Vason v. Board of Education of Montgomery County
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 1/31/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. DKC 15-2228
BOARD OF EDUCATION OF
Presently pending and ready for resolution are a motion for
Montgomery County (“Defendant”) (ECF No. 14), and a motion by
surreply to Defendant’s motion for summary judgment (ECF No.
The issues have been fully briefed, and the court now
rules, no hearing being deemed necessary.
Local Rule 105.6.
For the following reasons, both motions will be granted.
Elementary School in Montgomery County to drop off her grandson,
a student at the school.
(ECF No. 14-2, at 2).
As she walked
concrete sidewalk leading up to the entrance of the school and
Unless otherwise noted, the facts outlined here are
undisputed and construed in the light most favorable to
Additional facts are discussed in the analysis
fell to the ground.
(Id. at 3).
Plaintiff alleged that the
fall caused numerous physical injuries, shock to her nerves and
(ECF No. 1 ¶ 12).
On July 29, 2015, Plaintiff filed the instant suit for
property, she contends that Defendant owed her a duty of care to
inspect pedestrian walkways periodically for defects like the
one she tripped over, and, in turn, to repair such defects or to
warn invitees about them.
(Id. ¶ 10; ECF No. 15-1, at 4).2
breached these duties by allowing her to use the sidewalk in its
defective condition, which was the cause of her injuries.
No. 1 ¶¶ 11, 12).
Defendant filed the instant motion for summary judgment on
March 16, 2016.
(ECF No. 14).
Plaintiff responded on April 4,
Plaintiff has now moved to file a surreply.
(ECF No. 22).
Motion for Leave to File a Surreply
Under Local Rule 105.2(a), “[u]nless otherwise ordered by
the Court, surreply memoranda are not permitted to be filed.”
surreply may be permitted “when the moving party would be unable
Defendant does not dispute that Plaintiff was an invitee
on the sidewalk.
(See ECF No. 14-1, at 7 (citing open and
obvious standard for invitees)).
to contest matters presented to the court for the first time in
the opposing party’s reply.”
Khoury v. Meserve, 268 F.Supp.2d
600, 605 (D.Md. 2003) (citation omitted).
By contrast, “[a]
motion for leave to file a surreply may be denied when the
matter addressed in the reply is not new.”
Marshall v. Capital
View Mut. Homes, No. RWT–12–3109, 2013 WL 3353752, at *3 (D.Md.
July 2, 2013) (citation omitted).
Plaintiff’s expert witness, Allen M. Bissell.
(ECF No. 15-6).
That report is dated March 23, 2016, nearly a month after the
parties’ discovery deadline of February 26 and a week after
Defendant filed its motion for summary judgment.
15-6, at 1; 16 ¶ 2).
(See ECF Nos.
The report contained new opinions about
the size of the sidewalk defect and the effect of the sun’s
position at the time of the accident on Plaintiff’s ability to
see the defect.
(ECF No. 15-6, at 1-2).
Defendant filed a
alternatively, to allow it to supplement its motion for summary
judgment to include arguments based on the triviality of the
(ECF No. 16 ¶ 12).
On April 26, Defendant’s motion was
including arguments related to the supplemental report in its
Plaintiff could thereafter move for leave to file a surreply.
supplemental report to argue that the defect in the sidewalk was
too trivial for it to be held liable.
Plaintiff filed her
instant motion on May 13, and Defendant has consented to the
Plaintiff’s motion for surreply will be granted.
III. Motion for Summary Judgment
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).
Summary judgment is inappropriate if any material factual issue
“may reasonably be resolved in favor of either party.”
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
dispute as to any material fact.
If the nonmoving party fails
to make a sufficient showing on an essential element of the case
as to which the party would have the burden of proof, however,
then there is no genuine dispute of material fact.
nonmoving party has the burden of proof, it is that party’s
responsibility to confront the summary judgment motion with an
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.
“A mere scintilla of proof . . . will not suffice to
prevent summary judgment.”
(4th Cir. 2003).
Peters v. Jenney, 327 F.3d 307, 314
“If the evidence is merely colorable, or is not
Liberty Lobby, 477 U.S. at 249–50 (citations omitted).
words, a “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”
Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted);
see Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514,
Indeed, this court has an affirmative
obligation to prevent factually unsupported claims and defenses
from going to trial.
(4th Cir. 1993).
See Drewitt v. Pratt, 999 F.2d 774, 778–79
At the same time, the court must construe the
facts that are presented in the light most favorable to the
party opposing the motion.
Scott v. Harris, 550 U.S. 372, 378
(2007); Emmett, 532 F.3d at 297.
