Lyons v. Shoppers-Mondawmin et al

Filing 24

MEMORANDUM OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 7/24/2017. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

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PENNY LYONS,
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Plaintiff,
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v.
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SHOPPERS FOOD WAREHOUSE CORP.,
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et al.
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Defendants.
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Case No. SAG-16-3322

MEMORANDUM OPINION
Pending before this court is a motion for summary judgment filed by Defendants
Shoppers Food Warehouse Corp. and SUPERVALU INC. (“Defendants”), [ECF No. 21],
Plaintiff Penny Lyons’s (“Plaintiff’s”) opposition, [ECF No. 22], and Defendants’ Reply, [ECF
No. 23]. No oral argument is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons
set forth below, Defendants’ motion will be GRANTED.
I.

BACKGROUND
On September 6, 2013 at approximately 10:00pm, Plaintiff, Plaintiff’s husband Alfred

Lyons, Sr. (“Lyons, Sr.”), and Plaintiff’s son Alfred Lyons, Jr., were shopping at Shoppers Food
Warehouse (“Shoppers”) at Mondawmin Mall in Baltimore City. Penny Lyons Dep. at 31.
About five minutes after entering the store, Plaintiff was pushing a shopping cart when she made
a left-turn down an aisle, walked a few feet, and slipped and fell in a clear liquid substance on
the floor. 1 Id. at 31, 33. Before falling, Plaintiff did not see water on the floor, nor did anyone
tell her they saw water on the floor. Id. at 45, 46. After falling, however, Plaintiff observed a

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In their respective depositions, Plaintiff and her husband referred to the substance on the floor as
“water.” See Pl. Dep. passim; Alfred Lyons, Sr. Dep. at 9-10.

trail of water “coming from the freezer part” of the aisle. 2 Id. at 36, 37. Plaintiff did not see any
footprints or cart marks tracking water on the floor. Id. at 37. Plaintiff did not see water leaking
from a nearby coffin cooler, she never inspected the coffin cooler, and nobody told her the coffin
cooler was leaking. Id. at 45. Plaintiff does not know how the water got on the floor, and she
does not know how long it was on the floor before she fell. Id. at 46. When Plaintiff got up, her
clothes were “really wet.” Id. at 78. She saw “a wet-floor sign like down where the beginning of
the trail of the water was.” Id. Plaintiff estimated that the wet-floor sign, standing near the
coffin cooler, was fourteen to twenty feet from where she fell. Id. at 79. Plaintiff did not know
why the wet-floor sign had been placed there. Id. Lyons, Sr. “believe[d] that the sign may have
been there for some time because of the trail of the distance of the water.” Lyons, Sr. Dep. at 10.
Plaintiff is suing Defendants for negligence and is seeking $695,000 in damages for the
“severe pain and permanent injuries” she suffered as a result of this incident. Pl.’s Compl., [ECF
No. 2, 2-4].
II.

STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure provides 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). “By its very
terms, this standard provides that the 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 v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986). A genuine issue of material fact exists where “the evidence is such
that a reasonable jury could return a verdict for the non-moving party.” Id. When reviewing a

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Plaintiff also stated that she did not know whether the trail of water began at a refrigeration unit, but that
she “assumed” it did because she walked past the end of a coffin cooler before falling, and because the
water on the floor trailed behind her in the direction of the coffin cooler. Pl.’s Dep. at 38, 43, 45. 
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motion for summary judgment, the court must take all facts and inferences in the light most
favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
While the party seeking summary judgment bears the initial burden of demonstrating the
absence of a genuine dispute of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986), the party opposing summary judgment must “do more than simply show that there is
some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986); see also In re Apex Express Corp., 190 F.3d 624, 633 (4th Cir.
1999). The non-movant “‘may not rest upon the mere allegations or denials of [his] pleadings,’
but rather must ‘set forth specific facts showing that there is a genuine issue for trial.’” Bouchat
v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in
original) (quoting Fed. R. Civ. P. 56(e)); see also Adickes v. S. H. Kress & Co., 398 U.S. 144,
160 (1970). A court should enter summary judgment when a party fails to make a showing
sufficient to establish elements essential to a party’s case, and on which the party will bear the
burden of proof at trial. Celotex Corp., 477 U.S. at 322.
Since the alleged tort and resulting injury occurred in Maryland, the Court applies
Maryland law. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941);
Branhaven, LLC v. BeefTek, Inc., 965 F. Supp. 2d 650, 664 (D. Md. 2013) (“When a claim is
based on state law, the choice of law rules are those of the state in which the district court sits.”);
Lab. Corp. of America v. Hood, 911 A.2d 841, 845 (Md. 2006) (holding that, in a tort action,
Maryland applies the law of the state where the injury occurred).
III.

