Buck v. Acme Markets, Inc.

• Decision Date: 06 December 1982
• Docket Number: No. 1605,1605
• Citation: Buck v. Acme Markets, Inc., 53 Md.App. 151, 456 A.2d 47 (Md. App. 1982)
• Parties: Edward A. BUCK et ux. v. ACME MARKETS, INC. et al.
• Court: Maryland Court of Appeals

Page 151

53 Md.App. 151

456 A.2d 47

Edward A. BUCK et ux. v. ACME MARKETS, INC. et al.

No. 1605.

Court of Special Appeals of Maryland.

Dec. 6, 1982.

Certiorari Denied March 4, 1983.

Edward C. Mackie, with whom were Glenn W. Trimmer, and Rollins, Smalkin, Weston, Richard & Mackie, Baltimore, on the brief, for appellants.

William M. Nickerson, with whom were Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief, for appellee, Acme Markets.

John Llewellyn Hone, Silver Spring, with whom were David Preller, Sr., Preller & Preller, Baltimore, and Lipshultz & Hone, Silver Spring, chartered on the brief, for appellee, Green Investigation Associates, Inc.

Argued before MORTON, MASON and BISHOP, JJ.

MASON, Judge.

Appellants, Edward A. Buck and his wife (Buck), filed suit in the Superior Court of Baltimore City, alleging negligence against appellee, Acme Markets, Inc. (Acme) and Green Investigation Associates, Inc. (Green). After extensive discovery proceedings, appellees filed and were granted motions for summary judgment. Buck appeals and argues that the court erred in granting the motions for summary judgment because two material facts were genuinely in dispute.

1. Whether the area where appellant was injured was a public street; and

2. Whether the area where appellant was injured was within the possession and control of Acme Markets, Inc.

The record reveals that on 9 October 1978 between 7:30 and 8:00 p.m., Buck, while acting in the course of his employment for Taynton Freight Systems, delivered a truckload of food products to the Acme Markets Distribution Center in West Baltimore. Buck backed his tractor trailer into the loading dock of the Acme warehouse which abuts the westside of Smallwood Street. The trailer was positioned perpendicular to the loading dock, and the tractor was "jackknifed" toward Lafayette Avenue, leaving a sufficient area on Smallwood Street for other vehicles to pass. While the trailer was being unloaded, Buck was approached by two men who inquired if he needed help in unloading his truck. It was a common practice of independent truckdrivers to hire men off the street to assist in unloading their trailers. In fact, Buck recognized the two men as individuals who were hired by a companion driver to unload a trailer during a prior visit to Acme about six months earlier. After being told that no assistance was needed, one of the men told Buck that a window in the cab of his truck had been broken. When Buck went to the front of the tractor to inspect the cab window, he was shot in an attempted holdup.

I

Buck's contention that there was a genuine dispute as to whether the shooting occurred on a public street was based solely on the deposition of Officer Paul Sharpley which, in relevant part, reads as follows:

" 'A. ... The loading dock would be right here. This is the Acme warehouse. What throws me off on this map is you got Smallwood Street. I don't know how Smallwood Street comes in there.

....

A. I never knew, that would be the 900 block of Smallwood. As far as I know there is no 900 block of Smallwood. I never knew that. Is this an old map, sir?

Q. Is there not a street that runs alongside the loading dock area?

A. A street?

Q. Yes, that runs right up against the loading dock?

A. Here's a street I never knew was Smallwood Street. This is the Acme warehouse where the loading dock is. I'm familiar with this....

Q. You do not know the name of the street on which you turned right?

A. I never knew it was Smallwood. You got me on that. Smallwood, as long as I've been up there I never knew it as Smallwood Street. It's never even been posted. I never seen a posted street sign. Of course, there's no traffic goes up there except for the Acme trucks. It's not a public street, let's put it that way. I mean it's not used by anybody but Acme warehouse.

Q. You say this is not a public street?

A. As far as I know. You see, you are showing me Smallwood Street. I never knew that was Smallwood Street as long as I've been up there. I've been there 24 years and I never knew that was Smallwood Street.

....

A. I was not familiar with Smallwood Street there. If I got a call to the 900 block of Smallwood Street I would tell the dispatcher there's no such location.

....

(The Witness) You really surprised me, sir, on Smallwood Street. I've handled hundreds of calls there, in that area, but I never knew that was Smallwood Street. I just wondered where the information comes from. If this is a 1938 map, I don't know, you know, this could be an old map. Of course, I don't know how old the Acme warehouse is either.

....

