Sampson v. United States of America et al

Filing 44

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 7/17/2017. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
SHARON SAMPSON

:

v.

:

Civil Action No. DKC 15-0243

:
UNITED STATES OF AMERICA, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this tort
action

is

a

motion

for

summary

judgment

filed

United States of America (the “United States”).

by

Defendant

(ECF No. 41).

The issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
following

reasons,

the

motion

Local Rule 105.6.
for

summary

judgment

For the
will

be

granted.
I.

Background1
On March 4, 2012, Plaintiff Sharon Sampson (“Plaintiff”)

was walking with John Ford from a Popeye’s restaurant to the New
Carrollton

Metro

station

when

she

tripped

and

fell

on

the

sidewalk at the corner of Harkins Road and Ellin Road in Lanham,
Maryland.

(ECF No. 41-2, at 9-10).

The United States owns the

property at the corner where Plaintiff fell, and the Internal

1

Unless otherwise noted, the facts outlined here are
undisputed and construed in the light most favorable to
Plaintiff.

Revenue Service is the tenant.

(ECF No. 41-4, at 6).

claims

a

that

she

tripped

over

lip

between

adjacent to the cover of a utility box.
On
claim

February

for

28,

damages

Administration,

2014,

the

alleging

that

injuries and other damages.

United
the

sidewalk

panels

(ECF No. 41-2, at 9).

Plaintiff

with

Plaintiff

filed

an

States

fall

administrative

General

caused

Services

various

(ECF No. 1 ¶ 9-10).

bodily

The General

Services Administration has neither accepted nor rejected the
claim.

(Id. ¶ 4).

instant

suit

for

On January 28, 2015, Plaintiff filed the
negligence

against

the

United

States

and

Verizon Enterprise Solutions, LLC (“Verizon”), which Plaintiff
believed owned and maintained the utility box.

(ECF No. 1).

Verizon submitted affidavit evidence that it did not own or
operate the utility box in question, and its motion for summary
judgment was granted on August 20, 2015.

(ECF Nos. 8; 21; 22).

Plaintiff and the United States proceeded to discovery, and the
United States filed the instant motion for summary judgment on
September

26,

2016.

(ECF

No.

41).

Plaintiff

responded

October 13, and the United States replied on October 31.

on

(ECF

Nos. 42; 43).
II.

Standard of Review
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
2

as

a

matter

of

law.

See

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

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

250

(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).

A

dispute about a material fact is genuine “if the evidence is
such

that

a

nonmoving

reasonable

party.”

jury

could

a

Lobby,

Liberty

return

verdict

477

U.S.

at

for

the

249.

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.

(quoting

v.

Zenith

United

Radio

Corp.,

v.

Diebold,

States

475

U.S.

Inc.,

574,

369

587

U.S.

(1986)

654,

655

(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005), but a “party cannot create a genuine dispute
of

material

fact

through

inferences,”

Shin

v.

mere

Shalala,

speculation
166

or

F.Supp.2d

compilation
373,

375

of

(D.Md.

2001) (citation omitted).
To prevail on a motion for summary judgment, the moving
party generally bears the burden of showing that there is no
genuine dispute as to any material fact.

No genuine dispute of

material fact exists, however, if the nonmoving party fails to
make a sufficient showing on an essential element of her case as
to which she would have the burden of proof.
at 322–23.
party

has

Celotex, 477 U.S.

Therefore, on those issues on which the nonmoving
the

burden

of

proof,
3

it

is

her

responsibility

to

confront the summary judgment motion with an “affidavit or other
evidentiary showing” demonstrating that there is a genuine issue
for trial.

See Ross v. Early, 899 F.Supp.2d 415, 420 (D.Md.

2012), aff’d, 746 F.3d 546 (4th Cir. 2014).
III. Analysis
A.

Applicable Law

Plaintiff brings her claim under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 2671, et seq.

(ECF No. 1 ¶ 1).

“The

[FTCA] requires the government’s liability to be determined ‘in
accordance with the law of the place where the act or omission
occurred.’”

United States v. St. Louis Univ., 336 F.3d 294, 300

(4th Cir. 2003) (quoting 28 U.S.C. § 1346(b)(1)).

