Anderson v. Home Depot U.S.A., Inc. et al

Filing 75

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 5/16/2017. (kns, Deputy Clerk)

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

SOllthem Dh';s;o/l

.JENNIFER ANDERSON,

',.

*

Plaintiff,

.

*
Case No.: G.m-I-t-2615

\'.

*
HOME DEPOT U.S.A., INC.,

*
Defendant.

*
*

*

*

*

*

*

*

MEMORANDUM

*

*

*

*

*

*

OPINION

Plaintiff Jennifer Anderson brings this negligenee action against Defendant Home Depot.
U.S.A .. Inc. lor injuries sustained alier a metal bracket fell on Plaintilrs

head while she was

shopping in Defendant's store. Presently pending belore the Court is Defendant's Motion lix
Summary Judgment. ECF No. 59. Defendant's Motion to Strike Plaintiffs Expert Disclosure and
Bar Testimony. ECF No. 65. and Defendant's Motion to Seal. ECF No. 64. No hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). For the I(Jllowing reasons. Delendant's Motion i()r
Summary Judgment is denied. in part. and granted. in part. Delendant's Motion to Strike is
granted. and Delendant's Motion to Seal is granted. in part. and denied. in part.
I.

BACKGROUND
A. The Incident
The loll owing facts are undisputed and presented in the light most 1~I\'orableto Plaintilf

Anderson visited the I-Iomc Depot store in Waldorf. Maryland on the evening of October 30.

,.

20 II. ECF No. 59-2 at 3. I Anderson

was there to purchase a wire ClosetMaid

3--4. She had installed many ClosetMaid

pantry she If. Jd. at

shelves bellJre and was nuniliar with the product. See

it!. at 4. When Anderson arrived at the store. it was "very empty"' and near e10sing time. Jd.
Anderson

proceeded

directly to lind the pantry shelves. It!. When Anderson

aisle. she approached

a bin within a larger bay area where the ClosetMaid

entered the correct
products were located.

Jd. at 5: see ECF No. 62-14 at 2: ECF No. 62-6 at 2-5. The shelves were sitting in a nat bin
feet off the ground. See EeF No. 62-4 at 2. The bin

about eight feet long and three-and-a-half

had a lip around it. about three or Illllr inches tall. with prices listed on the lip. See id: ECF No.

59-2 at 8. The bin contained

three wire shelving products.

upright and leaning backwards

approximately

six feet tall. positioncd

against the wall. See ECF No. 62-6 at 2. Flat shclving pieces were

sitting on the leli side of the bin. small wire pantry shelves wcre in the middle. and large wire
pantry shelves were on the right side of the bin. ECF No. 59-2 at 5-7. The small and large
shelves had multiple tiers and were partially stacked on top of one another. See ECF No. 62-6 at

2: ECl' No. 59-2 at 7.
Scvcral inches above the shelving
customers

could see what the shelving

No. 59-5 at 6-8. The display shelfwas

products was a display sheiL fully assembled.

looked like .when it was installcd.
comprised

ora long vcrticaltrack.

so that

ECF No. 59-3 at 2: lOCI'
approximatcly

long. which was aflixcd to thc wall. See ECF No. 59-5 at 8. Five twelvc-inch

six lect

long. triangle-

shaped. metal brackets hooked into the track. each about sixteen incbes apart. See it!.: ECF No.
62-4 at 2: ECF No. 59-8 at 3. A ventilated
No. 59-3 at 2. According

wire shelfsat

on top orthe

to Ilome Dcpot. no merchandise

storcd on tbe display shelf. ECF No. 59-5 at 15. Defendant

or o\'erstock
also contends

I Pin cites to documents tiled on the Court"s electronic tiling system (CM/ECF)
by that systelll.

2

metal brackets. See ECF
was supposed

to be

that if the shelf were

refer to the page Ilumbers generated

installed correctly. il "would bc a pretty hard hil to dislodgc \Ihe shelf! out oflhe metal brackel:'
ECF No. 59-5 at 9.2
Andcrson selected a smaller pantry shelf trom the middle of the bin. ECF No. 59-2 at 67. She did nolmove anylhing else in the bin. Iii. at 7. No other person was inlhe aisle with
Anderson at the lime. Id. at 4. Anderson reached up and grabbed the bot\om of the she II'to gently
lin it up over the lip and out of the bin. Id. at 7. The wire shelf she grabbcd came Iree oflhe ones
beneath it. and as Anderson was Iifling thc shel L she "Iell the top of il tap something:' Id.
Anderson lookcd up and saw a metal bracket heading towards hcr. Iii. The bracket slruck
Anderson's hcad. nose. cheek. and shoulder. Id. at 13. Photographs of the display sheiL takcn
alier Ihe incidenl. show fiJur metal brackets on the verlicaltrack of the display shelf: with the
right-most bracket missing. See ECF No. 62-6 at 4: ECF No. 59-3 at 2. Although Ihe brackct was
kepI initially. Homc Depot does nol know what ultimately happen cd to the brackct. See ECF No.
62-5 at 6.
Anderson liled a customer incident slatement wilh Assistant Slore Managcr Phillip Yates
al 7:50 p.m. ECF No. 62-2 al 2. The statement indicates that "Ms. Anderson was shopping in
elosct maid area. whcn she lin[edJ pantry rack it hil brace olTtop rack display. Brace camc down
and hit customer in top of head and leli check ....

Cuslomcr will go to SouthcrlnJ MD Ilospital:'

Iii. The incident statement describes Anderson's injuries: "Ip.lret\y bad hcadache and very
nau[ seous

I. Bruise

to len check and very red and swelling on top righl portion of head. Also

bruisc on bridge of nose. Feels tingly in facc. and sore:' Id.

.:!

Details regarding the installation ofihis display shelfare unclear from the record.

SC!('

ECF No. 59-5 at 8: ECF No.

62-5 at 15; but Defendant appears to claim that the vendor. in this case Closet Maid. would have installed it. or hired
<I third party to instnll it. sometime earlier in 2010 or 20 II. ECF No. 62-5 at 16; set! also ECF No. 59-8 at 5-6.

