Trumbull Insurance Company et al v. Courtyard Management Corporation

Filing 22

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 7/28/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
TRUMBULL INSURANCE COMPANY
as subrogee for Daniel R.
Hryciak, et al.

:
:

v.

Civil Action No. DKC 14-3325
:

COURTYARD MANAGEMENT
CORPORATION

:
MEMORANDUM OPINION

Presently

pending

and

ready

for

resolution

in

this

negligence case is a motion for partial summary judgment filed
by Plaintiffs Trumbull Insurance Company, as subrogee for Daniel
J. Hryciak, and Daniel R. Hryciak (collectively, “Plaintiffs”).
(ECF No. 13).

The issues have been fully briefed, and the court

now rules, no hearing being deemed necessary.
For

the

following

reasons,

Plaintiffs’

Local Rule 105.6.

motion

for

partial

summary judgment will be denied.
I.

Background
A.

Factual Background

Unless otherwise noted, the following facts are undisputed.
Daniel R. Hryciak (“Mr. Hryciak”) is employed by Reeds Jewelers,
Inc. (“Reeds”) as a district supervisor.

On August 7, 2013, Mr.

Hryciak was a registered guest at the Dulles Marriott Hotel in
Virginia,

where

he

attended

a

business

function

for

Reeds,

conducting interviews at a job fair for Reeds’s new location.
(ECF No. 16-7, at 3, Hryciak depo.).

The Dulles Marriott is

operated

by

Defendant

Courtyard

(“Courtyard” or “Defendant”).
insured

by

Trumbull

Management

Corporation

(ECF No. 10 ¶ 3).

Insurance

Company

for

Reeds was

its

employees’

compensation liabilities.
While a guest at the Dulles Marriott, Mr. Hryciak slipped
and fell on August 7, 2013.

(ECF No. 1 ¶ 5).

Mr. Hryciak

testified during his deposition taken in January 2015 that he
was sitting at the Bistro in the hotel lobby doing paperwork
before the incident.

(ECF No. 16-7, at 3, Hryciak depo.).

In

his deposition, Mr. Hryciak stated that he left the Bistro area
twice – once to go to the restroom and once to go up to his room
to get a brief that he needed.

(Id. at 4).

He stated that when

he initially got up to go to the restroom, he did not notice
anything unusual about the floor surface.

(Id.).

Mr. Hryciak

explained the route he took to go to the restroom:
I came from the table and walked
towards the corner where I later slipped,
went down the hallway and the bathroom, I
believe, if I remember correctly, was down
there to the left, I believe.
I stay in a
lot of hotels, so that’s – but I believe
that’s where I was.
He stated that he walked down the same hall where he later
slipped both times.
Mr.

Hryciak

stated

in

his

deposition

that

he

did

not

remember seeing any “Wet Floor” signs when he walked to the
restroom at the end of the hallway, but he recalls “the hall
2

being wet all the way down the hall where the pool door is.”
(ECF No. 16-7, at 4).

He said the floor visibly was wet so he

had to walk around it.

He saw a small puddle of two to three

inches which he walked around.
Mr. Hryciak returned to the Bistro area after he went to
the restroom.

He stated that the wet area still was there when

he returned to the Bistro.

He did not report the wet area,

however, because he “[d]idn’t even think of that.
occurrence

at

experience.”

hotels

outside

(Id. at 4-5).

the

pool

It’s a usual

door,

in

[his]

There are some inconsistencies in

Mr. Hryciak’s recollection of the events that led up to his fall
and the actual fall, which will be discussed in the analysis
section.
Mr. Hryciak stated that after he left the Bistro a second
time to go to his hotel room, he fell: “I left my chair, walked
towards the hallway.

As soon as I went to turn the corner into

the hall, my feet went out from under me and I fell back and
came down on my right elbow.”
incident

report

from

that

(ECF No. 16-7, at 5).

day,

prepared

by

the

The

Operations

Manager at the Dulles Marriott, Michael Lizon (“Mr. Lizon”),
indicates that the incident occurred at approximately 2:30 p.m.
in

the

hotel

lobby.

Mr.

Lizon

explaining:

3

submitted

an

affidavit,

In my role as Operations Manager, I had
the opportunity to review and investigate
the facts surrounding Plaintiff Hryciak’s
claims arising from an alleged incident that
occurred at the subject hotel on August 7,
2013. I arrived at the scene of the alleged
incident and spoke with Mr. Hryciak and Mr.
Robert Kenny and I wrote out an Incident
Report (Exhibit A) wherein I wrote down what
they told me.
(ECF No. 16-5 ¶ 3).