Q. And after having looked at the map that Mr Nickerson exhibited and based on your 23 years of experience in that district, did you consider that loading dock area Smallwood Street?

A. No, sir.' "

The evidence submitted by Acme, which was undisputed, showed that Buck was shot on a public street, that title of the street was vested in the Mayor and City Council of Baltimore, and that the street was designated on city plats as the 900 block of Smallwood Street.

We think that Officer Sharpley's lack of knowledge that the street where the shooting occurred was a public street, i.e., 900 block of Smallwood Street, was completely irrelevant and lacked sufficient evidentiary value to create a triable issue of a material fact.

II

Buck also argues that there was a genuine dispute as to whether the area where he was injured was within the exclusive possession and control of Acme. The only evidence in the record that lends any support to this exclusive possession and control argument is that part of Officer Sharpley's deposition which states: "Of course, there's no traffic goes up there except for the Acme trucks. It's not a public street, let's put it that way. I mean it's not used by anybody but Acme warehouse."

Acme did not deny that it uses a substantial portion of Smallwood Street in conducting its business, but it denied it had exclusive control and possession of the street or that it was responsible for vehicular or pedestrian security on the street. Regarding Acme's possession and control of the area, a pertinent part of the deposition of William V. Skarzinksi, Distribution Manager, reads as follows:

"Q. And isn't it true, that Acme was almost the exclusive user of all of that area where the loading docks are located, north from Lafayette Avenue up to Mosher Street?

....

A. No, they weren't.

Q. Who else used it?

A. The public. There was no way I could keep the public from driving through there, or anybody else. They drove cars through there, they walked through there. It was a public street, is what it is.

....

Q. And would you agree that 90 per cent of more of the traffic, through, in, or out of that area, involved the business of Acme?

....

A. That is tough. I couldn't--I would say Acme had a good portion of it, but I wouldn't venture to say 90 percent.

Q. What would you say?

A. Maybe we could go--we could probably stretch it to 80."

In addition, Vernon Green, President of Green Investigation Associates, stated in his deposition and answers to interrogatories that his agency did not have the responsibility for keeping the area clear of loiterers, nor did it have a right to control vehicular traffic on the public streets surrounding Acme. If problems occurred on the public streets, the Police Department would be called.

As further evidence of Acme's lack of ownership and control of Smallwood Street, exhibits in the record show that Acme attempted to obtain permission from the City of Baltimore, before and after the shooting of Buck, to close Smallwood Street. The record also shows that on 9 January 1980, pursuant to a right of entry agreement with Baltimore City, Acme was given permission to close Smallwood Street between Lafayette Avenue and Mosher Street.

Again, we think that Officer Sharpley's unsupported assertion, i.e., "Of course, there's no traffic goes up there except for Acme trucks. It's not a public street, let's put it that way. I mean it's not used by anybody but Acme warehouse" lacked sufficient evidentiary value to establish the existence of a genuine dispute as to a material fact. "[F]acts proffered in opposition to the granting of a motion for summary judgment must not only be detailed and precise, but must be admissible in evidence, if there is to be a finding that there is a genuine dispute as to a material fact." Shaffer v. Lohr, 264 Md. 397, 404, 287 A.2d 42 (1972). Buck's bald allegation did not meet this test. Accordingly, we find that there was no dispute as to any material fact.

We now determine whether the trial court properly applied the law to the undisputed facts, which are as follows: That Buck was shot on a public street during an attempted robbery; that Acme used a substantial portion of this street in conducting its business, and that prior to this incident Acme had knowledge of numerous criminal acts that had occurred on its premises and the public streets in the surrounding area. Without citing any authority, Buck, in essence, argues that Acme's substantial use of the street on which he was shot by a third party makes Acme liable for his injuries irrespective of who held legal title to the street. We disagree.

In this state a proprietor of a commercial establishment owes a duty to a business invitee to maintain the premises in a reasonable safe condition and give warning of latent or concealed perils. Lloyd v. Bowles, 260 Md. 568, 572, 273 A.2d 193 (1972). This, however, does not mean that the proprietor has a duty to correct a hazardous condition created by strangers on an abutting public way or sidewalk. See Jenkins v. Atlantic & Pacific Tea Co., 128 F.Supp. 169 (D.Md.1955); Matyas v. Suburban Trust Co., 257 Md. 339, 263 A.2d 16 (1970). See also Litz v. Hutzler Bros. Co., 20 Md.App. 115, 123, 314 A.2d 693 (1974), where this Court rejected plaintiff's proffer showing that on three other occasions patrons...