3

B. Home Depot I'lans and Procedures
Thc layout and sctup of thc Home Depot product bays arc guided by "planograms'"
which arc visual diagrams
18. Thc particular
Wirc Shelving'"

planogram

for the pantry shelf bay was titled "6 Bay - 99 - Closct Storage-

and datcd cffcctive

depicts the dimensions
intcnded

by Homc Dcpot. See ECF No. 62-4 at 2-3: ECF No. 62-5 at

published

placement

of various arc as within the product bay. a list of inventory.

ofthc

products.

Thc planogram

bottom. which includes such instructions
cablc to secure vertically

stored shelving"

units must be secured to the back wall .....
installation

14.2011. ECF No. 62-4 at 2-3. Thc planogram

Oetobcr

or placcment

and thc

also includes some "satety text"" at the

as "f ulsc a toe bcam and boltcd satety beam or satety
and "faJssembled

closet. cabinet. and shelving display

Id at 2. The planogram

was uscd in both thc

of the display shell: and in the stocking of product mcrchandise

within

the bay. See ECF No. 62-5 at 18: ECF No. 62-7 at 4. Whilc thc vcndors that would initially "do a
scC' would not "nccd much assistancc

from the store personncl'"

Depot storc manager

on it. ECF No. 62-5 at 19. Yates explains that "fnJormally

would "sign otr

when a set is done ...

whoever

did the set would go ovcr it with whoever the manager is on duty

and if it would be me or whomcver.

just go over cvcrything

and everything

missing anything.

is correct.

ECF No. 62-5 at 16. a Home

ifthcy'rc

and. you know. show the planogram

thcy'llkt

us know. and so on'" ECF No.

62-5 at IS3
Ilomc Dcpot also publishcs

"Standards

ti)r Mcrchandise

ECF No. 62-9 at 2. Among othcr mallers. thcse standards
includcs providing
shelving

on Floor or Shopping

addrcss "sccuring

tor the use of cables or bcams to prcvcnt front-tllcing

Lcvcl."

merchandisc'"

merehandisc.

such as

units. from tailing ti)r\vard. Id At all timcs relevant to thc action. Home Dcpot

l Each bay also had a plastic envelope \,,"jtll a "bay service record:" which a member from the Home Depot
Mcrchnndisc Execution Team (MET) \,,"ouldregularly check. See ECF No. 6'2-7 a12-:l

4

which

employees completed a daily "Store Readiness Checklist Report:' see ECF No. 62-10 at 2-6.
and did a "safety walk:' ECF No. 62-15 at 4. The safety walk took about 8-10 minutes per aisle.
ECF No. 62-15 at 4. These readiness checks did not. however. require the employees to climb up
and actually physically inspect the displays. See ECF No. 62-7 at 8. All the inspections were
done visually and Irom ground level. ECF No. 59-5 at 12. As employee Zachary Jewell explains.
"[iJt's more us walking by and doing a visual and seeing. hey. there's something dangling or
there's something that doesn't look right on the display. and seeing something like that. then we
go from there:' ECF No. 62-7 at 8. ECF No. 62-10 at 4-5.
The Store Readiness Checklist is a live-page spreadsheet covering seventeen different
departments. including hardware. kitchen & bath. decor. and others. ECF No. 62-10 at 2-6. The
employee completing the Checklist writes ..y" or "N" in response to a series of conditions. For
example. in D59 Decor. the employee must verify that the "[aJisles [are] clear of empty pallets.
debris. water:' that there is "no leaning or protruding merchandise:'
merchandise [isl in overhead stable and no higher than 4

n:'

and that the "hand stacked

ECF No. 62-10 at 5. The Checklist

Ii'om October 30. 2011. the day of the incident. indicates all"Y" responses and zero "N"
responses. Id. at 2-6.
In this action. Plaintiff alleges claims of negligence and premises liability against Home
Depot. See ECF No. 13. Ilome Depot has moved liJr summary judgment. ECF No. 59. In
opposition to Defendant's Motion for Summary Judgment. PlaintilThas provided the preliminary
report 01'.1. Ten-ence Grisim. who PlaintilThas designated as an expert in retail safety. ECF No.
62-13 at 2-6. Defendant has moved to strike Plainti ff s expert disclosure and prevent Grisim
from testifying. ECF No. 65. Before addressing whether PlaintifT has created a genuine issue of
material fact. it is appropriate to first consider the admissibility of Plaintiffs expert testimony.

5

II.

MOTION TO STRIKE EXPERT TESTIMONY
A. Standard of Review
Federal Rule of Evidence 702. which governs the admissibility of expert testimony.

provides that:
A witness who is qualitied as an expert by knowledge. skill.
experience. training. or education may testify in the form of an
opinion or otherwise if:
(a) The expert's scientitic. technical. or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a tact in issue:
(b) the testimony is based on sufficient tacts or data:
(c) the testimony is the product of reliahle principles and methods:
and
(d) the expert has reliahly applied the principles and methods to
the tacts of the case.
Fed. R. Evid. 702. Dauherl

1'.

Merrell

Dill!'