DISCUSSION
Under Maryland law, “a proprietor of a store owes a duty to his customers to exercise

ordinary care to keep the premises in reasonably safe condition, and he will be held liable for

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injuries sustained by a customer in consequence of his failure to do so.” Moulden v. Greenbelt
Consumer Services, Inc., 210 A.2d 724, 725 (Md. 1965). However, the proprietor “is not an
insurer of the safety of his customers while they are on the premises and no presumption of
negligence on the part of the owner arises merely from a showing that an injury was sustained in
his store.” Id.; Giant Food, Inc. v. Mitchell, 640 A.2d 1134, 1135 (Md. 1994); Rawls v.
Hochschild, Kohn & Co., 113 A.2d 405, 408 (Md. 1955). Consequently, to establish a prima
facie case of negligence, Plaintiff must demonstrate that the proprietor “created the dangerous
condition or had actual or constructive knowledge of its existence.” Lexington Market Authority
v. Zappala, 197 A.2d 147, 148 (Md. 1964); Rawls, 113 A.2d at 408. Additionally, Plaintiff has
“the further responsibility of producing evidence that the dangerous condition had existed for a
sufficiently long period of time for [Defendants or their] employees to correct it or to warn
[their] invitees.” Keene v. Arlan’s Department Store of Balt. Inc., 35 Md. App. 250, 258 (1977).
Plaintiff adequately establishes, and Defendants do not dispute, that there was water on
the floor prior to the incident. See Penny Lyons Dep. at 36-37, 45-46 & 78; Lyons, Sr. Dep. at 910. Having successfully established the existence of a dangerous condition, Plaintiff argues that,
“Defendants had [actual] knowledge of the leaky refrigeration unit … [as] demonstrated by the
wet floor sign near [said] unit and the trail of water.” Pl.’s Opp., [ECF No. 22, 3-4]. While
Plaintiff avers that Defendants “were aware the refrigeration unit was leaking water[,]” id. at 5,
this factual claim is not supported in evidence. In her deposition, Plaintiff denied observing
water leaking from the refrigeration unit, inspecting the refrigeration unit, or being told by
anyone that the refrigeration unit was leaking. Penny Lyons Dep. at 45. Lyons, Sr. also cannot
identify the refrigeration unit as the source of the water. See Lyons, Sr. Dep. at 9-10. Plaintiff’s
theory, then, requires that an impermissible inference be drawn between the refrigeration unit

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and the wet-floor sign nearby, see Burwell v. Easton Memorial Hospital, 577 A.2d 394, 395
(Md. App. 1989) (limiting the inferences permitted in premise liability cases to “‘reasonable
ones’”) (quoting Clea v. City of Baltimore, 541 A.2d. 1202 (Md. 1988) (emphasis in original)),
despite Plaintiff conceding that she did not know why the wet-floor sign had been placed in the
aisle. Penny Lyons Dep. at 79. The water could just as easily have come from a drink spilled by
a customer as a leaky cooler.
Still, viewed in the light most favorable to Plaintiff, the wet-floor sign “near the
beginning of the trail of water[,]” Penny Lyons Dep. 78, indicates that Defendants knew that
there was water on the floor and put up a wet-floor sign to warn customers.3 The question, then,
becomes whether Defendants nevertheless “failed to exercise reasonable care to protect
[Plaintiff] against the danger.” Maans v. Giant of Maryland, L.L.C., 871 A.2d 627, 631 (Md.
App. 2005) (citations omitted). See Rehn v. Westfield Am., et al., 837 A.2d 981, 984 (Md. App.
2003) (citations omitted) (“When another patron creates the danger, the proprietor may be liable
if it has actual notice and sufficient opportunity to either correct the problem or warn its other
customers about it.”). According to the Court of Special Appeals of Maryland,
[w]hether there has been sufficient time for a business proprietor to discover,
cure, or clean up a dangerous condition depends on the circumstances surrounding
the fall... ‘[and] involves consideration of the nature of the danger, the number of
persons likely to be affected by it, … the foresight which a person of ordinary
care and prudence would be expected to exercise under the circumstances, and the
foreseeable consequences of the conditions.’
Id. In this regard, Plaintiff fails to offer any credible evidence suggesting that Defendants
breached their duty of care under these circumstances. Plaintiff contends that “[p]lacing a wet
sign up without periodically checking to see if the problem is worsening[] evidences Defendants