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
evidence must show that: (1) a dangerous condition existed; (2)
the defendant had actual or constructive knowledge of it; and
(3) such knowledge was gained in sufficient time to give the
defendant the opportunity to remove it or to warn of it.
Maans v. Giant of Md., LLC, 161 Md.App. 620, 629 (2005).
defendant’s duty to those using sidewalks under its control “is
not that of an insurer of their safe passage.”
Martin v. Mayor
& Council of Rockville, Md., 258 Md. 177, 182 (1970) (quoting
Leonard v. Lee, 191 Md. 426, 431 (1948)).
A landowner “only has
a duty to exercise reasonable care to protect the invitee from
injury caused by an unreasonable risk that the invitee would be
unlikely to perceive in the exercise of ordinary care for his or
her own safety.”
Tennant v. Shoppers Food Warehouse Md. Corp.,
115 Md.App. 381, 388 (1997) (citing Casper v. Charles F. Smith &
Son, Inc., 316 Md. 573, 582 (1989)).
Defendant argues that it is entitled to summary judgment
because the lip in the sidewalk was too trivial to hold it
liable for her injuries, or, alternatively, because the risk of
the defect was open and obvious to her.
Doctrine of Triviality
Maryland courts have applied a doctrine of triviality to
defects that were “slight, minor or inconsequential.”
258 Md. at 183.
Under these cases, “slightly irregular defects
do not subject municipalities to liability for negligence.”
at 181; see also id. at 183 (“Minor defects or obstructions are
Municipal Corporations § 54.80(c) (rev. ed. 1967))).
unclear from the case law where exactly triviality fits into the
negligence rubric for premises liability.
Some cases seem to
indicate that trivial defects are not hazardous enough to be a
dangerous defect, and thus cannot constitute a breach by the
See Coleman v. United States, 369 F.App’x 459, 461-
Cir. 2010) (unpublished opinion) (questioning whether
difference between the defect and an ordinary sidewalk was so
slight that no jury could find the municipality guilty of a lack
of reasonable care for not fixing it).
Several courts seem to
municipality if it were required to keep its sidewalks in a
Anne v. Kelly, 200 Md. 268, 273 (1952), thus narrowing the scope
of the municipality’s duty and expanding the types defects that
reasonable care for her own safety.
See Cordish v. Bloom, 138
Md. 81, 85 (1921) (“No city, town, or village could maintain a
perfectly level or even surface in all of its sidewalks without
burdening the property owners with unreasonable and unnecessary
No resident or visitor of a city, town, or village
has the right to expect such conditions.”)
Still other courts
appear to have considered triviality in the context of notice to
the municipality, recognizing that constructive notice of the
defect ought not to be chargeable “if the defect is so minor as
to make discovery unlikely.”
Martin, 258 Md. at 182 (construing
Leonard, 191 Md. 426); see also Keen v. City of Havre de Grace,
93 Md. 34, 39 (1901) (“If the effect be of such a character as
not to be readily observable, express notice to the municipality
must be shown.”).
Regardless of where triviality should be
considered, Maryland law is clear that some small defects are
not actionable as a matter of law.
Often, these defects are
similar to the one seen here in that they develop over a period
of time from slow changes to the ground beneath them.
Martin, 258 Md. at 181 (noting that “the sidewalk had simply
been worn down over a period of time”); Cordish, 138 Md. at 85
(“Pavements will in time become irregular and uneven from roots
of trees, heavy rains and snows, or other causes.”).3
Defendant argues that the defect in this case is similar to
those identified in cases applying the doctrine of triviality.
Defendant points to Martin, in which the court reviewed other
cases and noted that the doctrine has been applied to sidewalk
defects, loosened bricks, broken cement blocks, and other holes.
258 Md. at 183.
Plaintiff’s expert suggests that the defect
here was only three-eighths of an inch tall.
(ECF No. 15-6).
maintains, it would have to impose the same burdens on taxpayers
unnecessary” in Cordish.
138 Md. at 85.
particular defect should not be placed in the trivial category.
contends only that that the defective lip “ran along the entire
Defendant points out, a lip this small, no matter how long it
runs, is permissible under the Americans with Disabilities Act,
Plaintiff’s expert suggested that the defect here likely
developed over the course of two or three years from water
seeping down into the crack between concrete slabs and
permeating the earth underneath one slab, which would cause it
to sink. (ECF No. 15-2, at 2).
42 U.S.C. § 12101, et seq., (“ADA”), see 36 C.F.R. § 1191.1;
Dep’t of Justice, 2010 ADA Standards for Accessible Design §
Code, see Md. Code Regs. 14.03.02.10 (2016) (incorporating ADA
defect is “traversable” and does not constitute any kind of
hazard under these federal and state standards.