Pharlll .. l17c.requires the trial court to act as a

"gatekeeper" of expert testimony. ensuring that the proposed testimony "both rests on a reliable
foundation and is relevant to the task at hand:' 509 U.S. 579. 597 (1993). In applying Rule 702.
the court balances ..two guiding. and sometimes competing. principles:' Weslheny \'. Gislawl!
GUlllllliAB. 178 F.3d 257. 261 (4th Cir. 1999). On one hand. "Rule 702 was intended to
liheralize the introduetion of relevant expert evidence." Ill. On the other hand "expert witnesses
have the potential to 'he hoth powerful and quite mislcading: ... land] protTered evidence that
has a greater potential to mislead than to enlightcn should hc exeluded:' Ill. (intemal citations
omitted).
The proponent of the expert testimony hears the hurden of establishing its admissihility.
that is. "the hurden of coming forward with evidence from which the trial court could determine
that the evidence is admissihle under Dauher!." Mai17SI. Alii. Grp. \'. Sears. Roehuck. & Co.. No.
CIY .IFM-08-3292. 2010 \VI. 956178. at *3 (D. Md. Mar. 11. 2010) (citing Dauherl. 509 U.S. at

6

592 n.10 (1993 ). The court "must assess the proffered evidence using a two-pronged analysis:'
Maill St. Alii. Grp.. 20 10 WL 956178. at *3 (citing NeWlllall \'. Motorola. IlIc.. 218 F. Supp. 2d
769,772 (D. Md. 2002». The court must determine whether the testimony is "reliable" and
whether it is "'relevant:' hI. (eiting Ullited Slates \".Barne/le. 211 FJd 803, 815 (4th Cir. 2(00».
In assessing whether the testimony is reliable, the court may consider a variety of lactors,
ineluding (I) "whether the theory or technique in question can be (and has been) tested:' (2)
"'whether [the theory or technique] has been subjected to peer review and publication:' (3) "its
known or potential error rate"' and 4) "'whether it has attracted widespread acceptance within a
relevant scientitic community:'

Dauhert. 509 U.S. at 580. "The inquiry is a Ilexible one, and its

fi.)cusmust be solely on principles and methodology. not on the conclusions that they generate:'
Id. Additionally, "although experiential expert testimony docs not rely on anything like a

scientific method. such testimony is admissible ... so long as an experiential witness explains
how his experience leads to the conelusion reached. why his experience is a suflieient basis for
the opinion. and how his experience is reliably applied to the itlctS:' United States

1'.

B)'lIul/I. 604

F.3d 161. 167 (4th Cir. 2010) (internal alterations and citations omitted).
Expert testimony is relevant where it is "sufliciently tied to the facts of the case [s01 that
it will aid the jury in resolving a Itlctual dispute" Casey

I'.

Geek Squad"> Suhsidiw:\' Best Bu)'

Stores, L.P.. 823 F. Supp. 2d 334, 341 (D. Md. 20 I I) (citing Dauhert. 509 U.S. at 5(1». Expert
testimony "'is presumed to be helpful unless it concerns matters within the everyday knowledge
and experience ofa lay juror."' Kop!,\". SkYI'III.993 F.2d 374. 377 (4th Cir. 19(3). Thus. "'Rule
702 makes inadmissible expert testimony as to a matter which obviously is within the common
knowledge of jurors because such testimony, almost by definition. can be of no assistance:' Sco/l
\'. Sears. Roehuck & Co.. 789 F.2d 1052, 1055 (4th Cir. 1(86): see. e.g. Pa}!,eI'. Superl'lliu. IlIc..

7

No. CIV.A. WGC-14-150R. 2015 WL 1439572. at *16 (D. Md. Mar. 26. 2015) (Iinding "[iJt is
common knowledge that a grape on the Iloor creatcs a dangerously slippcry condition" and
"placing mats on the Iloor to prevent dangerously slippery conditions clearly lics within the
range of a jUl-y's common knowledge and cxpcrience.").
B. Plaintiffs

Expert Report

Plainti ff has retained .J. Terrcnce Grisim, a "Cel1i lied Safety Professional" and purportcd
"cxpcricntial cxpert in safety engineering. occupational safety. warehousc salety. industrial
safety. product display safety. warehouse store safety. salety training. OSIIA compliancc and
risk managcmcnt." ECI' No. 70 ~ 3. Grisim states that he has worked in"rctail salety ItJr 47
ycars:' ECI' No. 62-13 at 5. Grisim's curriculum vitae revcals that he has a Bachelor's degree in
"Gencral Studics. Youth Serviccs. with concentrations in Aviation Enginecring Tcchnology.
Psychology. and Sociology:'

ECF No, 73-1 at 2. He has professional ccrtifications as a Ccrtilicd

Safety Prolessional and Ccrtilicd Product Salety Manager. Id Grisim is also a spokcspcrson ItH
thc Amcrican Socicty of Salety Enginccrs. ECI' No. 62-13 at 5. He is currently the Prcsident of
Safety Managcmcnt Consultants, Inc. ECF No. 73-1 at 3.
In rendcring his opinions in this casc. Grisim rcvicwed scene photos, thc incidcnt rcport.
deposition transcripts:

answcrs to intcrrogatorics. and the partics' production of documents. ECF

No. 62-13 at 2. Grisim's "cvaluation ofthc display" led him to scvcral"likcly
accidcnt": (I) ..[t]hc shclfbrackct

causcs f(Jr this

was not propcrly installcd on thc display so that it 'nested'

completely into thc vcrtical bar to which it attachcs:' (2) "a storc employee or customer. using a
store laddcr. placed the shelfbrackct

on thc display shelf and it was knockcd offwhcn it was

bumpcd when plaintifTtried to retricvc hcr mcrchandise:'

4

or (3) ..thc display design and layout

Specifically, Grisim reviewed the depositions of Jennifer Anderson. Zachary Jewell. Curtis Russell. David Heil.

and Phillip Yales. Eel' No. 62-13 al 2-3.

was unsafe as it did not allow enough clearance between the stock and the display so that
customers could remove merchandise without striking the display shelf above:' ECF No. 62-13
at 3. Grisim concludes that Home Depot was negligent. !d. at 4. In support. Grisim cites the
National Safety Council Accident Prevention Manual for Business and Industry Administration
& Programs 13th Edition, stating that

"r wlorkers

must build displays so that they are stable to

prevent artieles Ii-mn falling and injuring or tripping customers:' lei.

C. Analysis
Defendant contends that Grisim is not qualilied to provide this testimony. ECF No. 73 at
2. DelCndant notes that Grisim "does not identify any formal education or experience in
engineering, retail displays or retail/shopping environments:'

and that Grisim "is not a licensed

professional engineer." lei. It is true that ..[tJhe fact that a proposed witness is an expert in one
area, does not ipso/llc/o

qualify him to testify as an expert in all related.areas:' SIII'ere \'. Sears.