The Incident Report provides the following

details:
Was sitting in Bistro chatting w[ith]
co[-]worker. Went up to use restroom – when
walked around the corner to the hall where
restroom is located, guest slipped on wet
floor. Wet floor signs was down at the end
of the hallway. Floor did not appear wet –
more greasy/soapy. Guest in lobby (witness)
came over to assist.
Mr. Hryciak slipped
and fell on arm/elbow.
No emergency
services needed – may see doctor back home.
Witness – was in lobby – did not see guest
fall – ran over - guest was on left side
complaining of right arm pain.
Witness saw
wet floor sign down at the end of hall.
Floor was sli[c]k – didn’t appear wet
(soapy).
(ECF No. 13-3).
As a result of the fall, Mr. Hryciak fractured his right
elbow

and

reported

required
Mr.

surgery.

Hryciak’s

(ECF

injury

to

No.

16-8,

Trumbull

at

4).

Reeds

Insurance

Company

(“Trumbull”), Reeds’s insurer for workers’ compensation benefits
in Maryland and Virginia.
Hryciak’s

medical

bills

(ECF No. 1 ¶ 9).
and

short

4

term

Trumbull paid Mr.

disability

claim

as

ordered by the Virginia Worker’s Compensation Commission in the
amount

of

$46,462.20.

reimbursement

from

(Id.

Defendant

¶

for

10).

the

Trumbull

expenses,

but

sought

Defendant

denied liability.
B. Procedural Background
Plaintiffs filed a complaint on October 23, 2014, asserting
two negligence claims against Courtyard Management Corporation
by

Mr.

Hryciak

and

Trumbull,

as

subrogee

for

Mr.

Hryciak.

Sometime after discovery commenced, Plaintiffs moved for partial
summary judgment as to liability.

(ECF No. 13).

Defendant

opposed the motion (ECF No. 16), and Plaintiffs replied (ECF No.
17).
II.

Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure, permits

a party to move for summary judgment or partial summary judgment
by identifying “each claim or defense — or the part of each
claim

or

defense

(emphasis

added).

pretrial

—

on

which

summary

“[P]artial

adjudication

that

summary

certain

established for the trial of the case.

judgment
judgment

issues

is
is

shall

sought.”
merely

be

a

deemed

This adjudication . . .

serves the purpose of speeding up litigation by” narrowing the
issues for trial to those over which there is a genuine dispute
of material fact.

Rotorex Co. v. Kingsbury Corp., 42 F.Supp.2d

563, 571 (D.Md. 1999) (internal quotation marks omitted) (noting
5

that “numerous courts have entertained and decided motions for
partial summary judgment addressing particular issues”).
A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
party

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

(1986).

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

250

Once a properly supported motion for summary judgment

is filed, the nonmoving party is required to make a sufficient
showing on an essential element of that party’s claim as to
which that party would have the burden of proof to avoid summary
judgment.

Celotex, 477 U.S. at 322–23.

Summary judgment is appropriate under Federal Rule of Civil
Procedure Rule 56(a) when there is no genuine dispute as to any
material

fact,

and

the

moving

party

is

plainly

judgment in its favor as a matter of law.

In

entitled

to

Anderson v.

Liberty Lobby, Inc., 477 U.S. at 249 (1986), the Supreme Court
explained that, in considering a motion for summary judgment,
the “judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”

A dispute about a material fact

is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”

Id. at 248.

Thus,

“the judge must ask himself not whether he thinks the evidence
6

unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on
the evidence presented.”

Id. at 252.

In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
favorable to the party opposing the motion.”

Matsushita Elec.

Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting

United

States

v.

Diebold,

Inc.,

369

U.S.

654,

655

(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).
evidence

in

support

The mere existence of a “scintilla” of
of

the

non-moving

party’s

case

is

sufficient to preclude an order granting summary judgment.

not
See

Anderson, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”

Shin v.

Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed,

this

court

has

an

affirmative

obligation

to

prevent

factually unsupported claims and defenses from going to trial.
See

Drewitt

v.

Pratt,

999

F.2d

774,

778–79

(4th

Cir.

1993)

(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
III. Analysis
Both parties rely on Virginia law in their papers.
choosing

the

applicable

substantive
7

law

while

When

exercising

diversity

jurisdiction,

as

here,

a

federal

district

applies the choice of law rules of the forum state.

court

See Klaxon

Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941).
Regarding

tort

claims,

such

as

the

negligence

claims

here,

Maryland applies the law of the state where the alleged harm
occurred
Virginia,

(“lex
thus,

loci
as

delici”).
the

Here,

parties

the

harm

recognize,

happened

any

in

potential

liability is governed by Virginia law.
In Virginia, to recover on a negligence claim, a plaintiff
must establish: (1) that defendant owed plaintiff a duty; (2)
that defendant breached that duty; and (3) that this breach
proximately caused plaintiff to suffer damages.
Owners Ass’n v. King, 266 Va. 288, 293 (2003).

