Woods v. Dolgencorp, LLC

Filing 68

MEMORANDUM Signed by Magistrate Judge Timothy J. Sullivan on 10/21/2016. (cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BETTY WOODS,

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Plaintiff,

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v.

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DOLGENCORP, LLC D/B/A DOLLAR
GENERAL, et al.,

Civil No. TJS-15-3249

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Defendants.
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MEMORANDUM
This Memorandum addresses the Motion to Dismiss, or in the Alternative, Motion for
Summary Judgment (“Motion”) (ECF No. 38) filed by Defendant Reddy Ice Corporation
(“Reddy Ice”). Having considered the submissions of the parties (ECF Nos. 38, 47 & 50), I find
that a hearing is unnecessary. See Loc. R. 105.6. For the reasons set forth below, the Motion will
be granted in part and denied in part.
I.

INTRODUCTION
Plaintiff alleges that on November 19, 2014, she went to the Dollar General store located

at 1197 Merritt Boulevard, Dundalk, Maryland 21222 (“1197 Merritt Boulevard”), and that
“[w]hile walking into the [p]remises, [she] tripped on a buckled mat that was improperly placed
on the ground” and suffered injury. (ECF No. 26 ¶¶ 2, 6.) In her First Amended Complaint
(“complaint”), Plaintiff brings claims against Reddy Ice for negligence and premises liability.
(Id. ¶¶ 39-53.) She alleges that on the date of her fall, Reddy Ice “owned, operated, managed,
controlled, and maintained” the “premises of 1197 Merritt Boulevard.”1 (Id. ¶ 5.)

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In the First Amended Complaint, Plaintiff also alleges that Reddy Ice owned the
escalators and the lighting and handicap ramp (ECF No. 26 ¶¶ 40, 47, 49) at 1197 Merritt

Reddy Ice raises two arguments in its Motion. First, it argues that the complaint must be
dismissed under Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007) because it does not contain facts sufficient to state a plausible claim to relief. (ECF
No. 38-2 at 4-6.) Second, Reddy Ice argues that it is entitled to summary judgment because there
is no genuine dispute that Reddy Ice (1) does not own the real property located at 1197 Merritt
Boulevard, (2) does not exercise management or control over the Dollar General store premises
or any mats at that address; and (3) was not present at the Dollar General store on the date of the
incident or in the months leading up to the incident. (Id. at 6.)
II.

MOTION TO DISMISS
Reddy Ice moves for dismissal of the complaint under Rule 12(b)(6). Rule 12(b)(6)

allows a court to dismiss a complaint if it fails to “state a claim upon which relief can be
granted.” “The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint, [and
not to] resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A complaint must
contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Iqbal, 556 U.S. at 663 (internal quotation marks omitted). A complaint must consist of
“more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will
not do.” Twombly, 550 U.S. at 545. When considering a motion to dismiss, a court must accept
as true the well-pled allegations of the complaint and “construe the facts and reasonable
inferences derived therefrom in the light most favorable to the plaintiff.” Ibarra v. United States,
120 F.3d 472, 474 (4th Cir. 1997).

Boulevard. However, the memoranda submitted in connection with the Motion do not reference
any escalators, lighting, or handicap ramp. Plaintiff’s reference to these facilities in her
complaint appears to be an error.
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Here, I am satisfied that the complaint contains sufficient factual matter to state a
plausible claim for relief. In summary, the complaint asserts the following facts: Plaintiff was an
invitee to the premises where she was injured by tripping over a buckled mat, Reddy Ice
controlled the premises at the time of her injury, Reddy Ice failed to ensure that a mat on the
premises was properly placed, Reddy Ice had notice of the crumpled mat, and Reddy Ice failed to
take proper precautions or warn Plaintiff of the buckled mat. These facts are sufficient to state a
plausible claim to relief because, accepted as true, they allow the Court to draw the reasonable
inference that Reddy Ice is liable for the negligence and premises liability claims asserted against
it. Accordingly, Reddy Ice’s motion to dismiss will be denied.
III.

MOTION FOR SUMMARY JUDGMENT
Reddy Ice argues that it is entitled to summary judgment. “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

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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).
A.

Reddy Ice’s Evidence

In support of its motion for summary judgment, Reddy Ice has attached an affidavit
signed by Lee Hatch (“Mr. Hatch”), who is employed by Reddy Ice as a risk manager. (ECF No.
38-3.) Mr. Hatch affirms that Reddy Ice makes and distributes packaged ice products. (Id.)
According to Mr. Hatch, Reddy Ice does not own the property located at 1197 Merritt Boulevard.
(Id.) In addition, Reddy Ice does not operate or control the Dollar General store located at that
address. (Id.) Likewise, Reddy Ice does not “manage, control, or maintain any mats” on the
Dollar General store premises. (Id.) Finally, Reddy Ice was not present at the Dollar General
store at any time from September 2, 2014 through November 19, 2014. (Id.)
In addition to Mr. Hatch’s affidavit, Reddy Ice has submitted a copy of its Master Supply
Agreement with Dollar General. (ECF No. 50-1.) According to Reddy Ice, this agreement
governed the relationship between Dollar General and Reddy Ice at the time of Plaintiff’s alleged
injury. (ECF No. 50 at 5.) Under the terms of the agreement, Reddy Ice was to provide ice
coolers to designated Dollar General stores, including the store located at 1197 Merritt
Boulevard. (ECF No. 50-1 at 2, 12-18.) Reddy Ice agreed to maintain the coolers “in good
condition and working order,” and to provide the necessary service and support. (Id.) In addition,
Reddy Ice agreed to clean any spills or debris from inside the coolers and to clean up any debris
left by Reddy Ice after restocking the coolers. (Id. at 3.) Notably, the agreement does not state

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that Reddy Ice had any obligation to maintain “accessories” to its coolers. (See ECF No. 47 at 12.)
B.

