Deering Woods v. Spoon, 123

• Decision Date: 06 October 2003
• Docket Number: No. 123,123
• Citation: 377 Md. 250,833 A.2d 17
• Parties: DEERING WOODS CONDOMINIUM ASSOCIATION et al. v. Margaret F. SPOON.
• Court: Maryland Court of Appeals

833 A.2d 17

377 Md. 250

DEERING WOODS CONDOMINIUM ASSOCIATION et al. v. Margaret F. SPOON.

No. 123, Sept. Term, 2002.

Court of Appeals of Maryland.

October 6, 2003.

David H. Bamberger (Edward S. Scheideman of Piper Rudnick, L.L.P., on brief), Washington, DC; Roger O. Robertson (Law Offices of Joseph M. Jagielski, on brief), Baltimore, for Petitioners.

Paul J. Weber (Joseph M. Alden of Hyatt, Peters & Weber, L.L.P., on brief), Annapolis, for Respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and LAWRENCE F. RODOWSKY, (retired, specially assigned), JJ.

RODOWSKY, Judge.

This slip on ice and fall case was brought against the condominium where the plaintiff resided, its management company, and against Columbia Association, Inc. (CA), the owner of adjoining land where the accident occurred. Summary judgments entered in favor of each defendant by the Circuit Court for Howard County were reversed by the Court of Special Appeals in an unreported opinion. This Court issued the writ of certiorari, primarily to determine whether a provision in the condominium bylaws effected a waiver of the plaintiff's claim. We find it unnecessary to answer that question because, as the trial court concluded, there is no legally sufficient evidence of constructive notice as to any defendant.

The Facts

The accident involved here occurred in the unincorporated city of Columbia in Howard County. CA, one of the petitioners, is a non-profit corporation which offers cultural, recreational, and community services programs to the residents of Columbia. CA owns about 3,000 acres of open space where it provides such amenities as pathways, bridges, playgrounds, and play areas. The open space basically is in stream valleys. The developed areas in Columbia, whether residential or commercial, eventually drain into one of the CA-owned stream valleys. Deering Woods Condominium Association (Condo), another petitioner, owns a residential condominium at 5665, 5667, and 5669 Harpers Farm Road in the Village of Harpers Choice, Columbia. The third petitioner, First American Management, Inc. (Mgmt. Co.), at all relevant times managed Condo.

Margaret F. Spoon, the respondent (Ms. Spoon), purchased Unit E in Condo's building at 5669 Harpers Farm Road in March 1992 but, due to employment overseas, did not begin uninterrupted residence there until March 1996.

Behind Condo's property is one of the stream valleys. Running parallel with the stream is an asphalt paved pathway, approximately six feet wide. The pathway is accessible from Condo by a sidewalk, which includes a flight of stairs, leading down to intersect the pathway. The area along the pathway and streambed is wooded. A person who has descended the stairway from Condo and turned to the left as one faces the streambed, walks in a short time to the place where the subject accident occurred (the Site). Roughly on a direct line drawn perpendicularly to the stream and running through the Site up the hillside to the elevation of Condo's buildings is Condo's parking lot. Surface water from that parking lot is collected and discharged through an outfall pipe into a drainage ditch filled with riprap. The drainage ditch extends down the hill and across the property line between the land owned by Condo and that owned by CA. The ditch or swale extends on the CA property approximately ten feet from the boundary to the side of the asphalt pathway. Water from the drainage ditch then passes, or was intended to pass, over the top of the pathway and to the stream.

The subject accident occurred on the morning of Sunday, January 12, 1997. Climatological data recorded at Baltimore-Washington International Airport reflects the following conditions there.¹ Date Maximum Minimum Snow on Ground Snowfall Temperature Temperature (Depth in Inches) Precipitation F F (Inches) --------------------------------------------------------------------------- Jan. 9 33 27 M 2.4 Jan.10 41 26 1.0 .6 Jan.11 32 18 2.0 2.0 Jan.12 26 14 T -- ----------------------------------------------------------------------------