Roehl/ck & Co., 166 F. Supp. 2d 378, 391 (D. Md. 2001). Here, Grisim identilies no specific

experience working in a retail store or having installed or inspected retail store product displays.
See ECF No. 73-1 at 2-5. In fact. the majority ofGrisim's

professional experience appears to be

related to !leet and motor vehicle safety consulting. lei. Grisim claims no expertise with
ClosetMaid products or displays, or with shelving units in general. Nevertheless, "the lit between
an expert's specialized knowledge and experience does not need to be exaet." Parker \'.
Allel1/Olrn. Inc., 891 F. Supp. 2d 773, 785 (D. Md. 2012). Grisim states that as President of
Safety Management Consultants. he "provides loss prevention and risk management consulting
in the areas of occupational safety:' ECF No. 73-1 at 4. The Court will assume m')!.l/endo that
Grisim is qualified to provide testimony on "warehouse safety issues:' but ultimately concludes
that his testimony does not meet the standards of Dal/her/.

9

Grisim's testimony is not reliable, Grisim points to no principles or methodology utilized
in reaching his conclusions. nor docs he explain how his experience fonns a sutlicient basis for
these conclusions, Grisim reviewed no evidence of the condition of the shelves prior to the
accidcnt. Grisim never visited the Ilome Depot store where the accident occurred, lie conducted
no interviews, See MilsI' \" SlIperm/ll fllc .. No. CIV.A, WGC-10-II05.

2011 WL 1980607. at *7

(D. Md. May 20. 2011) (finding expert testimony unreliable where expert had not gone to the
store or spoken to any of the managers or employees), Grisim took no measurements of anything
related to the accident. Grisim did no research about any of the ClosetMaid products at issue, lie
did not inspect any of the products involved in the accident. lie performed no tests, lie did not
reconstruct the display shelfor recreate the accident. Grisim baldly asserts that the shelf bracket
was "not properly installed on the display so that it 'nested' completely into the vertical bar."'
ECF No. 62.13 at 3. But Grisim does not explain his reasoning or methodology f()r reaching this
conelusion. He does not explain how his experience as a "certified safety expert"" allowed him to
conclude that the bracket was not properly installed, Grisim also does not explain the basis for
determining that ..the display design and layout was unsalc."' Ultimately. Grisim's conelusions
amount to no more than speculation and ..the ipse dixit of the expert." Coopt'/' \', Smirh &
NephI'\\'. fllc .. 259 F.3d 194.203 (4th Cir. 2001) (citing Kllmho Tire Co.. LId \', Carmichael. 526

U,S. 137. 157 (1999)).
Grisim's citation of the National Safety Council Accident Prevention Manual is also
unhelpful. .lust as in Co/ke \', MellaI'd. fllc .. where the court struck Grisim's testimony in a
factually similar case ... the quoted portion of the National Safety Council manual does not
establish any standard against which an expert could asscss a particular retail display. It merely
states that displays should be stable .... Co/ke \', MellaI'd fnc .. No, 13 C 2726. 2015 WL

10

1399049. at *3 (N.D. III. Mar. 25. 2015); see also Conrad \'. ex\' Tran.\jJ.. Jnc.. No. CIY.A.
MJG-14-51. 2015 WL 3797873. at *5 (D. Md. June 17. 2(15) (finding experiential expert
opinion not the product of reliable principles and methods where expert could cite no actual rules
or guidelines for his opinion). In sum. there is "simply too great an analytical gap between the
data and the opinion proffered" to lind Grisim's testimony rcliable in this case. Casey \'. Cleek
SqU{/(lll' Suhsidiary Besl Bu)' Slores. L I'.. 823 F. Supp. 2d 334. 341 (D. Md. 2(11) (citing l'ugh
1'.

Loui.\'1'illeLadder. Jnc.. 361 Fed.Appx. 448. 454n.4 (4th Cir. 2010)).
Grisim's testimony is also not relevant because it would not assist the trier of fact in

determining a fact at issue. As the court in Cr!tree stated. "Grisim simply draws common-sense
conclusions that jurors without his experience arc equally qualilied to make:' Crdfee. 2015 WL
1399049. at *3 (N.D. III. Mar. 25. 2015): see also UniledSlales

1'.

Chris/ian. 673 F.3d702. 710

(7th Cir. 2(12) ("Expert testimony does not assist where the jury has no need for an opinion
because it easily can be derived from common sense. common experience. the jury's own
perceptions. or simple logic."). There are "minimal facts" in this ease. and "ftJhere is no fact in
issue begging for an expert's explanation:'

7,)rres

1'.

K-,\/"rl Corp .. 145 F. Supp. 2dl61.

163

(D.P.R. 2001) (barring Grisim's safety testimony in slip-and-Iall case). Jurors will be able to rely
on their common sense and life experience to determine whether a bracket. if screwed in
properly. should Illl1on a customer's head. even assuming the customer gently bumps that
bracket. Jurors will also he able to determine whether a Ihv inches of overhead space is
sutlieient room to safely lift a wire shelfover a liHlr-ineh tall lip. without potentially dislodging a
shelf sitting ahove it. Grisim's testimony is not helpful in this regard. and therefore it is not
relevant. See Puer/o \'. Mkl .. No. 14-5118.2016 WL 7338526. al *2 (D.N.J. Dec. 19.2016)
("While retail salety operations may implicate specialized knowledge in some cases. the report

II

here provides nothing 'beyond the ken of an average juror."}

For these reasons, Defendant's

Motion to Strike is granted,
I'laintilrs

ability to create a genuine issue of material fact. however, is not vitiated by the

exclusion of the expert testimony III.

an inquiry to which the Court now turns.