Because the

United States’ alleged failure to maintain the sidewalk occurred
in Maryland, Maryland law applies.
To

establish

a

prima

facie

case

for

negligence

under

Maryland law, a plaintiff must prove: (1) the defendant owed a
duty to protect the plaintiff from injury; (2) the defendant
breached that duty; (3) the plaintiff suffered an injury; and
(4)

the

defendant’s

breach

was

the

proximate

cause

of

the

injury.

See Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 76

(1994).

The United States argues that it is entitled to summary

judgment because (1) Plaintiff fell on a portion of the sidewalk
that was a public way for which the municipality is responsible;
(2) if Plaintiff was on a portion of the sidewalk for which the
4

United States is responsible, she was a trespasser or a bare
licensee to whom only a minimal duty was owed; or (3) the defect
in

the

sidewalk

obvious to her.

over

which

Plaintiff

tripped

was

open

and

(ECF No. 41-1, at 8-11).

B.

Duty to Maintain Public Ways

The

United

States

first

argues

that

it

had

no

duty

to

protect Plaintiff because she fell on a public way maintained by
Prince George’s County, Maryland (the “County”).
at 9).

(ECF No. 41-1,

Municipalities have a duty to keep public ways, both

streets and sidewalks, in a safe condition for public travel.
Bagheri v. Montgomery Cty., Md., 180 Md.App. 93, 98-99 (2008)
(citing Mayor of Balt. v. Eagers, 167 Md. 128 (1934)).
property

abuts

a

public

sidewalk

that

the

owner

When a
has

not

constructed, the duty to maintain it rests with the municipality
and not the abutting owner.

Leonard v. Lee, 191 Md. 426, 430–31

(1948); see also Weisner v. Mayor of Rockville, 245 Md. 225
(1967)

(noting

that,

even

where

a

municipality

requires

a

landowner to clear sidewalks of snow and ice, duty of care to
pedestrians remains with municipality and not landowner).
Plaintiff

does

not

contest

that

some

portion

of

sidewalk at the corner of Harkins Road and Ellin Road is
municipally-maintained public way.

the
the

Rather, she contends that

the place where she fell was on a portion of the sidewalk that
was beyond the area maintained by the municipality.
5

(ECF No.

42, at 5).

Pictures of the corner at which Plaintiff fell

attached to her deposition show a large expanse of sidewalk that
connects
running

four
along

individual
Harkins

walkways:

Road

and

the

Ellin

two
Road,

sidewalks leading toward the IRS building.
at 41-42).

public
and

sidewalks

two

private

(See ECF No. 41-2,

It is not clear from looking at them where the

public way ends and the private sidewalk begins.

The United

States argues that Plaintiff’s inconsistent deposition testimony
and uncertainty as to the precise location of her fall entitle
it

to

summary

judgment,

but

Plaintiff’s

deposition

testimony

makes clear her allegation that she tripped on the IRS building
side of the utility box, a portion of sidewalk that could be
considered private.

(ECF No. 41-2, at 10-11, 18-21).

The United States also provided deposition testimony from
Denise Green, the United States’ property manager for the IRS
building.

(ECF

No.

41-4).

Ms.

Green’s

testimony

that

the

County has done work on some portion of this sidewalk (Id. at 9)
does not suggest that the County is responsible for all of it.
Nor

does

her

testimony

that

the

County

planned

to

do

sixty

square feet of sidewalk replacement in that location (Id. at 12)
provide any insight without a calculation of the total square
footage of the expanse of sidewalk and the exact location of
those planned repairs.

Her testimony that her maintenance

responsibility ends at the line of bollards parallel to the
6

sidewalks

(Id.

at

10)

provides

a

clear

counterargument

to

Plaintiff’s contention, as the bollard line follows a patch of
shrubs well inside the point where Plaintiff alleges that she
fell.

The United States argues that Plaintiff has failed to

meet her burden on the duty element of her negligence claim
because she has not provided any evidence establishing where the
line between public and private sidewalk is and that she was on
the private portion.
that

the

United

sufficient here.

(ECF No. 433, at 4).

States

was

the

owner

Plaintiff’s evidence
of

the

property

is

A reasonable jury could determine that the

United States’ duty extended beyond the bollard line and that
the area where Plaintiff fell was beyond the public way portion
of the sidewalk.

