thereby render a verdict in her favor. For these reasons, the Court
finds that summary judgment must be entered in favor of Ollie’s. The Motion is GRANTED.4
IV.

CONCLUSION
Ollie’s Motion for Summary Judgment is GRANTED. By separate Order, the Clerk of

Court will be directed to enter summary judgment in favor of Ollie’s and to close this case.

May 20, 2015
Date

/s/
Timothy J. Sullivan
United States Magistrate Judge

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For the reasons set forth in the Memorandum Opinion, the Court does not reach the
issue of whether Ms. Hurdle’s alleged contributory negligence is a complete bar to her recovery.
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