MOTION FOR SUMMARY JUDGMENT
A, Standard of Rcvicw
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, 1', 56(a), A material fact is one that "might atlect the outcome of the suit under the
governing law:' Anderson \', Liher/y Lohhy. Inc., 477 U.S. 242, 248 (1986). A genuine issue as
to a material fact exists "if the evidence is such that a reasonable jury could return a verdict fiJr
the nonmoving party:' !d The Court considers the facts and draws all reasonable inferences in
the light most favorable to thc nonmoving party. Scoll \'. lIarris, 550 U.S. 372, 378 (2007).
However, the Court must also abide by its affirmative obligation to prevent tilctually
unsupported claims and defenses from going to trial. Drewill \'. Prall, 999 F.2d 774, 778-79 (4th
Cir. 1993).
The party seeking summary judgment bears the initial burden of identifying those
portions of the reeord demonstrating the absence ofa genuine issue of material filct. See Ce/otex
COIp. \'. Catrell, 477 U.S. 317, 323 (1986): Fed. R. Civ. 1'. 56(c). Once the moving party has mel
that burden, the non-moving party must come forward and show that such an issue does exist.
See Matsushi/a Elec. Co .. !.ttl.

1'.

Zenith Radio Corp .. 475 U.S. 574,586-87

(1986). "The party

opposing a properly supported motion for summary judgment may not rest upon the mere
allegations or denials of I his 1 pleadings. but rather must set forth speci lic filCtsshowing that there

12

is a genuine issue for trial:' BOllchal

I'.

Ballimore Ral'ens Foolhall Cilih. /nc .. 346 FJd 514. 525

(4th Cir. 2003) (internal alterations omitted).
B. Analysis
Plaintiff brings claims of i) negligence-personal

injury. ii) premises liability. and iii)

negligent hiring. training. and supervision arising from this incident. The Court applies Maryland
law in this diversity case. as the alleged tort and resulting injury occurred in Maryland. See
Ryhas \'. Ril'el'l'iell" lIolel COIl)" 21 F. Supp. 3d 548. 560 (D. Md. 2014). Under Maryland la\\'. a
plainti tTbringing a negligence claim must establish four elements: ..( I) that the defendant was
under a duty to protect the plaintiff from injury. (2) that the defendant breached that duty. (3) that
the plaintiffsutTered actual injury or loss. and (4) that the loss or injury proximately resulted
from the defendant' s breach of the duty:' Horridge \'. .'II. AIm)' '.I'Cnly. Dep'l oj"."'oc.Sen's .. 382
Md. 170. 182 (2004).
"The duty of care owed by an owner or occupier of a premises is a function of [its] legal
relationship to the person entering on the premises:' Ryhas. 21 F. Supp. 3d at 560 (citing Cl/.Iper
\.. Charles F Smilh & Son. /nc .. 316 Md. 573.578 (1989)). "Business invitees" are "visitors
invited to enter the premises in connection with some business dealings with the possessor:'
Rhane\'
w.

I'.

Unil'. o(MlIrriand E. Shore. 388 Md. 585. 602 (2005). and as such. are owed ..the
'.

highest duty:' Ryhas. 21 F. Supp. 3d at 560 (citing Norris

I'.

Ross Slores, Inc.. 159 Md. API'.

323. 335 (2004)). PlaintitTJenniter Anderson was a business invitee ofl-Iome Depot. as she was
invited to enter the premises to purchase goods fiJr sale.
A business owes its invitees ..the duty to use ordinary care to have its premises in a
reasonably safe condition:' Norris. 159 Mel. ApI'. at 335. While a business is "not an insurer" of
its customers' safety. Norris. 159 Md. API'. at 335. a business must "use reasonable and ordinary

13

carc to keep the premises safe for the invitee and to protect the invitee from injury caused by an
unreasonable risk which the invitee. by cxereising ordinary care for the invitee's own safety will
not discover:' Gille.IJ!ie \'. Rllhy 7/lesday. /nc .. 861 F. Supp. 2d 637. 641 (D. Md. 2012) (citing
Dehoy \'. Ci/yof"Crisjield.

167 Md. App. 548. 555 (2006). "The duties of a business invitor thus

includc thc obligation to warn invitces of known hidden dangers. a duty to inspect. and a duty to
take reasonable precautions against foreseeable dangers:' Ryhas. 21 F. Supp. 3d at 560 (citing
Tennalll\'. Shoppers Food Warehollse ,'vId.Corp.. 115 Md. App. 381. 388)). "Typically when a
business invitee is injured on a proprietor's prcmises. the business invitee has the burden of
showing the proprictor created the dangcrous condition or had actual or constructive knowledge
of its existence:';

Cllny \'. J. C. I'enney Corp .. No. CIV.A WGC-09-830. 20 I0 WL 972430. at *5

(D. Md. Mar. 12.2010) (citing MOlllden \'. Greenhelt ConsllmerSen's.

/ne.. 239 Md. 229. 232

(1965)) (internal quotations marks omitted).
In ccrtain circumstances. however. a plaintiff may make a primafi,cie

case of negligcnce

by invoking the doctrine of res ipsa IOl[IIi1l1r. Vi/a Sargis & .Iones. Ud.. 108 Md. App. 408.
See
417 (1996). This doctrine permits. but does not require. a jury to infer a defendant's negligence
as the cause of an accident. even where direct evidence of that negligence is lacking. Norris. 159
Md. App. at 329: see also Romero \'. IJrenes. 189 Md. App. 284. 30 I (2009) (noting that res ipsa
IOl/lIilOr"relaxes the nOl"malrules of proor' in a negligence action). Res ipsalol[lIilllr does not
shi n the ultimate burden of prooffrom the plainti ff. Rather. it places on the defendant ..the duty

~ The vast majority or cases applying the "created the dangerous condition or had actual or constructive knowledge"
standard arc slip-and-fall cases. SIle!. e.g. WUHon \', .I.e. {'emu:y ('orp .. Il1c.. No. CV WGC-15-469. 2015 WL
7712252. at *3 (D. Md. Nov. 30, 2015): rage \".,)uperl"lliu. Il1c.. No. CIV.A. WGC-14-1508. 2015 WI. 1439572. at
*4 (D. Md. Mar. 26. 2015): Ryhas I'. Ril'al'iell' I/olel Corp .. 2 I F. Supp. 3d 548. 562 (D. Md. 2014): ,\(n'n \".TGI
Friday's. Il1c.. No. CIV. JFM 07-333, 2007 WI. 4097498, at *4 (D. Md. Nov. 9. 2007). Ilowever the standard has
been referenced in several falling object cases as \\'cll. .)'f!1! Cun:\" \'. .l.C'. Peuney Corp., No. eIY.A WGC-09-830.
20 I0 WI. 972430, at *5 (D. Md. Mar. 12. 20 I0): GillesI'ie \". Ruhy Tuesdu!', Inc .. 861 F. Supp. 2d 637. 642 (D. Md.
2(12).