Atrium Unit
Defendant owed

Mr. Hryciak a “duty to exercise ordinary care toward [him] as
its invitee upon its premises.”
203 Va. 535, 537 (1962).

Colonial Stores Inc. v. Pulley,

This duty of ordinary care requires

that Defendant keep:
the premises in a reasonably safe condition
for [his] visit; to remove, within a
reasonable time, foreign objects from its
floors which it may have placed there or
which it knew, or should have known, that
other persons had placed there; to warn the
plaintiff of the unsafe condition if it was
unknown to [him], but was, or should have
been, known to the defendant.
Id.

A plaintiff in a premises liability case must “prove the

existence of an unsafe or dangerous condition on the premises.”
8

Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 451-52 (4th Cir.
2004) (citing Kendrick v. Vaz. Inc., 244 Va. 380, 385 (1992)).
“[T]o hold a property owner liable for injuries caused by a
dangerous

condition,

knowledge

of

the

‘it

alleged

must

be

unsafe

shown

that

condition,

the

or

owner

that

it

had
had

existed for such a length of time as to make it the owner’s duty
in

the

exercise

of

ordinary

care

to

have

discovered

it.’”

Sutherlin v. Lowe’s Home Center, LLC, Civ. No. 3:14cv368(DJN),
2014 WL 7345893, at *4 (E.D.Va. Dec. 23, 2014) (quoting Cannon
v. Clarke, 209 Va. 708, 712 (1969)).
however,

that

a

plaintiff

cannot

It is well-established,

recover

under

a

negligence

theory if “the purported defect of which the plaintiff complains
was ‘known, visible or obvious’ to him.”

Freeman v. Case Corp.,

118 F.3d 1011, 1014 (4th Cir. 1997) (citing Wood v. Bass Pro
Shops, Inc., 250 Va. 298, 301 (1995)).

Ordinarily, negligence

is an issue “to be decided by a fact finder” and should be
decided as a matter of law “[o]nly when reasonable minds could
not differ.”

Kimberlin v. PM Transport, Inc., 264 Va. 261, 266

(2002).
The parties do not dispute that Defendant owed Mr. Hryciak,
an

invitee,

the

duty

to

use

ordinary

premises in a reasonably safe condition.

care

to

maintain

its

(ECF No. 16, at 4).

Plaintiffs’ four-page motion for partial summary is sparse, but
they appear to argue that the tile floor on which Mr. Hryciak
9

allegedly slipped had been mopped recently and that Courtyard
failed to warn Mr. Hryciak of the allegedly hazardous condition
on the premises.
Plaintiffs

(See ECF No. 13-1, at 3).
cite

a

February

28,

2014

letter

from

Cathie

Winffel, a Senior Claims Adjuster with Marriott Claims Services,
to establish that the tile floor where Mr. Hryciak slipped and
fell had been mopped recently by a Courtyard employee:
Daniel Hryciak was a guest at the
Dulles Marriott Town Center Courtyard.
Mr.
Hryciak slipped and fell on a recently
mopped floor.
Wet floor signs were posted
in the lobby.
We are denying liability for
this incident and will not be providing
reimbursement of payments made.
(ECF No. 13-2) (emphasis added).

They also cite the Incident

Report completed on the date of the injury, which states, inter
alia, that the guest “slipped on a wet floor.

Wet floor sign

was down at the end of the hallway.”

(ECF No. 13-3).

Defendant

contends

written

Lizon,

that

the

Incident

Report

by

Mr.

a

Courtyard employee, “is not an admission of liability on behalf
of

Courtyard

because

it

was

not

written

in

the

words

of

a

Courtyard employee or representative but, rather, in the words
of Mr. Hryciak and any other individual who might have provided
information to Mr. Lizon.”
submitted

an

affidavit,

in

(ECF No. 16, at 2).
which

he

confirms

Mr. Lizon
that

in

the

Incident Report, he wrote down what Mr. Hryciak and Mr. Robert
Kenny, a witness, told him, not what he himself observed.
10

(ECF

No. 16-5 ¶ 3).

Defendant further argues that the February 28,

2014 correspondence from Ms. Winffel is not an admission of
liability on behalf of Courtyard because it merely states that
the floor where Mr. Hryciak slipped was recently mopped, not
that he was injured because the floor was mopped.

