Sampson v. United States of America et al
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
Civil Action No. DKC 15-0243
UNITED STATES OF AMERICA, et al.
Presently pending and ready for resolution in this tort
United States of America (the “United States”).
(ECF No. 41).
The issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
On March 4, 2012, Plaintiff Sharon Sampson (“Plaintiff”)
was walking with John Ford from a Popeye’s restaurant to the New
sidewalk at the corner of Harkins Road and Ellin Road in Lanham,
(ECF No. 41-2, at 9-10).
The United States owns the
property at the corner where Plaintiff fell, and the Internal
Unless otherwise noted, the facts outlined here are
undisputed and construed in the light most favorable to
Revenue Service is the tenant.
(ECF No. 41-4, at 6).
adjacent to the cover of a utility box.
injuries and other damages.
(ECF No. 41-2, at 9).
(ECF No. 1 ¶ 9-10).
Services Administration has neither accepted nor rejected the
(Id. ¶ 4).
On January 28, 2015, Plaintiff filed the
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
October 13, and the United States replied on October 31.
Nos. 42; 43).
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
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
dispute about a material fact is genuine “if the evidence is
undertaking this inquiry, a court must view the facts and the
favorable to the party opposing the motion,” Matsushita Elec.
(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
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.
Celotex, 477 U.S.
Therefore, on those issues on which the nonmoving
confront the summary judgment motion with an “affidavit or other
evidentiary showing” demonstrating that there is a genuine issue
See Ross v. Early, 899 F.Supp.2d 415, 420 (D.Md.
2012), aff’d, 746 F.3d 546 (4th Cir. 2014).
Plaintiff brings her claim under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 2671, et seq.
(ECF No. 1 ¶ 1).
[FTCA] requires the government’s liability to be determined ‘in
accordance with the law of the place where the act or omission
United States v. St. Louis Univ., 336 F.3d 294, 300
(4th Cir. 2003) (quoting 28 U.S.C. § 1346(b)(1)).
United States’ alleged failure to maintain the sidewalk occurred
in Maryland, Maryland law applies.
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
See Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 76
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
United States is responsible, she was a trespasser or a bare
licensee to whom only a minimal duty was owed; or (3) the defect
obvious to her.
(ECF No. 41-1, at 8-11).
Duty to Maintain Public Ways
protect Plaintiff because she fell on a public way maintained by
Prince George’s County, Maryland (the “County”).
(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)).
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
landowner to clear sidewalks of snow and ice, duty of care to
pedestrians remains with municipality and not landowner).
sidewalk at the corner of Harkins Road and Ellin Road is
municipally-maintained public way.
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.
42, at 5).
Pictures of the corner at which Plaintiff fell
attached to her deposition show a large expanse of sidewalk that
sidewalks leading toward the IRS building.
(See ECF No. 41-2,
It is not clear from looking at them where the
public way ends and the private sidewalk begins.
States argues that Plaintiff’s inconsistent deposition testimony
and uncertainty as to the precise location of her fall entitle
makes clear her allegation that she tripped on the IRS building
side of the utility box, a portion of sidewalk that could be
(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
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.
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
Plaintiff’s contention, as the bollard line follows a patch of
shrubs well inside the point where Plaintiff alleges that she
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.
(ECF No. 433, at 4).
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.
Plaintiff’s Premises Liability Status
The United States next argues that, even if Plaintiff was
trespasser or a bare licensee to whom only a minimal duty is
(ECF No. 43, at 6).
Under Maryland premises liability
recognized: invitee, licensee by invitation,
bare licensee, and trespasser.
Balt. Gas &
Elec. v. Lane, 338 Md. 34, 44 (1995).
invitee is a person “on the property for a
The possessor owes an
invitee a duty of ordinary care to keep the
possessor’s property safe.
by invitation is a social guest to whom the
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
injuring the licensee and from creating
“‘new and undisclosed sources of danger
without warning the licensee.’”
Doehring, 315 Md. 97, 102 (1989) (quoting
Sherman v. Suburban Trust Co., 282 Md. 238,
“Finally, a trespasser is one
who intentionally and without consent or
privilege enters another’s property.”
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.
Balt. Gas & Elec., 290 Md. 186, 190 (1981).
Balt. Gas & Elec. v. Flippo, 348 Md. 680, 688–89 (1998).
duty owed to a bare licensee or trespasser is only a duty “to
refrain from willfully or wantonly injuring the licensee and
quotation marks omitted).
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
a desired result.”
Doehring v. Wagner, 80 Md.App. 237, 246
(1989); accord Carter v. Balt. Gas & Elec. Co., 25 Md.App. 717,
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
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).
theory of mutual benefit extends invitee status to a person who
enters premises as a customer for a “business purpose.”
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).
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
It is also undisputed that Plaintiff was not a licensee by
invitation because she was not a social guest on the United
apparent holding out of the premises to a particular use by the
Crown Cork & Seal, 213 Md. at 159.
that she was an invitee under this theory.
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
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
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);
although the Restatement states that such travelers “do not
reasonably believes that the land is a highway” based on the
Restatement (Second) of Torts § 367, Special
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
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.
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.
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.
Id. at 245.
The circumstances of the instant case fall squarely into
the principle articulated in the Restatement and cases applying
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 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.”
Here, too, a jury could
property that she reasonably believed was a part of the public
Therefore, summary judgment is not appropriate on this
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).
According to one
The modern rule concerning the nature
of “open and obvious” dangers is embodied in
Restatement 2d, Torts § 343A(1) . . . .
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
anticipate the harm despite such knowledge
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
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.
Feldman, 2014 WL
determining whether a condition is open and obvious as a matter
Gellerman v. Shawan Rd. Hotel Ltd. P’ship, 5 F.Supp.2d
351, 353 (D.Md. 1998).
It is, however, “common knowledge that
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
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
passengers, dangers in the nature of traps.”
Pierce, 220, Md.
at 286; see also Mayor of Balt. V. Grossfeld, 173 Md. 197, 20001 (1937) (finding summary judgment was inappropriate because,
underneath the observable sidewalk defect).
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.
(ECF No. 42, at 8-9).
defects in certain circumstances, see Comm’rs of Balt. Cty. V.
Collins, 158 Md. 335, 338 (1930) (affirming that a plaintiff
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
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
must account for “the miscellany of activity normally found on a
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.
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
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.
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.
For the foregoing reasons, the motion for summary judgment
filed by Defendant United States will be granted.
order will follow.
DEBORAH K. CHASANOW
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?