14

of going forward with the evidence to explain or rebut. if [it] can. the inference that lit] litiled to
use due care:' Munzer! \'. American S/ares. 232 Md. 97. 103 (1963). To rely on res ipsa /al/ui/ar.
a plaintiff must establish "( I) la] casualty of a sort which usually does not occur in the absence
of negligence: (2) caused by an instrumentality within the defendant's exclusive control: (3)
under circumstances indicating that the casualty did not result from the act or omission of the
plaintiff:' Dorer E/em/ar Co. \'.

.'111'(/1111.

334 Md. 231. 236-37 (1994). "The central question

involved in the use of the res ipsa /ol/ui/ur doctrine is whether. by relying on common sense and
experience. the incidcnt more probably resulted from the defendant's negligence rather than from
some other cause:' Norris. 159 Md. App. at 331.
As the Court has already struck PlaintifTs expert testimony. Plaintiff has presented no
other direct evidence of negligence in this case. See Cuny \'. .I.e. Penney Corp .. No. CIV.A
WOC-09-830. 2010 WI. 972430. at *7 (D. Md. Mar. 12.2010) ("lflPlaintifil
expert who opincd that

.I.e. Pcnney

had retaincd an

improperly installed the shelves ... such an opinion would

be proffering direct evidence of negligence:').

There were no witnesscs to the accident except for

Plaintilf There is no video evidence. No testimony has been rendered rcgarding the actual
installation ofthc ClosctMaid display. Additionally. there is no cvidcnce showing the actual
condition of the display shelfbef(lre the bracket fell. Plaintilfhas put I()rth no direct evidence
demonstrating that Defendant created the dangerous condition or had actual knowledge ofthc
dangerous condition. Thus. the success of Plaintilrs claim relies upon the applicability of res
ipsa /ol/ui/or. See Gil/e.'pie r. Ruhy Tuesday. Inc.. 861 F. Supp. 2d 637. 642 (D. Md. 2012)
(finding that plaintiff had no direct evidence of negligence when lamp fell on her hcad at
dclendant's

restaurant. but the doctrine of res ipsa /al/UilOr would penn it jury to inler

negligence).

15

Falling metal brackets are not tbe kind of casualty that ordinarily occur absent
negligence. Indeed. Maryland courts have applied the doctrine of res ipsa IOlfuilor in similar
cases where various objects fell onto a passerby's head. See Ciil/e.\jJiel", Ruhy Tuesday. /nc.. 861
F. Supp. 2d 637. 642 (D. Md. 2012) (light fixture fell onto restaurant patron's head): Norris

I',

Ross Slores. /nc .. 159 Md. App. 323. 335 (2004) (metal shelving unit containing glass products
collapsed onto customer): I.eidenfi'osl

l".

All. Masol/l)'. /nc .. 235 Md, 244. 247 (1964) (pile of

slag blocks fell onto employee on a construction site), But the doctrine is not limited to falling
objects. and it has also been applied. for example. in cases where steps crumbled beneath a
person's feel. see B1ankmship

I'.

Wagner. 261 Md. 37.40.273

A,2d 412. 413 (1971) (delivery

man carrying refrigerator lellthrough steps at property owner's residence), or a ceramic handle
broke offtbe wall ofa motel bathtub. see Apper

I',

Easlgale Assocs .. 28 Md. App, 581. 583

(1975), One would expect that in the ordinary course of business. brackets that should be artixed
to the wall. do not fall onto customers selecting items for purchase, This is true regardless of who
installed the display shelf. because Home Depot was under a duty to inspect its premises and
maintain its premises in a reasonably sale condition, See Reclor

I'.

Olil"er. 809 N,E,2d 887. 892

(Ind. C1. App. 2(04) (""Regardless of who installed the light fixture. we cannot say that a light
fixture falling from the ceiling ofa business is the sort of event which ordinarily happens if those
who have the management and control exercise proper care:').
Additionally. the parties have. at various points in their briefings. grappled with the idea
that the bracket was not attached to the wall at all. but rather. sitting loosely atop the display
shcl 1',CO/llpare ECI' No. 59-1 at 15 (""I
I'this Court assumes. on the other hand. that the fallen
bracket had been resting on top of the Display Shel I'beli.}rethe Plaintiff saeeidenl. there is
absolUlely no evidence as to whether the loose bracket was placed there by a Ilome Depot

16

employec. a ClosctMaid cmployce. or by another Home Dcpot customcr who had impcrmissibly
uscd onc of Homc Dcpot's rolling laddcrs to reach thc top of the Display Shcll".") 'I'ill1 ECF No.
62-1 at 15 ("'While defendant has produced a barc scinti lIa of speculation that it is possible thal a
customer can usc a ladder and place a bracket on top of a shell: this would not explain why thc
dcfendant permitted its own employees to endanger customers by violating thc rule concerning
control of laddcrs"'). Ultimately. this is a question of fact properly reserved for the jury. The
doctrine of res ipsa laquitar merely permits. but docs not require. the jury to infcr ncgligenee on
the part of defendant absent direct evidence. See Norris

1'.

Ross Stores. In<'..159 Md, App, 323.

