Rosemond v. Verizon Maryland, LLC

Filing 67

MEMORANDUM OPINION AND ORDER granting 62 Motion for Leave to Amend Plaintiff's Memorandum in Opposition to the Motion for Summary Judgment; denying 60 Motion for Summary Judgment and Request for Hearing; denying as moot 63 Joint Motion for Stay of All Discovery and Scheduling Order Deadlines; modifying Scheduling Order: Status Report Due 10/3/2018. Signed by Judge Roger W Titus on 6/12/2018. (jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARC ROSEMOND,
Plaintiff
v.
VERIZON MARYLAND, LLC, et al.,
Defendants

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* Case No. RWT-16-cv-3272
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MEMORANDUM OPINION AND ORDER
This case arises out of a trip-and-fall, in which Plaintiff Marc Rosemond (“Rosemond”)
suffered injuries after tripping on a loosened cable that lay across concrete steps outside of his
residence. See ECF No. 27. In order to provide television service to one of Rosemond’s
neighbors, the cable was allegedly placed above ground temporarily until a more permanent
cable could be buried under the sidewalk and connected to the provider’s hub.

See id.

Rosemond asserts that his injury was caused by the negligent placement of the cable by
Defendants Verizon Maryland, LLC (“Verizon”), Dycom Industries, Inc. (“Dycom”), Lambert’s
Cable Splicing Company, LLC (“Lambert”), and Wire Wizards, Inc. (“Wire Wizards”). See id.
On May 7, 2018, Wire Wizards filed a Motion for Summary Judgment and Request for
Hearing. See ECF No. 60.1 On May 18, 2018, Rosemond responded in opposition to that
Motion. See ECF No. 61. Based upon clerical errors and omitted pages, on May 21, 2018,
Rosemond moved for leave to amend and correct his opposition brief. See ECF Nos. 62, 62-3.2
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All parties requested that the Court stay proceedings pending the resolution of Wire Wizard’s Motion for Summary
Judgment [ECF No. 60] and a subsequent settlement conference to be scheduled. See ECF No. 63. The Court will
modify the scheduling order to provide additional time for a settlement conference.
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As illustrated by Defendants’ consent, see ECF No. 65, the swiftness of Rosemond’s Motion, and the clerical
nature of Rosemond’s amendments (correcting citations, omission of pages to exhibits, etc.), see ECF No. 62-3, the
Court finds that Rosemond’s amended brief does not contain substantive changes that would prejudice Wire
Wizards. Accordingly, the Court will grant Rosemond’s motion to amend his opposition brief [ECF No. 62].

On June 1, 2018, Wire Wizards replied in support of its original Motion. See ECF No. 66. The
issues have been fully briefed, and no hearing is necessary. Local Rule 105.6. For the reasons
that follow, Wire Wizards’ Motion for Summary Judgment shall be denied.
I.

Standard of Review
Summary judgment is proper under Fed. R. Civ. P. Rule 56(a) if there is no genuine

dispute over any material facts, and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Francis v. Booz, Allen & Hamilton, Inc.,
452 F.3d 299, 302 (4th Cir. 2006). A material fact is one that “might affect the outcome of the
suit under the governing law.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute
of material fact is genuine if the evidence would allow the trier of fact to return a verdict for the
nonmoving party. Id. When considering a summary judgment motion, the court has “an
affirmative obligation . . . to prevent ‘factually unsupported claims or defenses’ from proceeding
to trial.” Felty v. Grave-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (citing Celotex,
477 U.S. at 323-24). Thus, the court may only rely on facts supported in the record, not
assertions made in the pleading. Id. Moreover, the court must view all facts and make all
reasonable inferences in the light most favorable to the nonmoving party. Matsuhita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party must present more
than a “mere scintilla” of evidence to demonstrate a genuine issue of material fact that would
preclude summary judgment. Anderson, 477 U.S. at 252.
II.