(Id. at 3).

Putting aside any admissibility issues with the Incident
Report and the correspondence from Ms. Winfell, as will be seen,
factual inconsistencies on the record preclude summary judgment.
Defendant does not deny that the floor where Mr. Hryciak fell
had been mopped at some point before he fell, but argues that
genuine disputes exist as to whether it possessed actual or
constructive

knowledge

of

the

specific

unsafe

condition

whether the condition was an open and obvious hazard.1

and

Defendant

submits an affidavit from Ms. Winffel, in which she states:

1

Defendant states in its opposition to Plaintiffs’ motion
for
partial
summary
judgment
that
Mr.
Hryciak
was
“contributorily negligent in the happening of the subject
incident.”
(ECF No. 16, at 5).
In Virginia, contributory
negligence occurs when the plaintiff “fail[s] to act as a
reasonable person would have acted for his own safety under the
circumstances.”
Artrip v. E.E. Berry Equip. Co., 240 Va. 354,
358 (1990).
“If the plaintiff was contributorily negligent,
then Virginia law bars that plaintiff from recovering in a
negligence action if the plaintiff’s contributory negligence was
a proximate cause of his injury.”
Baweja v. Roach, 24 F.App’x
th
198, 199 (4
Cir. 2002) (citing Litchford v. Hancock, 232 Va.
496, 499 (1987)).
Defendant does not explicitly identify the
evidence on which it relies to assert the contributory
negligence defense. Moreover, “contributory negligence and open
and obvious dangers are generally jury questions[.]” Loomis v.
11

4. Based upon my investigation of Mr.
Hryciak’s claim, I determined that prior to
the
alleged
incident[,]
Mr.
Gilberto
Martinez,
who
is
an
employee
of
the
Defendant, had mopped the tile floors near
and
around
where
the
alleged
incident
occurred.
(ECF

No.

16-4

¶

4).

Mr.

Lizon

similarly

indicates

in

his

affidavit that he “determined that earlier the same day of the
alleged

incident

Mr.

Gilberto

Martinez,

an

employee

of

the

Defendant in the housekeeping department, had mopped the tile
floors near and around where the alleged incident occurred, and
that the area was mopped using only a bucket with hot water and
a mop.

No soaps or detergents were used that day nor any other

day on the tile floors in the area of the alleged incident.”
(ECF No. 16-5 ¶ 4).
Nothing on the record, however, conclusively establishes
when the hotel employee mopped the floor in relation to when Mr.
Hryciak fell and whether Defendant was aware of the allegedly
dangerous condition on the premises which caused Mr. Hryciak to
fall.

Ms. Winffelt conducted a recorded phone interview with

Mr. Hryciak shortly after the incident on August 12, 2013, in
which he stated: “The floor did not appear to be wet but it was
very slippery as evidenced by, there was a fellow that came over
that

was

a

paramedic

with

a

girls’

softball

team

that

was

Kroger Ltd. Partnership I, No. 2:14CV536, 2015 WL 3793751, at *3
(E.D.Va. June 17, 2015).
12

apparently visiting or in the hotel also and he, as he came over
to

me,

he

realized,

he

actually

towards me on the floor.

as

he

down,

slid

There was, it didn’t look wet, but it

was slick with something.

I don’t know what, and my clothes

were not wet when I stood up by the way.”
(emphases added).

squatted

(ECF No. 16-8, at 2)

In his January 28, 2015 deposition, however,

Plaintiff changed course, stating that the floor was “wet.

It

was a slick . . .

It

I don’t want to say soapy.

was extremely shiny, and my pants were wet.
pants, I had a slight wet mark.
moment until I got up.”

It was slick.

The side of my

I didn’t realize that at the

(ECF No. 16-7, at 7) (emphasis added).

Mr. Lizon, on the other hand, states that he “went to the area
of the floor where Mr. Hryciak said that he fell and [] touched
the floor and found that it was not slick or slippery or wet.”
(ECF No. 16-5 ¶ 4).
Moreover, the record contains conflicting accounts as to
the condition of the tile floor from when Mr. Hryciak first
walked down the hallway after he left the Bistro to use the
restroom to the time he walked to the elevator when he slipped.
Specifically,

in

his

recorded

audio

statement,

Mr.

Hryciak

stated that he walked down the hall to use the restroom and the
floor “didn’t look to be wet at all.”
stated:

13

(ECF No. 16-8, at 3).

He

I had just walked down that hallway not five
minutes before and it was you know, it
wasn’t slippery at all, well maybe ten
minutes before, it wasn’t slippery at all.
(Id.).