(ECF No. 21-2,
Plaintiff cites to no cases suggesting that lips of the
size in question should not be considered trivial.
that the court has found is County Commissioners of Baltimore
County v. Collins, 158 Md. 335, 336 (1930), in which the Court
of Appeals held that an elevated sidewalk edge of one and onequarter inch was “an impediment to the reasonably safe use” of
This decision does not portend that any defect not
In the context of sidewalks, however,
where it is clear under Maryland law that not all defects are
actionable and that some small defects should be expected, these
laws – both balancing, as the court does here, the duties of
traversable paths against the burdens of trying to make
sidewalks entirely defect-free - provide a helpful benchmark for
understanding what is trivial and what is not.
That lip was more than three times the size of
the one in question here and more than twice the aforementioned
limit under Maryland law and the ADA.
In the scope of such
small measurements, these differences are significant.
Finding that a defect is trivial does not mean that it is
incapable of causing harm.
In the cases in which the doctrine
has been applied, the plaintiffs had been injured by the defect;
in some cases, other people had previously been injured as well.
warning of such a defect.
As a matter of law, it is trivial,
and, therefore, Defendant’s motion for summary judgment will be
Open and Obvious Risk
Alternatively, Defendant argued initially, based primarily
on Plaintiff’s own testimony, that the defect in the sidewalk
was “open and obvious.”
(ECF No. 14-1, at 8-10).
The decision of the Court of Appeals in Martin, without
directly addressing the earlier cases, seems to cast doubt on
some “previous Maryland cases [that] had allowed relatively
slight depressions to furnish a basis for liability.”
258 Md. at 183. Collins was one such decision. See id. (citing
Kelly, 200 Md. at 272).
To the degree that Martin hints that
Collins might be wrongly decided, the Martin court’s analysis
suggests that the cases it references construed the doctrine of
triviality too narrowly.
Thus, the more recent opinion of the
Court of Appeals in Martin, would lend support to the decision
that the defects described here are trivial.
“open and obvious” doctrine, “the invitee is responsible for
exercising due care for their own safety, which includes a duty
to look and see what is around.”
Feldman v. NVR, Inc., No. GJH*3
According to one treatise:
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
Plaintiff admits that the area where she tripped was clear
of obstructions and well-lit.
(ECF No. 14-2, at 7, 8, 11).
acknowledges that she had a duty to look out for defects in the
sidewalk but argues that this specific defect was hidden from
(ECF No. 15-1, at 6-8).
Considering the combination of
the defect’s small size, Plaintiff’s angle of approach, and the
absence of a shadow from the defect, her expert suggests that a
easily [have] interpret[ed] the line as the continuation of the
line of [level] sidewalk sections she had already encountered.”
(ECF No. 15-6).
The thrust of Plaintiff’s argument is that,
although she was watching for dangerous conditions, the defect
here was too small to see – a “mere” three-eighths of an inch
according to her expert.
Plaintiff’s argument as to the “unobviousness” of the
defect actually supports Defendant’s contention that this defect
Plaintiff’s expert contends, and the exhibit
photos show, that the defect was small. (ECF Nos. 15-1, at 7).
Plaintiff bemoans having to navigate the fine line between
sidewalk conditions that are open and obvious and those that are
slight and trivial.
(ECF No. 23, at 2).
“[If the] fact that
the alleged dangerous condition is not likely to be discovered
by the Plaintiff with the exercise of reasonable care [made] the
condition ‘slight or trivial[,]’ . . . there would never be any
liability for any property owner under any circumstances, since
obvious’ or ‘slight and trivial.’”
Because courts have
found that pedestrians must expect defects on sidewalks under
both doctrines, the two inquiries overlap.
Indeed, one court
has even stated that “there could not be any inherent lack of
unless it was broken or was in such a condition that it was
Leonard, 191 Md. at 434.
theories necessarily resolve all cases against plaintiffs.
whether a plaintiff is exercising reasonable care when there is
He also states that approaching the seam in a parallel direction
made this small height differential less visible than it would
have been if she approached from a perpendicular angle.
No. 15-6, at 1).
Finally, he maintains that the angle of the
sun would have made the shadow cast by the defect smaller, and
the light reflecting off the building would have reduced the
darkness of the shadows, such that the shadow would not reveal
the defect’s presence. (Id. at 2).
a dangerous condition, whereas the triviality doctrine relates
necessary to decide categorically whether Plaintiff’s claim is
obvious” to her as that phrase applies to sidewalks.
the so-called defect here was not unreasonably dangerous under
the triviality doctrine, Plaintiff cannot show that Defendant
failed to exercise reasonable care, and Defendant is entitled to
For the foregoing reasons, Plaintiff’s motion for leave to
summary judgment will be granted.
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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