332-34 (2004). PlaintifTis not required to eliminatc all possible causes of the falling bracket: she
is simply required to show that it is more likely than not her injuries were "caused by the
defendant's negligence than by some othcr cause'" Gillespie ", Ruhy Tuesday, Inc.. X61 F. Supp.
2d 637. 644 (D. Md. 2012). Evcn assuming mxuendo that an unknown cmployee plaecd the
bracket on top of the display shell". or that a customer climbed a store laddcr to do so. a
rcasonable jury could still lind that Ilomc Depot breached the standard of care. The Iirst element
of res ipsa is satislied,
Defendant also cannot establish as a matter of law that the display shclf was not in its
exclusivc control. Norris \'. Ross Stores, In<'.is particularly instructive on this point. 159 Md.
App, 323 (2004), As the court noted. "cvidence of complete control is not required. It may be
established by evidence suflicicnt to warrant an infcrence of its existence. and circumstantial
evidence may suflice. The plaintiffis not required in his proof to excludc remotely possiblc
causes and reduce the question of control to a scientilic certainty'" Norris. 159 Md. App. at 332
(2004) (citing I.eiden/i'ost \', Atl, Masowy. Inc.. 235 Md, 244. 250 (1964)). The Norris coul1
rejccted a narrow constriction of"exclusive

control." reasoning that "'control.'

17

ifit is not lo be

pernicious

and misleading.

must be a very llexible tenn:'

Id. at 332 (internal citations omitted).

The Norris case involved a similar set of facts. in which a metal shelving unit containing
bottles collapsed

onto a shopper walking down thc aisle. The co1ll1 llatly rejected defendant

Ross's contention
the exclusive
installed

glass

that because other customers

had access to the shelves. the shelves were not in

control of Ross. The court also did not require the piaintilTto

show that Ross

the shelves. Thc court wrote:
Here. we assume that Ross is a sell~serviee store. where customers
are invited to inspect. remove. and replace goods on shelvcs. The
exercisc of ordinary care may well rcquirc the owncr to take
greater precautions than would otherwise be needed to safeguard
against the possibility that a customer may create a dangerous
condition by disarranging the merchandise and creating potentially
hazardous conditions ....
The doctrine of res ipsa loquitur does not require that the shelving
unit have been installed by Ross. We observe that the exelusive
control requirement of the res ipso loquitur doctrine rcquires that
Norris dcmonstrate
that Ross had exelusivc
control over the
instrumentality
at Ihe tillle or the alleged negligenl acl. Here. the
negligent act could have been the installation of the shelving unit.
but the jury could also reasonably inler that the negligence was the
failure to rcasonably maintain the shelving units. Regardless of
who installed the shelving units. we cannot say that nilling
shelving units arc the sort of event that ordinarily happens if thosc
who have the management and control exercise proper care.

Norris

I'.

Ross S/tJres, Inc.. 159 Md. App. at 333-34 (emphasis

Depot was under a duty to maintain
could conclude

its display shelves in a reasonably

overhead

equally possible that a jury could infer negligence

uncorrected

by the Delendant.

Home

A jury

which one or more

or that Home Depot allowcd the brackets to become loose

over time. because there was inadequate

or even a customer.

Analogously.

sale condition.

that I-lome Depot either signed of Ton a display shelfin

brackets was not fastened properly.

employee.

in original).

space to safely remove the merchandise.
through the alternative

hypothesis

leli a bracket sitting atop the display shelL and it went
The second clement
18

is satisfied.

that an

It is

Finally. PlaintitTmust
do so by showing

"eliminate

[herl own conduct as a cause of the il1jury. [She] may

that [shel has done nothing abnormal

with the instrumentality

causing the

injury and has used it in the lI1anner and for the purpose lar which it was intended:'

Appel' \'.

Easlgale Assocs .. 28 Md. App. 581. 588 (1975). There is no evidence that Anderson did anything
abnormal

with the wire shell~ Anderson

merely lifted the shelf out of the bin where it was sitting.

and she was in fact invited to do so in order to purchase

it. Anderson

testitied that when she

lifted the shelL she did so gently. ECF No. 59-2 at 7. She testified that she was familiar with the
product and had purchased

and installed

many such products

before. Id at 4. While Anderson's

case differs slightly fi'om Ililling object cases in that she made contact with the overhead

display.

[IJt is not necessary that [Plaintiftl be the completely inert object
of the negligent act. The act of the injured person which sets in
motion the instrull1ent of the injury must not be confused with an
act of the injured party by which. sharing responsibility
in some
way with the defendant !ar the creation or maintenance
of the
dangerous condition. l she 1 is deemed also to share the negligence.

Appel'. 28 Md. App. at 589. Here. Plaintiff was doing no more than what was required of her to
select the product.
sUll1mary judgment

Plainti!T has satisfied the third clement of res ipsa /oqllilor to survive
on Counts I and II.

Plaintiff has not. however.
hiring. training. and supervision.
action far negligent

carried her burden far Count III. her claim fill' negligent
"As in any action for negligence.

hiring or retention

a plaintifTasserting

l11ust prove duty. breach. causation.

a cause of

and damages:'

Aspha/I & COllcrele Sel'\'s .. Inc. \'. 1'1'/'1)'.221 Md. App. 235. 256 (2015). To prevail on this
claim. Plainti ITmust show that .. [she] suffered
defendant's

employees:

capable of inllicting
its employees:

