Delaney v. United States of America

Filing 10

MEMORANDUM. Signed by Judge William M Nickerson on 9/15/2015. (nd2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

QUEST DELANEY
v.
UNITED STATES OF AMERICA

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Civil Action No. WMN-15-867

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MEMORANDUM
Before the Court is Defendant’s Motion to Dismiss, or in
the alternative, for Summary Judgment.
is ripe.

ECF No. 6.

The motion

Upon a review of the motion and applicable case law,

the Court determines no hearing is necessary, Local Rule 105.6,
and Defendant’s motion will be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Quest Delaney brings this action against
Defendant, United States of America, under the Federal Tort
Claims Act, 28 U.S.C. § 2671, et seq. and 28 U.S.C. §
1346(b)(1), asserting negligence on the part of the United
States, through its agency, the United States General Services
Administration.

Defendant moves to dismiss, or in the

alternative, for summary judgment, on two grounds.

Defendant

denies primary negligence, arguing the defect in the General
Services Administration (GSA) building that caused Plaintiff’s
injury was open and obvious.

In the alternative, Defendant

claims Plaintiff was contributorily negligent with respect to
his injury.
Plaintiff worked for Coastal International Security,
providing security services to a federal facility maintained by
GSA.

Plaintiff was assigned to Guard Post 11 in January 2012.

On February 8, 2012, Plaintiff submitted a handwritten letter
regarding “improving post 11 booth for safety/improvement” to
Captain Saunders, a supervising security captain.

ECF No. 7-2.

On the list, Plaintiff wrote “[t]he metal tack strip needs to be
replaced because its (sic) coming up.”

Id.

On February 22,

2012, Post 11 was inspected by Food and Drug Administration
Physical Security Director Karl Thrash and Major Paul Caruso.
The defects noted on the list of repairs were not addressed
after inspection.
On March 15, 2012, Plaintiff tripped and fell when the
metal strip in the doorway of Post 11 lifted and caught his
boot.

Plaintiff suffered damages which he attributes to

Defendant’s failure to repair the metal strip.

On March 16,

2012, Plaintiff wrote and signed an incident report.

Plaintiff

filed Standard Form 95, Claim for Damage, Injury, or Death, with
GSA on February 7, 2014.

In a letter dated December 4, 2014,

GSA denied Plaintiff’s claim.

On March 25, 2015, Plaintiff

filed suit in this Court.

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II. LEGAL STANDARD
A court considers only the pleadings when deciding a motion
to dismiss.

If matters outside the pleadings are presented and

not excluded, the motion must be considered under the summary
judgment standard of Fed. R. Civ. P. 56.

See Villeda v. Prince

George’s County, MD., et al., 219 F. Supp. 2d 696, 698 (D. Md.
2002).

In this case, the parties submitted matters outside the

pleadings, and the Court has considered these matters.

The

Defendant’s motion shall be considered a motion for summary
judgment and decided accordingly.
Summary judgment is proper if the evidence before the
Court, consisting of the pleadings, depositions and
declarations, establishes there is no genuine dispute of
material fact and that the moving party is entitled to judgment
as a matter of law.

Fed. R. Civ. P. 56(c); Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).

A party seeking summary

judgment bears the initial responsibility of informing the Court
the basis of its motion and identifying the portions of the
opposing party’s case which it believes demonstrate the absence
of a genuine issue of material fact.

Id. at 323.

If the moving

party overcomes its initial burden, the non-moving party must,
in order to withstand the motion, produce its own evidence in
the form of depositions, declarations, or other documentation
demonstrating the presence of a triable issue of fact.
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Id. at

324.

While unsupported speculation is insufficient for this

purpose, Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987), any dispute over facts that may affect the outcome
of the case is considered “material” and will defeat a summary
judgment motion, Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986).

At all times, the non-moving party is entitled

to have “all reasonable inferences . . . drawn in its respective
favor.”

Felty, 818 F.2d at 1128.

III. DISCUSSION
A. Open and Obvious
In Maryland,1 “[a] landowner owes a duty to invitees to keep
his premises in a reasonably safe condition and to protect them
against dangers of which he knows, or which with reasonable care
he should have discovered.”

Maryland State Fair and Agric.

Soc’y, Inc. v. Lee, 348 A.2d 44, 48 (Md. Ct. Spec. App. 1975).
When a dangerous condition would be recognized through the
exercise of reasonable care, “the owner or occupier of land
ordinarily has no duty to warn an invitee of an open, obvious
and present danger.”

Coleman v. United States, 369 Fed.App’x

459, 462 (4th Cir. 2010).

An invitee who is harmed by an open

and obvious condition is usually barred from recovery because

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Under the Federal Tort Claims Act, the “law of the place where
the act or omission occurred” governs. § 28 U.S.C. 1346(b)(1).
The incident in question occurred in Montgomery County,
Maryland, therefore, Maryland substantive law applies.
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“the condition and risk are apparent to and would be recognized
by a reasonable person... exercising ordinary perception,
intelligence, and judgment.”

Id.

Defendant alleges Plaintiff cannot recover under a
negligence theory because there was no obligation to protect
Plaintiff against dangers known to him; dangers that were open
and obvious.

Defendant argues the open and obvious doctrine is

applicable because Plaintiff knew about the defective metal
strip and actually reported the defect to his employer.