In his deposition, however, Mr. Hryciak stated that when

he first walked down the hall to the restroom, the floor “was
visibly wet so that [he] had to walk around it.”
at 24).

(ECF No. 17-1,

He stated that he saw a small puddle, two to three

inches in diameter, which he did not report to anybody in the
hotel.

(Id. at 25).

Mr. Hryciak testified in his deposition

that he had to make the same turn when he walked to the elevator
(when he slipped) as when he went to the restroom.2

(Id. at 29-

30).
Although

Mr.

Hryciak

indicated

during

the

recorded

call

that five to ten minutes passed from his first walk to the
restroom to his second walk to the elevator when he fell, he
stated in his deposition that fifteen to twenty minutes passed
between his return from the restroom and his decision to leave
the Bistro to go to the hotel room.

(Id. at 26).

As Defendant

argues, “there is an issue of fact as to whether 5 to 10 minutes
or 15 to 20 minutes passed between the first and second walk,
and whether there was sufficient opportunity for a Courtyard
employee

to

have

received

notice

2

of

a

dangerous,

slippery

Mr. Hryciak indicated that both the restroom and the
elevator were past the pool entrance. (ECF No. 17-1, at 30).
14

condition upon the floor, and whether Courtyard had a reasonable
opportunity to cure the allegedly dangerous condition.”
No. 16, at 15).

(ECF

Mr. Hryciak did not see any mopping or cleaning

of the floor area between the time he returned from the restroom
and when he got up again.

(ECF No. 17-1, at 27).

Based on the

foregoing, there are genuine disputes as to whether a hazardous
condition existed on the premises of which Defendant was or
should have been aware, and whether it was open and obvious to
Mr. Hryciak.
Defendant also argues that even if a hazardous condition
existed of which it was or should have been aware, there is at
least

a

genuine

dispute

as

to

whether

it

warning by placing three “Wet Floor” signs.

provided

adequate

Defendant submits a

floorplan of the Marriott Hotel, which shows the location where
Mr.

Hryciak

fell

and

purportedly were placed.

where

the

three

“Wet

Floor”

(ECF No. 16-4, at 3).

signs

Mr. Lizon

stated in his affidavit that three “Wet Floor” signs were placed
in locations that were visible from the area where the alleged
incident occurred.

(ECF No. 16-5 ¶ 4); (see also ECF No. 16-4 ¶

5, Winffel Aff. (“Further, I determined that after the floors
were mopped but before the alleged incident occurred, three “Wet
Floor” signs were placed in locations that were visible from the
area where the alleged incident occurred.)).

15

Mr. Hryciak, on

the other hand, provided the following deposition testimony as
to his recollection of the “Wet Floor” signs:
Q: Do you recall at any time th[e] day of
the incident seeing any wet floor signs or
any indication to you that the floors were
wet or had been wet?
A: In that area, no, not in that immediate
area. I believe, again, this could be -- I
could be mixing this up with other visits.
At the far end of the hall at times I have
seen wet floor signs and that is to the
entrance to the pool. The area that I fell
in, there was no sign and I would say -- if
there was a sign at the pool door, that
would have to be, and I’m estimating, maybe
50, 60 feet down the hallway.
Q: But you’re not sure whether there were
signs at the time that you fell?
A: I’m sure there were no signs where I fell
in that immediate vicinity, no signs to
indicate there was a wet floor where I was
walking.
(ECF No. 17-1, at 41-42) (emphases added).

Similarly, he stated

during the recorded call that there was a wet floor sign “all
the

way

down

the

end

of

the

hall

which

[he]

didn’t

notice

[until] we took a picture, all the way down at the end of the
hall, I guess down by where the, it was on the rug down by where
I take the door to go into the pool area.”

(ECF No. 16-8, at

4).
Whether the “Wet Floor” signs were visible is unclear from
the floorplan and the photographs on the record.

Mr. Hryciak

explained that he slipped on the tile floor as he “went to turn
16

the corner into the hall.”

(ECF No. 17-1, at 28).

It is not

clear whether Mr. Hryciak would have seen the “Wet Floor” sign
down the corridor as he rounded the corner to the right or that
the “Wet Floor” sign by the front desk (as indicated in the
floor plan) would have put him on notice of the condition of the
floor around the corner on the way to the elevator.

The record

also does not establish when the warning signs were placed.
Based

on

the

foregoing,

Plaintiffs’

motion

for

partial

summary judgment as to liability will be denied.
IV.

Conclusion
For the foregoing reasons, Plaintiffs’ motion for partial

summary judgment will be denied.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

17