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Accordingly, Defendants’ argument that constructive knowledge is the only theory of notice upon which
Plaintiff may rely is flawed. See Def.’s Mot., [ECF No. 21 at 7]. The placement and proximity of the
wet-floor sign to the trail of water signals actual knowledge by Defendants of a hazard necessitating
warning to customers.
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failure to exercise due care.” Pl.’s Opp., [ECF No. 22, 6]. Yet, Plaintiff introduces no evidence
to support this allegation. Indeed, unlike many slip-and-fall cases in business settings, Plaintiff
does not offer cleaning logs, custodial policy, or employee testimony from which reasonable
inferences could be drawn to determine whether liability should attach. See, e.g., Moulden, 210
A.2d at 725 (discussing a store manager’s testimony regarding the store’s custodial cleaning
schedule); Carter v. Shoppers Food Warehouse MD Corp., 727 A.2d 958, 961 (Md. App. 1999)
(discussing a store manager’s testimony regarding the store’s “daily floor sweep log[]” generally
and on the day in question); Myers v. TGI Friday’s, Inc., 2007 WL 4097498 at *3-*4 (D. Md.
Nov. 9, 2007) (discussing the defendant-store’s cleaning schedule and policy regarding spills, as
well as employee testimony regarding the area where the slip-and-fall occurred); Okoh v. Costco
Wholesale Corp., 2012 WL 1191041 at *1 (D. Md. Apr. 6, 2012) (discussing the defendantstore’s “cleaning inspection log” and crowd-size at the store at the time of the accident); King v.
Washington Metropolitan Area Transit Authority, 2016 WL 8716253 at *1-*2 (D. Md. Feb. 26,
2016) (discussing steps taken by defendant-station managers to perform station checks according
to WMATA standard operating procedure prior to and after opening the station on the day of the
accident). Plaintiff offers no evidence about which employee put up the wet-floor sign, when, or
why. Plaintiff’s attempt to demonstrate the severity and duration of the dangerous condition
through alternating claims that “the refrigeration unit had leaked for a significant period of time
or leaked profusely as evidenced by the wetness of [Plaintiff’s] clothes and the trail of water[,]”
Pl.’s Opp., [ECF No. 22, 6], and Plaintiff’s husband’s “belie[f] that the wet sign may have been
there for some time because of the trail of the distance of the water[,]” Lyons, Sr. Dep. at 10,
amounts to little more than guesswork. See Moulden, 210 A.2d at 232 (“The evidence is legally
sufficient to warrant submission of a case to the jury if it rises above speculation or

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conjecture[.]”) Where it is equally possible that an employee put up a wet-floor sign an hour
before and never returned to check on the hazard, as it is that an employee put up a wet-floor
sign moments before and went to retrieve cleaning equipment when Plaintiff slipped and fell, a
trier of fact cannot find that Defendants failed to exercise ordinary care. See Myers, 2007 WL
4097498 at *7 (reasoning that, where multiple explanations for the cause-in-fact of a dangerous
condition are equally likely, “no reasonable juror could find by a preponderance of the evidence
that [defendant] created the dangerous condition[]”). See also Rehn, 837 A.2d at 983 & 985-88
(finding reasonable care where a defendant-employee was told of a spilled drink, immediately
reported it to cleaning personnel, but the accident occurred within four minutes of the spill and
before the cleaning crew arrived on scene).
Furthermore, Moulden, while factually distinguishable from the instant case, does not
support submitting Plaintiff’s case to the jury. See Pl.’s Opp., [ECF No. 22, 7-8]. Unlike
Moulden, where there was no evidence that the defendant-store proprietor discovered the
dangerous condition ahead of the accident, Moulden, 210 A.2d at 726, here the wet-floor sign
supports the rational inference that Defendants saw or anticipated a hazard requiring customer
warning. However, no other legitimate inferences may be deduced from the evidence Plaintiff
has supplied. See Moulden, 210 A.2d at 726 (asking a trial judge “to assume the truth of all the
evidence and all inference which may be naturally and legitimately deduced from it which tend
to support plaintiff’s right to recover in considering whether there is any evidence legally
sufficient to warrant a finding of negligence.”) (emphasis added). As discussed above, a wetfloor sign and water on the floor does not signal a faulty coffin cooler; a trail of water does not
offer insight into rate of leakage or time on the floor; and all of the above evidence does not
indicate that Defendants failed to appropriately and diligently respond to a dangerous condition –

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even one which regrettably led to Plaintiff’s injury. See Burwell, 577 A.2d at 395 (rejecting
plaintiff’s attempt to overcome summary judgment on appeal by relying upon separate factual
bases “‘combined with the most favorable inferences deducible therefrom’” where none of the
inferences were reasonable); Okoh, 2012 WL 1191041 at *2 (noting that “a party cannot create a
genuine dispute of material fact ‘through mere speculation or the building of one inference upon
another.’”) (citations omitted).
Based on the above analysis and the applicable case law, Plaintiff has not evidenced a
genuine dispute of material fact on each element for which she bears the burden of proof and,
accordingly, summary judgment is appropriate.
IV.

CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment is

GRANTED. A separate order will be filed herewith.

Dated: July 24, 2017

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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