At about 8:30 a.m. on January 12 Ms. Spoon took her dog for a walk, using her usual route which did not include the Site. Indeed, Ms. Spoon, prior to the accident, had never been to the Site. She was "afraid to go down in there" because she had known that "they had caught people down there" who had been "[a]ttacking or whatever." The walkways and parking lot on her usual route were clear, although there was snow on the untreated areas. Because her dog had not done its "business," Ms. Spoon decided to extend their walk. She went down the sidewalk to the stairway that descends toward the stream. The sidewalk and stairs had been cleared, and the stairway had been sanded.² The pathway that runs parallel with the stream had also been cleared of snow. Ms. Spoon, who was wearing snow boots, tested the surface of the pathway at the foot of the stairs and concluded that the pathway was free of ice. She walked along the path to the Site where she slipped on black ice and fell, sustaining bodily injuries.³

Ms. Spoon filed the instant action. By a scheduling order, the circuit court established dates for the close of discovery and for the filing of dispositive motions. Summary judgment motions were filed by Condo, Mgmt. Co., and later, with leave of court, by CA. The summary judgment record, insofar as it is relevant to any negligence of the petitioners, consists primarily of the depositions of Ms. Spoon and of Dennis Ellis (Ellis), the construction manager for CA.

At the time of his deposition in May 2000, Ellis had worked for CA for about twenty-eight years, fifteen of which as construction manager. He testified that there was nothing unusual about having surface water flow across CA open space to streams and that there were "literally thousands" of such crossings in Columbia. Ellis placed the construction of the subject pathway to "probably before" 1970. The drainage ditch was dug by the developer of Condo's premises. Ellis placed that work as having been done in the late 1970s or early 1980s. He had found a site plan showing an easement area over CA property at the Site for surface water in concentrated form from Condo's premises, but there is no recorded easement agreement.

At unspecified distances from the Site, on each of the upstream and downstream sides, there are also drainage ditches. At those two locations, in lieu of having surface water pass over the pathway, the runoff travels under the pathway through a culvert and to the stream. Ellis explained that over-the-surface drainage is used

"where the swale, basically, terminates at the pathway itself and the water is expected to drain across the pathway. And you want to make sure that you have positive drainage and that the pathway is tilted in such a way that the path—that the water runs across it and doesn't run back with a puddle of water and that sort of thing."

By positive drainage he means the absence of "ponding." In post-accident inspections of the Site, Ellis did not make any determination as to whether there was positive drainage "because it was basically dry conditions every time [he had] seen it and it looked pretty normal to [him]."

Ellis was not aware of any complaints to CA that there was not positive drainage flow over the pathway at the Site; he was not aware that anyone, other than Ms. Spoon, had fallen on the pathway in the area behind Condo's property; and he had no knowledge of any complaints about accumulations of ice on the pathway behind Condo's property.

Ellis was asked what measures, other than constructing a culvert, could be taken if the determination were made that "there is not a positive flow of water across the surface of the path." He responded that one method might be a "raised boardwalk or bridge situation" and another is to alter the grading and manipulate the direction of water. He further commented that he thought there was a physical impediment to the use of a culvert at the Site, because there is a manhole in the pathway for accessing a sanitary sewer under the pathway.

Ms. Spoon did not produce any expert opinion contradicting Ellis's views. Nor did she produce evidence of any complaints whatsoever or other form of actual notice to any petitioner about water ponding or ice formation at the Site.

The Procedural History

Ms. Spoon's complaint alleged that the petitioners had a duty "to use reasonable and ordinary care to maintain, manage and control the [Site] and to keep the [Site] safe from unreasonable risk of harm to [her]." This duty was breached, she alleged, by, inter alia, failure properly to drain the Site and negligently allowing a layer of ice "to remain atop the pavement on the [Site]."

Condo moved for summary judgment, raising only a defense of waiver of claim by Ms. Spoon based upon a provision in Condo's bylaws. At the same time, Mgmt. Co. moved for summary judgment, asserting as its sole ground that it had no obligation to clear ice or snow from CA property. When CA filed its motion for summary judgment it argued, inter alia, that there was no evidence that it had knowledge of any ice on the pathway. Ms. Spoon filed a written opposition to CA's request for leave to file the motion for summary judgment after the scheduling order deadline. Awaiting a ruling on that opposition, she did not respond to the merits of the tendered motion.

At a hearing on all of the motions for summary judgment, Condo and Mgmt. Co., who were both represented by the same counsel, argued that "[b]oth motions are found[ed] upon two basic principles.... First, there is the lack of any duty. Second, there is the lack of any notice." Next CA argued its motion for summary judgment, submitting that there was an absence of notice and that it "cannot be everywhere, all the time, to make sure that every drop of water doesn't become ice." Ms. Spoon responded.⁴ She argued that one could infer from the absence...