McCoy v. Target Corporation

Filing 22

ORDER Granting 18 Motion for Summary Judgment. Signed by Judge George Levi Russell, III on 3/3/2016. (nd2s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Chambers of
GEORGE L. RUSSELL, III
United States District Judge

101 West Lombard Street
Baltimore, Maryland 21201
410-962-4055

March 3, 2016

MEMORANDUM TO COUNSEL RE:

Lorenda McCoy v. Target Corporation
Civil Action No. GLR-14-3437

Dear Counsel:
Pending before the Court is Defendant’s, Target Corporation (“Target”), Motion for
Summary Judgment (ECF No. 18). The Court, having reviewed the Motion and the parties’ briefs,
finds no hearing necessary. See Local Rule 105.6 (D.Md. 2014). For the reasons that follow, the
Motion will be granted.
In September 2011, Plaintiff Lorenda McCoy entered a Target retail store in Glen Burnie,
Maryland. While walking down the pet aisle, McCoy slipped on a liquid substance that had
accumulated on the floor and fell. As a result of the incident, McCoy “sustained serious personal
injuries, resulting in medical and related expenses, lost wages and physical and emotional pain and
suffering.” (Compl. ¶ 7, ECF No. 2). McCoy seeks $1 million in compensatory damages.
McCoy initiated this action on September 12, 2014 by filing a Complaint in the Circuit Court
for Anne Arundel County, Maryland. (ECF No. 2). McCoy brings a single claim for negligence.
(Id.). On October 31, 2014, Target removed the matter to this Court based on diversity jurisdiction
(ECF No. 1) and filed its Answer (ECF No. 7). On August 14, 2015, Target filed a Motion for
Summary Judgment. (ECF No. 18). McCoy submitted an Opposition to the Motion (ECF No. 20)
on August 28, 2015, and Target filed a Reply (ECF No. 21) on September 14, 2015. Target’s
Motion is ripe for disposition.
Under Federal Rule of Civil Procedure 56(a), the Court must grant summary judgment if the
moving party demonstrates there is no genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law. In reviewing a motion for summary judgment, the Court
views the facts in a light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
Once a motion for summary judgment is properly made and supported, the nonmoving party
has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986). Rule 56(c) requires the nonmoving party to go beyond the
pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions
on file, designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). The nonmoving party “cannot create a genuine issue of material
fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769
F.2d 213, 214 (4th Cir. 1985) (citing Barwick v. Celotex Corp., 736 F.2d 946, 963 (4th Cir. 1984)).