There remains a factual dispute as to exactly

where Plaintiff tripped, and whether the United States or the
County had the duty to maintain that portion of the sidewalk.
C.

Plaintiff’s Premises Liability Status

The United States next argues that, even if Plaintiff was
beyond

the

municipally-maintained

public

way,

she

was

a

trespasser or a bare licensee to whom only a minimal duty is
owed.

(ECF No. 43, at 6).

Under Maryland premises liability

law:
[F]our
classifications
have
been
recognized: invitee, licensee by invitation,
bare licensee, and trespasser.
Balt. Gas &
Elec. v. Lane, 338 Md. 34, 44 (1995).
An
invitee is a person “on the property for a
7

purpose
related
to
the
possessor’s
business.”
Id.
The possessor owes an
invitee a duty of ordinary care to keep the
possessor’s property safe.
Id.
A licensee
by invitation is a social guest to whom the
“possessor
owes
a
duty
to
exercise
reasonable care to warn the guest of
dangerous conditions that are known to the
possessor but not easily discoverable.” Id.
A bare licensee is a person on the property
with permission, but for his or her own
purposes; the possessor owes no duty except
to
refrain
from
willfully
or
wantonly
injuring the licensee and from creating
“‘new and undisclosed sources of danger
without warning the licensee.’”
Wagner v.
Doehring, 315 Md. 97, 102 (1989) (quoting
Sherman v. Suburban Trust Co., 282 Md. 238,
242 (1978)).
“Finally, a trespasser is one
who intentionally and without consent or
privilege enters another’s property.”
Id.
As for a trespasser, even one of tender
years, no duty is owed except that the
possessor may not willfully or wantonly
injure or entrap the trespasser.
Murphy v.
Balt. Gas & Elec., 290 Md. 186, 190 (1981).
Balt. Gas & Elec. v. Flippo, 348 Md. 680, 688–89 (1998).

The

duty owed to a bare licensee or trespasser is only a duty “to
refrain from willfully or wantonly injuring the licensee and
from

creating

warning

the

new

and

undisclosed

licensee.”

Flippo,

quotation marks omitted).

sources
348

Md.

of
at

danger
689

without

(internal

Plaintiff has not argued that the

United States created the source of the danger or injured her
willfully or wantonly.

Nor could she, as Maryland cases have

generally required injurious conduct of a “deliberate nature . .
. i.e., conduct calculated to or reasonably expected to lead to

8

a desired result.”

Doehring v. Wagner, 80 Md.App. 237, 246

(1989); accord Carter v. Balt. Gas & Elec. Co., 25 Md.App. 717,
723-24

(1975)

(holding

that

installation

of

a

“virtually

invisible” wire fence across driveway to stop motorcyclists from
entering premises was not sufficient to show willful or wanton
intent to injure).

Thus, if Plaintiff was a trespasser or bare

licensee, she cannot show that the United States breached the
duty owed and she would lose on summary judgment.2

Plaintiff

claims, however, that she was an invitee.
Invitee status may be proven in two ways: (1) by a showing
of “mutual benefit,” or (2) by proof of an “implied invitation.”
Crown Cork & Seal Co. v. Kane, 213 Md. 152, 159 (1957).

The

theory of mutual benefit extends invitee status to a person who
enters premises as a customer for a “business purpose.”

Bass v.

Hardee’s Food Sys., Inc., 982 F.Supp. 1041, 1044 (D.Md. 1997)
(citing Howard Cty. Bd. of Educ. v. Cheyne, 99 Md.App. 150, 155
(1994)), aff’d, 229 F.3d 1141 (4th Cir. 2000).

Plaintiff does

not dispute that she was not providing a mutual benefit to the
United States at the time of her fall.

(ECF No. 42, at 7).

Under the theory of implied invitation, invitee status is
conferred
custom,

upon

the

a

person

acquiescence

“[f]rom

the

of

owner

the

2

circumstances,
in

habitual

such
use,

as
the

It is also undisputed that Plaintiff was not a licensee by
invitation because she was not a social guest on the United
States’ property.
9

apparent holding out of the premises to a particular use by the
public,

or

premises.”

simply

the

general

arrangement

or

Crown Cork & Seal, 213 Md. at 159.

that she was an invitee under this theory.

design

of

the

Plaintiff argues
She contends that

“[t]he configuration of the walkways and apron in front of 5000
Ellin Road . . . reasonably lead[s] those using the sidewalks
along the perimeter to believe that they are invited to continue
their journey to move across the area where plaintiff fell.”
(ECF No. 42, at 7).
Although Plaintiff relies on language from Crown Cork &
Seal, the Court of Appeals of Maryland in that case specifically
noted that the theory of implied invitation “rested, in whole or
in part, upon circumstances indicating at least some economic
benefit.”