that defendant

knew or should have known that its employees

such harm: that defendant

and that defendant's

injury caused by the tortious conduct of

failed to use proper care in supervising

failure was the proximate

19

were
or training

cause of plain tift's injuries. ,~l'dllor

\'. Finish Line. In('.. No, CIV. CCB-10-3650. 2011 WL 4592400. at *3 (D. Md, Sept. 29. 2011),
"Under Maryland law. an employer's liability in this regard is not to be reckoned simply by the
happening of the injurious event. Rather. there must be a showing that the employer I~liledto use
reasonable care in making inquiries about the potential employee. or in supervising or training
the employee," Economic/col'I'. Gay. 155 F. Supp. 2d 485. 489 (D. Md. 200 I) (internal citations
omitted).
I'lainti 1'1' put Il1l,thno evidence about a speei lic employee who was negligently hired
has
or trained. The rccord contains no factual allcgations about tortious conduct of any of
Defendant's employecs. See Sill'erl'. Wells Fargo /Jank, N.A .. No, CV MJG-16-382. 2016 WL
6962862. at *8 (0. Md. Nov. 29. 2016) (dismissing negligent hiring and retention claim where
Plainti 1'1'
provided no speci lic factual allegations about delendant's liIilure to usc reasonable care
in cmploying or supervising a particular employee). PlaintitThas also failed to dcmonstrate in
any meaningful way how Home Depot's hiring or training policies were negligent. Plaintiff
states that the National Safety Council Accident Prevention Manual states that "workers must
build displays so they are stable," and that ..the store employees each testilled that there was no
training of procedure requiring physical inspection of the display," ECF No. 62-1 at 18. But
Plainti ITdoes not cite any evidence as to how these policies were a breaeh of the standard of care
or the proximate cause of Plaintiffs injuries. See Umheni \'. Target Corp .. No. RWT 15-CV3827.2017

WL 1176058. at *2 (D. Md, Mar. 30. 2(17) (granting summary judgment Illr

delendant Target where plainti 1'1'
provided only bare assertions regarding Target's alleged
negligence in hiring. training. and supervising employecs who maintained the premises).
Because there is no genuine issue for trial on this claim. Count III must be dismissed.

20

IV.

MOTION TO SEAL
As a linalmatter.

Support ofPlaintifTs

Defendant has moved to seal Plaintitrs

Memorandum of Law in

Opposition to Defendant"s Motion for Summary Judgment. ECF No. 62.

and various attachments. Eel" Nos. 62-4. 62-8. 62-9. 62-10. 62-11. and 62-13. ECF No. 64. A
motion to seal must comply with Local Rule 105.11. which requires the requesting party to
"include (a) proposed reasons supported by specilic factual representations to justify the sealing
and (b) an explanation why alternatives to sealing would not provide specilic protection:' Loc.
R. 105,11 (D. Md, 2016). Although certain circumstances necessitate the sealing of lilings ... , ilt
is well settled that the public and press have a qualilied right of acccss to judicial documents and
records tiled in civil and criminal proceedings:' Roherts \'. Office o(Sherift:tiJr Charles Cty.. No,
CIV,A. DKC 10-3359.2014

WL 3778594, at *1 (D. Md, July 29,2014) (citing Doe \'. Public

Citizen. 749 FJd 246. 265 (4th Cir. 2014)). There is a "presumption of access accorded to
judicial records" that can only be rebutted if"countervailing

intercsts hcavily outweigh the

public interest in access:' Rush/ill'll \'. Nell' Yorker Magazine. 846 F,2d 249. 253 (4th Cir. 1988).
Ilere. Defendant fails to meet the requirements of Local Rule 105.11 with respect to
Plaintitrs

Memorandum, Defendant states that Plaintilrs "Memorandum and exhibits contain

I-lome Depot's policies and procedures and or other documents referencing Home Depot"s
policies and procedures:'

ECF No. 64 at I. Defendant points to a Protective Order and

conlidentiality agreement, and further states that the information sought to be protected is "not of
the kind generally available to the public and is of the kind that Home Depot takes a proprietary
interest in developing and protecting from general disclosure to the public and its competitors."
Id. at 2, However, mercly claiming a proprietary interest in store plans and policies does not

constitute a "specilic factual representation." Metro. Reg'l Ill/ii.. ~\'s.. Illc. \'. Alii. Ilollle Realty

21

No. CIV. A W 12-954.2013 WL 3442764. at *2 (D. Md. July 8. 2013) (noting that

Nelll'lJrk.

"vague reference to 'eonfldential trade secrets' is not a specillc factual representation").
Defendant also asserts. without further explanation. that "Defendant has no alternative to seeking
sealing as the public can generally access the pleadings and exhibits flied in this Court ..... Id
.Defendant does not explore any alternative. such as redaction. as opposed to sealing Plaintiffs
Memorandum in its entirety. See Sky Allgel

u.s..

LLC \'. Di.\"ClJI'el)' COIl11I1C'I1S.
LLC.

28 F. Supp.

3d 465. 489 (D. Md. 2014) (denying motion to seal and noting that parties have made no attempt
to redact certain pOl1ions of the filings). Additionally. Defendant has not met its burden of
showing that its claimed business interests heavily outweigh the public interest in access to this
document. On this basis. the Court cannot permit the sealing of a document as critical to the
Court's detel111ination of the summary judgment motion as the Plaintiffs Opposition
Memorandum.
With respect to the attached exhibits, however. the Coul1 acknowledges that these
documents may contain sensitive business information, and will grant the Motion to Seal ECF
Nos. 62-4. 62-8. 62-9. 62- J O. 62-1 I. and 62-13. See 8orilllo/1
3324.2016

\'. BOl1k o/AIII .. Il1c.•

No. PWG-14-

WL 4089564. at *8 (D. Md. Aug. 2. 2016) (granting motion to seal cel1ain

documents containing sensitive business information): S/ra/ogel1e \'. 111I'i/rogel1 Corp .. 206
F.R.D. 121. 122 (D. Md. 2002) (granting motion to seal where accompanying exhibits contained
potentially sensitive business inf(mnation. and no objection had been flied). Regarding Plaintilrs
Memorandum itself: ECF No. 62-1. Defendant shall identify any specific portions which warrant
redaction. and the basis for any suggested redaction. within 7 days of the attached Order. Any
objections may be tlIed within 7 days of such motion. At that time. the Court will revisit its

22

decision whether to maintain the Memorandum under seal. The Motion to Seal is thus granted, in
part, and denied, in part.
V.

CONCLUSION
For the foregoing reasons, Defendanfs

Defendanfs

Motion to Strike, ECF No. 65, is granted,

Motion for Summary Judgment. ECF No. 59, is denied. in part. and granted. in part.

and Defendanfs

Motion to Seal, ECF No. 64, is granted. in part, and denied, in part. A separate

Order shall issue.

Date: May

A;f-

I y. 2017

GEORGE J. HAZEL
United States District Judge

23