The

Defendant’s argument is flawed; “while the fact that a danger is
known, or is obvious, is important in determining whether the
invitee is to be charged with contributory negligence, or
assumption of risk... it is not, however, conclusive in
determining the duty of the possessor, or whether he has acted
reasonably under the circumstances.”

Maryland State Fair, 348

A.2d at 50.
Based on the record, the Court cannot say that the open and
obvious condition of the doorway relieved the Defendant of the
duty to keep the premises in a safe condition.

Despite the

Plaintiff’s knowledge of a needed repair, Post 11 was the
Plaintiff’s assigned work location and it was foreseeable that a
reasonable person in the Plaintiff’s position would continue to
use the doorway to enter and exit the facility.

Where the

condition is one that cannot be negotiated with reasonable
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safety and it is expected that the invitee will nevertheless
proceed to encounter it, the jury may be permitted to find that
obviousness, warning, or even actual knowledge is not enough.
Id. at 51.
B. Contributory Negligence
In the alternative, Defendant argues Plaintiff was
contributorily negligent as a matter of law.

Under Maryland

law, contributory negligence on the part of the plaintiff is an
absolute bar to recovery against a negligent defendant.

See May

v. Giant Foods, Inc., 712 A.2d 166, 171 (Md. Ct. Spec. App.
1998).

The standard of care imposed on a party charged with

contributory negligence is that of a reasonable person under
like circumstances.

Craig v. Greenbelt Consumer Services, Inc.,

222 A.2d 836, 837 (Md. Ct. Spec. App. 1998).

The absence or

presence of contributory negligence is ordinarily a question of
fact for the jury to decide.
(Md. Ct. Spec. App. 1946).

Jackson v. Forwood, 47 A.2d 81, 83

The court is justified in deciding

the question as a matter of law if “the evidence permits one
interpretation which shows some distinct, prominent and decisive
act in regards to which there is no room for ordinary and
reasonable minds to differ.”

Boyd v. Simpler, 158 A.2d 666, 669

(Md. Ct. Spec. App. 1960).
The Court rejects Defendant’s assertion that Plaintiff was
contributorily negligent because he knew of the dangerous
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condition and elected to step on the metal strip.

The issue of

contributory negligence turns not on Plaintiff’s knowledge of
the defect but rather on whether a reasonable person under the
circumstances would understand the inherent risks associated
with the defect and take proper precautions for their own
safety.

Robertson v. Shell Oil Co., 367 A.2d 962, 968 (Md. Ct.

Spec. App. 1977).

Whether Plaintiff acted reasonably under the

circumstances, including whether Plaintiff fully appreciated the
danger posed by the condition of the metal strip is an issue for
jury consideration.

See McKenzie v. Egge, 113 A.2d 95, 100 (Md.

1955) (holding that whether the plaintiff’s action was so
negligent under all the circumstances as to bar recovery is one
for submission to the jury).
The case of Sacks v. Pleasant is instructive on the issue
of contributory negligence.

251 A.2d 858 (Md. 1969).

In Sacks,

an injured tenant sued her landlord for damages after she fell
from a defective toilet seat in her apartment.

Id. at 859.

The

landlord contended the tenant was contributorily negligent
because she was aware that the seat was loose and elected to use
it anyway.

Id. at 861.

The Court of Appeals of Maryland found

the tenant was not contributorily negligent as a matter of law
because, although she knew the seat was defective, it had never
come off before and she was surprised when it did.

Id. at 863.

Analogous to Sacks, there is no evidence in the current record
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that the metal strip in the doorframe ever malfunctioned in the
way that tripped the Plaintiff on March 15, 2012.
Conceding Plaintiff’s knowledge of the defect, the question
remains whether the defect was an “open and obvious condition
which presented danger to anyone who trod upon it.”
367 A.2d at 966.

Robertson,

“Whether a reasonably prudent person, under

similar circumstances, would have stepped slowly or somehow
tested” the area are issues of material fact that should be left
for the jury.

Ensor v. Ortman, 220 A.2d 82, 92 (Md. 1966).

More information is needed to determine whether “[t]he nature of
the condition was such that one might have walked across it
dozens of times...without suspecting its harmful potential.”
Hutzler Brothers Co. v. Taylor, 230 A.2d 663, 670 (Md. 1967).
In addition, Defendant’s argument that Plaintiff failed to
exercise due care, not by using the doorway, but by electing to
step on the metal strip is without merit.

The reasonableness of

the Plaintiff’s election turns on the question of “whether the
plaintiff took appropriate precautions to protect his own
interests.”

Wegad v. Howard Street Jewelers, 605 A.2d 123, 127

(Md. 1992).

In light of the court’s analysis in Lipnick v.

United States, (cited by both parties), the answer to this
question depends on whether there was an alternative route,
whether the doorway was the designated entrance for employees,
whether there was a change in the condition of the doorway, and
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whether the Plaintiff was using the doorway in a routine manner.
717 F. Supp. 902, 907 (D.D.C. 1989).
IV. CONCLUSION
For the above-stated reasons, the Court denies the
Defendant’s motion.

A separate order will issue.

____________/s/___________________
William M. Nickerson
Senior United States District Judge

DATED: September 15, 2015.

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