Crown

Cork

&

Seal,

213

Md.

at

159–60.

More

applicable here is the principle that:
A possessor of land who . . . knows or
should know that others will reasonably
believe it to be a public highway is subject
to liability for physical harm caused to
them, while using such part as a highway, by
his failure to exercise reasonable care to
maintain it in a reasonably safe condition
for travel.
Restatement (Second) of Torts § 367 (1965).

Some courts have

referred to this principle as the “misled invitee doctrine,” see
Epling v. United States, 453 F.2d 327, 329-30 (9th Cir. 1971);
Lin

v.

Nat’l

R.R.

Passenger

Corp,

10

277

Conn.

1,

11

(2006),

although the Restatement states that such travelers “do[] not
fall

within

customary
instead,

to

any

of

place

“liability

the

classifications

persons

entering

depend[s]

upon

under

which

[another’s]
the

fact

it

land,”

that

the

is

and,
other

reasonably believes that the land is a highway” based on the
owner’s conduct.

Restatement (Second) of Torts § 367, Special

Note.
Although the parties failed to cite to it, at least one
Maryland decision has addressed this principle.

In Doehring v.

Wagner, 80 Md.App. 237, 242-45 (1989), the Court of Special
Appeals of Maryland chose not to apply the doctrine given that
the

trial

court

had

failed

to

make

any

findings

as

to

the

appearance of the adjacent driveway, but the court indicated
that the doctrine might apply “where a possessor of land has
paved a strip of his land adjoining a public highway so that it
appears to be a part of the highway.”

Id. at 243.

The court

went on to note that the last two factors under Crown Cork &
Seal “deal with the appearance of the premises [and] address the
same concerns as Restatement § 367.”

Id. at 244 n. 4.

It

further stated that, “[i]n an appropriate case, the combined
effect of an owner’s acquiescence in the presence upon his land
of strangers, plus affirmative findings as to the [] factors
enunciated in Crown [Cork & Seal], may have some impact on the
status of an individual” under the doctrine.
11

Id. at 245.

The circumstances of the instant case fall squarely into
the principle articulated in the Restatement and cases applying
it.

In Sedita v. Steinberg, 134 A. 243, 244 (Conn. 1926), for

example, the Supreme Court of Errors of Connecticut reversed the
lower court’s determination that the plaintiff was a trespasser
on a portion of sidewalk because it was “all of concrete, of
grade with, and not marked off from, the sidewalk proper, and
[the hazard was] about five feet inside the imaginary line of
the sidewalk.”

The court held that a reasonable jury might have

found the sidewalk “open for the use of all travelers who might
choose to avail themselves of it.”
find

that

Plaintiff

was

on

a

Id.

portion

Here, too, a jury could
of

the

United

States

property that she reasonably believed was a part of the public
way.

Therefore, summary judgment is not appropriate on this

ground.
D.

Open and Obvious Risk

Finally, the United States argues that, even if Plaintiff
were an invitee, it had no duty to protect her from any risk
that was open and obvious to her.

Under the “open and obvious”

doctrine, a plaintiff is responsible for “exercising due care
for [his or her] own safety, which includes a duty to look and
see what is around.”

Feldman v. NVR, Inc., No. GJH-14-0672,

2014 WL 6066022, at *3 (D.Md. Nov. 12, 2014).
treatise:
12

According to one

The modern rule concerning the nature
of “open and obvious” dangers is embodied in
Restatement 2d, Torts § 343A(1) . . . .
According
to
this
provision
of
the
Restatement, “[a] possessor of land is not
liable to his invitees for physical harm
caused to them by any activity or condition
on the land whose danger is known or obvious
to
them,
unless
the
possessor
should
anticipate the harm despite such knowledge
or obviousness.”
The comments to § 343A(1)
state that “‘[o]bvious’ means that both the
condition and the risk are apparent to and
would be recognized by a reasonable man, in
the position of the visitor, exercising
ordinary
perception,
intelligence,
and
judgment.”
George E. Powell, Jr., 41 Am. Jur. Proof of Facts 3d 65 (1997);
see also Pfaff v. Yacht Basin Co., 58 Md.App. 348, 354 (1984)
(applying Restatement standard).
Whether a condition is open and obvious is typically a
question for the factfinder, but a court may rule as a matter of
law when it is clear that any reasonable person in a plaintiff’s
position must have understood the danger.
6066022,

at

*3.