“[T]he mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson, 477 U.S. at 247–48. A “material fact” is one that might
affect the outcome of a party’s case. Id. at 248; see also JKC Holding Co. v. Wash. Sports Ventures,
Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.
2001)). Whether a fact is considered to be “material” is determined by the substantive law, and
“[o]nly disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248; accord HoovenLewis, 249 F.3d at 265. A “genuine” issue concerning a “material” fact arises when the evidence is
sufficient to allow a reasonable jury to return a verdict in the nonmoving party’s favor. Anderson,
477 U.S. at 248.
A cause of action for negligence consists of four 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.” Warr v. JMGM Grp., LLC, 70 A.3d 347, 353 (Md. 2013) (quoting
Valentine v. On Target, Inc., 727 A.2d 947, 949 (Md. 1999)). “[T]he duty of care that is owed by the
owner of property to one who enters on the property depends upon the entrant’s legal status.” Rehn
v. Westfield Am., 837 A.2d 981, 984 (Md.Ct.Spec.App. 2003) (quoting Rivas v. Oxon Hill Joint
Venture, 744 A.2d 1076, 1081 (Md.Ct.Spec.App. 2000)). Business customers are classified as
“invitees,” and storekeepers owe them “a duty of ordinary care to keep the property safe.” Id.
(quoting Rivas, 744 A.2d at 1081).
“Storekeepers are not insurers of their [invitees’] safety, and no presumption of negligence
arises merely because an injury was sustained on a storekeeper’s premises.” Giant Food, Inc. v.
Mitchell, 640 A.2d 1134, 1135 (Md. 1994) (citing Rawls v. Hochschild, Kohn & Co., 113 A.2d 405,
408 (Md. 1955)). To prove that a storekeeper breached its duty of care to an invitee, the invitee has
the burden of demonstrating that the storekeeper had actual or constructive knowledge of the hazard
and gained that knowledge in sufficient time to remove it or warn the invitee. Zilichikhis v.
Montgomery Cty., 115 A.3d 685, 702 (Md.Ct.Spec.App. 2015) (quoting Joseph v. Bozzuto Mgmt.
Co., 918 A.2d 1230, 1235 (Md.Ct.Spec.App. 2007)), cert. denied, 120 A.3d 768 (Md. 2015). A
storekeeper does not have a duty to continuously inspect the premises and remove hazards
immediately after they arise. See Lexington Mkt. Auth. v. Zappala, 197 A.2d 147, 148 (Md. 1964).
To prove constructive knowledge in a slip-and-fall case, the invitee must present evidence
showing how long the hazard existed before the injury occurred—so-called “time on the floor”
evidence. Zilichikhis, 115 A.3d at 702 (quoting Joseph, 918 A.2d at 1236); see Zappala, 197 A.2d at
148 (entering judgment for parking garage operator because plaintiff offered no evidence of how
long oil or grease was on floor before slip-and-fall); Carter v. Shoppers Food Warehouse MD Corp.,
727 A.2d 958, 967 (Md.Ct.Spec.App. 1999) (affirming summary judgment because grocery patron
alleged that she tripped on upturned carpet but offered no evidence regarding “the length of time it
was turned up”).
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When the plaintiff presents no time on the floor evidence, she plaintiff cannot prove
constructive knowledge by introducing evidence that the defendant failed to conduct reasonable
inspections prior to the accident. Zilichikhis, 115 A.3d at 703, 709; Maans v. Giant of Md., L.L.C.,
871 A.2d 627, 634, 639 (Md.Ct.Spec.App. 2005). Rather, to prove constructive knowledge without
time on the floor evidence, the plaintiff must show that had the defendant made reasonable
inspections prior to the slip-and-fall, it would have discovered the hazard in time to prevent the
accident. Maans, 871 A.2d at 634. Otherwise, “the [defendant] would be potentially liable even
though there is no way of telling whether there was anything [the defendant] could have done that
would have avoided the injury.” Id. at 639.
Here, McCoy presents no evidence that Target created the hazard that McCoy allegedly
encountered. In fact, McCoy testified that she did not have any way of knowing how the liquid
substance got on the floor. (L. McCoy Dep. 72:21–73:2, Apr. 6, 2015, ECF No. 18-2). McCoy also
fails to present any evidence that a Target employee actually knew that there was a liquid substance
in the pet aisle before she slipped. Thus, McCoy must rely on constructive knowledge to prove
Target’s negligence.
Target contends that there is no genuine dispute as to constructive knowledge because
McCoy offers no time on the floor evidence.1 Consonant with the courts’ analysis in Zappala and
Maans, Target posits that “[i]t is possible that another customer could have created the hazardous
condition while passing through the aisle mere seconds before [McCoy’s] fall.” (Def.’s Mem. in
Supp. of its Mot. for Summ. J. at 7, ECF No. 18-1). In response, McCoy advances the ostensibly
novel argument that a jury can infer time on the floor from undisputed testimony that the wet spot on
McCoy’s pants following the incident was six to seven inches in diameter. (See B. McCoy Dep.
11:15–12:2, Apr. 6, 2015, ECF No. 18-2). This argument fails for several reasons. First, McCoy
cites no authority, and the Court finds none, for the proposition that time on the floor can be inferred
from circumstantial evidence. Second, “evidence regarding ‘the size or nature of the spill is not a
substitute for “time on the floor” evidence.’” Rybas v. Riverview Hotel Corp., 21 F.Supp.3d 548,
568 (D.Md. 2014) (quoting Saunders v. Wal–Mart Stores, Inc., No. JKS 09-2330, 2010 WL
1416542, at *4 (D.Md. Apr. 5, 2010)) (applying Maryland law). Third, the Court finds that
ascertaining the time the liquid substance was on the floor based on the size of the spot on McCoy’s
pants would require speculation, and “[u]nsupported speculation is insufficient to defeat a motion for
summary judgment.” Leakas v. Columbia Country Club, 831 F.Supp. 1231, 1235 (D.Md. 1993)
(citing Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)).
Though Rule 56(c) requires the nonmoving party to go beyond the pleadings to designate
specific facts showing that there is a genuine issue for trial, Catrett, 477 U.S. at 324, McCoy attaches
only one exhibit to her Opposition memorandum: an interrogatory response from Target. In this
response, Target states that a team member would have conducted a “Daily Walk” through the store
on the date of McCoy’s incident but “Target stores do not maintain sweep sheets or sweep logs for
1

In her deposition, McCoy testified that she had no way of knowing how long the liquid
substance existed before she slipped on it. (L. McCoy Dep. 72:18–20).
3

any interior or exterior locations other than the restrooms.” (Pl.’s Mem. of P. & A. in Supp. of Pl.’s
Opp’n to Def.’s Mot. for Summ. J. Ex. 1, at 3, ECF No. 20-1). Relying on this response, McCoy
asserts that summary judgment should be denied because Target offers no evidence of reasonable
inspections. McCoy provides no evidence, however, that had Target made reasonable inspections
prior to the incident, it would have discovered the liquid substance in time to prevent the incident.
This deficiency is fatal to McCoy’s case at the summary judgment stage. See Maans, 871 A.2d at
634, 639; Zilichikhis, 115 A.3d at 703, 709. Indeed, “[f]or all that was shown by [McCoy], the
[liquid substance] could have been spilled by a customer seconds before her fall.” Maans, 871 A.2d
at 634.
Thus, because McCoy presents no evidence showing how long the liquid substance was on
the floor before she slipped and no evidence that Target would have discovered it had Target
conducted reasonable inspections, the Court finds that there is no genuine dispute as to constructive
knowledge and Target is entitled to judgment as a matter of law. Accordingly, the Court will grant
Target’s Motion.
Based on the foregoing reasons, Target’s Motion for Summary Judgment is GRANTED.
Despite the informal nature of this memorandum, it shall constitute an Order of this Court, and the
Clerk is directed to docket it accordingly and CLOSE this case.
Very truly yours,
/s/
_______________________
George L. Russell, III
United States District Judge

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