Analysis
Wire Wizards asserts that there is no evidence that it “installed, moved, touched,

disturbed or otherwise did anything to the temporary cable wire” that caused Rosemond’s
tripping injury. See ECF No. 60-1 at 13. However, Wire Wizards supporting recitation of

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various witnesses’ testimony merely offers the side of the story that is most favorable to it, and
neglects the reasonable inferences that exist in this case’s remaining evidence. See id. at 4–11.
Indeed, this case rises and falls on the judicial standard for summary judgment—specifically,
“drawing all inferences in favor of the nonmoving party.” Hanwha Azdel, Inc. v. C & D Zodiac,
Inc., 617 F. App’x 227, 234 (4th Cir. 2015). Here, the nonmoving party is the injured plaintiff,
Rosemond. And while there is no direct evidence or eye-witness testimony that Wire Wizards
loosened the temporary cable and strew it over the concrete steps, a juror could infer such a
finding based on a reasonable construction of the evidence in the record.
It is uncontested that a “Verizon maintenance technician . . . placed the black temporary
cable on September 17, 2014.” See ECF No. 62-3 at 11 (Verizon’s Answers to Interrogatories).
There is, at a minimum, some evidence that the temporary cable was properly and safely secured
by the technician with the use of metal “J-hooks.” See id.; see also id. at 33–39 (Deposition of
the Verizon maintenance technician). It is uncontested that on September 19, 2014, a former
Wire Wizards employee “buried a permanent fios cable . . . which ran under the sidewalk.” See
id. at 13 (Wire Wizards’ Answers to Interrogatories). There is, at a minimum, some evidence
that Wire Wizards was the last service provider to attend to the concrete-step area where the
temporary cable resided. See id.; see also id. at 11 (Verizon’s Answers to Interrogatories). And
there is evidence that Rosemond tripped on the temporary cable, injuring himself in the fall. See
id. at 23–31 (Deposition of Rosemond).
In addition to this corroborating evidence, the record further includes photographs of the
area where the temporary cable was allegedly placed initially, see id. at 40, the overlapping area
where the permanent cable was allegedly buried, see id. at 20–22, and the final destination of
where the strewn temporary cable ended up, see id. at 32. Viewing all of this evidence in a light

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most favorable to Rosemond, and drawing all inferences in favor of Rosemond, a reasonable
juror could infer that Wire Wizards must have negligently dislodged the temporary cable into an
unsafe position that resulted in Rosemond’s tripping injury.3
While the evidence that Wire Wizards points to may be used at trial to strengthen its case
and attack the likelihood of its negligence, it may also be the subject of questionable credibility.
See, e.g., id. at 41–43 (Deposition of the Wire Wizards’ employee, who contradicts himself—
first saying that he did not remember whether he saw the temporary cable—and then later saying
that he did remember seeing it and consciously avoided disturbing it). Accordingly, granting
summary judgment in favor of either party at this juncture would be premature.
III.

Conclusion
For the foregoing reasons, Wire Wizards’ Motion for Summary Judgment shall be

denied. Accordingly, it is, this 12th day of June, 2018, by the United States District Court for the
District of Maryland,
ORDERED, that Plaintiff’s Motion for Leave to Amend Plaintiff’s Memorandum in
Opposition to the Motion for Summary Judgment of Defendant Wire Wizards, Inc. [ECF No. 62]
is hereby GRANTED; and it is further
ORDERED, that Defendants’ Motion for Summary Judgment and Request for Hearing
[ECF No. 60] is hereby DENIED; and it is further
ORDERED, that the Parties’ Joint Motion for Stay of All Discovery and Scheduling
Order Deadlines [ECF No. 63] is hereby DENIED AS MOOT; and it is further
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Wire Wizards’ entire Reply brief attacks the certitude of Rosemond’s evidence, concluding that “[t]hese photos
simply confirm that no one can state with absolute certainty the path either cable followed at the time prior to or
immediately after Wire Wizards completed their work and that absolutely no one knows the placement of the
temporary cable after Wire Wizards left up to the time of [Rosemond’s] alleged fall.” See ECF No. 66 at 3
(emphasis added). Indeed, Wire Wizards’ own words illustrate the existence of a genuine dispute as to material
facts, and at this stage, the Court must view all facts and make all reasonable inferences in the light most favorable
to Rosemond.

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ORDERED, that the Scheduling Order is hereby MODIFIED as follows:
Event

Original Date

Modified Date

Defendants’ Rule 26(a)(2) disclosures
Plaintiff’s rebuttal Rule 26(a)(2) disclosures
Rule 26(e)(2) supplementation of disclosures and
responses
Fact discovery deadline and submission of status
report
Expert discovery deadline
Requests for admission
Dispositive pretrial motions deadline

May 1, 2018
May 28, 2018

July 30, 2018
August 27, 2018

June 4, 2018

September 4, 2018

July 5, 2018

October 3, 2018

July 5, 2018
July 5, 2018
July 16, 2018

October 3, 2018
October 3, 2018
October 15, 2018

/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE

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