There

is

no

“exact

Feldman, 2014 WL

test

or

formula”

for

determining whether a condition is open and obvious as a matter
of law.

Gellerman v. Shawan Rd. Hotel Ltd. P’ship, 5 F.Supp.2d

351, 353 (D.Md. 1998).
small

cracks,

holes

It is, however, “common knowledge that
and

uneven

spots

often

develop

in

pavement[,] and it has been held that where there is nothing to
obstruct or interfere with one’s ability to see such a ‘static’
defect, the owner or occupier of the premises is justified in
13

assuming

that

a

involved.”

visitor

Id.

will

see

Pedestrians

it

are

and

thus

realize
“bound

the

to

risk

protect

themselves against any of the regular uses and obstructions, and
comparative roughness of the ground.”

Pierce v. City of Balt.,

220 Md. 286, 290 (1959); accord Coleman v. United States, 369
F.App’x 459, 462 (4th Cir. 2010).

A landowner’s duty extends not

to “customary, permissible uses or conditions,” but rather to
“dangers

of

a

kind

that

would

not

be

expected

passengers, dangers in the nature of traps.”

by

foot

Pierce, 220, Md.

at 286; see also Mayor of Balt. V. Grossfeld, 173 Md. 197, 20001 (1937) (finding summary judgment was inappropriate because,
unlike

most

sidewalk

cases,

there

was

a

latent

soft

spot

underneath the observable sidewalk defect).
Plaintiff

argues

that

the

sidewalk

condition

was

not

obvious to her because she was looking straight ahead and Mr.
Ford and another woman on the sidewalk were blocking her view of
certain portions of the ground.
pedestrians

may

be

excused

(ECF No. 42, at 8-9).

from

observing

open

Although

and

obvious

defects in certain circumstances, see Comm’rs of Balt. Cty. V.
Collins, 158 Md. 335, 338 (1930) (affirming that a plaintiff
“walking

slowly

and

carefully”

was

excused

from

seeing

a

sidewalk defect because it was night and the closest streetlight
was 400 feet away); Denbow v. Chesapeake & Potomac Tel. Co., 199
Md. 609, 611-12, 619 (1952) (denying summary judgment where the
14

plaintiff fell into an open manhole because there was evidence
that two people guarding the manhole distracted plaintiff, one
stepping in his way and forcing him to change course into the
manhole’s

direction),

a

plaintiff

exercising

reasonable

care

must account for “the miscellany of activity normally found on a
public sidewalk.”

Scott v. Sears, Roebuck & Co., 789 F.2d 1052,

1054 (4th Cir. 1986) (applying Virginia law); accord Schaefer v.
United States, No. PX-15-2690, 2017 WL 2506174, at *3 (D.Md.
June

9,

2017);

Gellerman,

5

F.Supp.2d

at

353-54.

Other

pedestrians on a sidewalk are clearly among the normal activity
that can be expected and are not a sufficient distraction to
excuse a pedestrian’s failure to see what is in front of her.
See Schaefer, 2017 WL 2506174, at *3; see also Gellerman, 5
F.Supp.2d at 353-54 (finding that moving vehicles in a parking
lot were an expected distraction that would not excuse a failure
to see a gap at the curb between a sidewalk and the parking
lot).

Far from being “in the nature of a trap,” Pierce, 220,

Md. at 286, other pedestrians are an entirely common condition.
As noted above, the open and obvious doctrine imposes a duty on
a plaintiff to exercise due care for her own safety.

In this

instance, that duty required her to account for both visible
defects and other pedestrians.

Because she failed to do so, the

United States’ motion will be granted.

15

IV.

Conclusion
For the foregoing reasons, the motion for summary judgment

filed by Defendant United States will be granted.

A separate

order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

16