Plaintiff’s Evidence

In her opposition to Reddy Ice’s motion for summary judgment (ECF No. 47), Plaintiff
endeavors to controvert Mr. Hatch’s affidavit. Plaintiff points to a discovery response from
Defendant Dolgencorp (“Dollar General”) that “Reddy Ice . . . was responsible for the ice cooler
where the alleged occurrence happened, its contents and accessories.” (Id. at 1.) Although
Plaintiff cites to “Ex. 1 at Pg. 7,” there is no such exhibit containing this discovery response
attached to Plaintiff’s opposition. Because discovery responses are not filed with the Court, see
Loc. R. 104.5, Plaintiff’s failure to attach a copy of the pertinent discovery response violates the
requirements of Rule 56(c)(1)(A).
Plaintiff also cites to Dollar General’s third party complaint,2 which asserts that Reddy
Ice “agreed to be responsible for and to maintain the ice and the ice cooler at which the alleged
occurrence happened and all conditions that arose as a result of, or which relate to the presence,
use, maintenance and operation of the ice and ice cooler, its contents and accessories.” (ECF No.
47 at 2 (citing ECF No. 43 ¶ 7).) Reddy Ice objects to Plaintiff’s use of Dollar General’s third
party complaint to oppose its motion for summary judgment. (ECF No. 50 at 4 n.2.) The Court
will sustain Reddy Ice’s objection. Rule 56(c)(3) provides that material submitted in opposition
to a motion for summary judgment must be “presented in a form that would be admissible in
evidence.” See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Humphreys & Partners
Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 538 (4th Cir. 2015), as amended (June 24,
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Dollar General filed its third party complaint against Reddy Ice and Dundalk
Acquisitions, LLC on February 25, 2016. (ECF No. 25.) Dollar General filed an amended third
party complaint on April 25, 2016, which added Merritt Manor, LLC as a third party defendant.
(ECF No. 43.)
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2015) (noting that courts have “great flexibility with regard to the evidence that may be used on
a [summary judgment] proceeding” and that they may consider “the content or substance of
otherwise inadmissible materials where the party submitting the evidence show[s] that it will be
possible to put the information . . . into an admissible form”) (internal quotation marks omitted).
The allegation in Dollar General’s third party complaint is not admissible evidence.
By failing to properly support its assertions that Reddy Ice was responsible for the
coolers’ “accessories,” Plaintiff has failed to raise a dispute as to any of Reddy Ice’s factual
assertions. Fed. R. Civ. P. 56(e). Accordingly, the Court will consider the facts properly asserted
by Reddy Ice in its motion and reply as undisputed.
C.

Analysis

In Maryland, the elements of a negligence claim are “(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.” Chicago Title Ins. Co. v. Allfirst Bank, 394 Md. 270, 290
(2006). In a claim involving premises liability, the status of the person injured on the property at
the time of the incident is critical to determining the defendant’s duty to that person. A person
invited or permitted to be on another’s property for purposes related to the owner’s business is an
invitee. See, e.g., Wagner v. Doehring, 315 Md. 97, 102 (1989). In this case, there is no dispute
that Plaintiff was an invitee on the premises. The duty of a landowner or occupier to an invitee
was summarized by the Court of Appeals of Maryland in Mondawmin Corp. v. Kres, 258 Md.
307, 313 (1970):
The Restatement of the Law of Torts, Second, sec. 343, sets forth the standards
governing the relationship of landowner and business invitee with respect to a
hazardous condition. The landowner is subject to liability for harm caused by a
natural or artificial condition on his land if (a) he knows or by the exercise of
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reasonable care could discover the condition, (b) he should expect that invitees
will not discover the danger, or will fail to protect themselves against it, (c) he
invites entry upon the land without (1) making the condition safe, or (2) giving a
warning.
In Count V, Plaintiff alleges that Reddy Ice is liable for negligence because it failed to
ensure that the “floor mats [on its premises] were properly placed.” (ECF No. 26 ¶¶ 40-41.)
Reddy Ice opposes these allegations with evidence that Reddy Ice was not the possessor of the
premises at 1197 Merritt Boulevard, and that it had no control over any mats on that premises.
Accepting these facts as undisputed, Reddy Ice is entitled to judgment as a matter of law on the
negligence claim. Plaintiff has failed to show that Reddy Ice breached any duty that it owed to
Plaintiff. Reddy Ice’s only duty relevant to this motion was to maintain its ice cooler. Reddy Ice
had no duty to maintain the area surrounding its ice cooler. According to Plaintiff, she tripped on
a buckled mat laying on the ground near the ice cooler, and was not injured by any defect of the
ice cooler itself. Plaintiff has failed to raise a genuine dispute of material fact on this issue.
Accordingly, Reddy Ice is entitled to summary judgment on Count V.
In Count VI, a nearly identical allegation to Count V, Plaintiff alleges that Reddy Ice is
liable to Plaintiff on a theory of premises liability. (ECF No. 26 ¶¶ 46-53.) Specifically, Plaintiff
alleges that Reddy Ice failed to maintain a safe environment on its premises and, “despite actual
and/or constructive notice of the . . . dangerous condition,” failed to warn Plaintiff or take
precautions to prevent her injury. Plaintiff does not define the premises to which she refers in her
complaint. It is not clear whether she refers to the entire parcel of real property at 1197 Merritt
Boulevard, the sidewalk on which the ice cooler is located, or the mat lying on the sidewalk
beside the ice cooler.
In Baltimore Gas and Elec. Co. v. Flippo, 348 Md. 680, 694 (1998), the Court of Appeals
of Maryland reiterated that “the same principles regarding a property owner’s liability to
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[entrants on its property] apply to personal property as well as real property.” See also Baltimore
Gas and Elec. Co. v. Lane, 338 Md. 34, (1998) (overruled on other grounds by Flippo, 348 Md.
at 695) (stating that the same principles of premises liability apply to personal property as to real
property). In light of Flippo, it appears that there are three ways in which Reddy Ice could be
liable to Plaintiff on the premises liability claim: (1) in connection with its possession of the
premises at 1197 Merritt Boulevard, (2) in connection with its possession of the ice cooler
located on that property, and (3) in connection with its possession of the mat lying on the ground
beside the ice cooler on that property. There is no allegation that Plaintiff was injured on Reddy
Ice’s ice cooler and Plaintiff has submitted no evidence to advance such an argument. That
leaves only two ways in which Reddy Ice might be liable under Plaintiff’s premises liability
claim: as the possessor of the premises at 1197 Merritt Boulevard or as the possessor of the mat
on which Plaintiff tripped.
The undisputed evidence submitted by Reddy Ice demonstrates that Reddy Ice (1) did not
possess the property on which Plaintiff was injured and (2) did not control or maintain any mats
on the property. (See ECF No. 38-3.) Because Reddy Ice did not possess the property on which
Plaintiff was injured, Plaintiff has failed to show that it breached any duty that it owed to her.
Similarly, Plaintiff has failed to show that Reddy Ice had any responsibility to maintain the mat
on which she was injured. Accordingly, Plaintiff cannot show that Reddy Ice breached any duty
in this regard.
In addition to the undisputed evidence that Reddy Ice did not possess the property at
issue, Reddy Ice has submitted evidence that it had no actual or constructive notice of the
buckled mat. The undisputed evidence on this point demonstrates that Reddy Ice was not present
on the date of the alleged incident and, in fact, had not been present at 1197 Merritt Boulevard in

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the two months leading up to the incident. (See ECF No. 38-3.) There is no evidence of how long
the mat was buckled. Even assuming arguendo that Reddy Ice did owe a duty to Plaintiff arising
from its ice cooler on the property, Plaintiff has failed to raise a genuine dispute of material fact
that Reddy Ice had notice of the buckled mat.
Because there is no genuine dispute as to any material fact and Reddy Ice has shown that
it is entitled to judgment as a matter of law,3 Reddy Ice’s motion for summary judgment will be
granted.
IV.

CONCLUSION
For the reasons set forth above, Reddy Ice’s Motion to Dismiss, or in the Alternative,

Motion for Summary Judgment (ECF No. 38) is GRANTED IN PART and DENIED IN
PART. Reddy Ice’s motion to dismiss the complaint is denied. Reddy Ice’s motion for summary
judgment as to Count V (Negligence) and Count VI (Premises Liability) is granted.
October 21, 2016
Date

/s/
Timothy J. Sullivan
United States Magistrate Judge

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Alternatively, even if the Court were to consider Plaintiff’s unsupported and
procedurally defective assertion that Reddy Ice was responsible for maintaining the
“accessories” to its ice coolers (see ECF No. 47 at 4), this would not be sufficient to raise a
genuine dispute as to any material fact. See Thompson v. Potomac Elec. Power Co., 312 F.3d
645, 649 (4th Cir. 2002) (stating that a party opposing summary judgment has the “ultimate
burden of demonstrating a genuine issue of material fact for trial,” but that “[c]onclusory or
speculative allegations do not suffice”). First, Plaintiff’s statement is conclusory and lacks any
factual support. It is not clear, for example, from where Reddy Ice’s responsibility to maintain
these accessories arises. Second, even if Reddy Ice was responsible for maintaining accessories
to its ice coolers, the term is undefined. Without any evidence to show that the accessories
include mats placed on the ground beside the ice coolers, this statement does not raise a genuine
dispute of material fact.
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