Houston v. Safeway Stores, Inc.

Decision Date01 September 1996
Docket NumberNo. 64,64
CourtMaryland Court of Appeals

Lawrence S. Lapidus (Jack A. Gold, Karp, Frosh, Lapidus & Wigodsky, P.A., on brief), Bethesda, for Petitioner.

L. Palmer Foret (Craig L. Davitian, Foret & Thompson, on brief), Washington, DC, for Respondent.

Ralph J. Savarese (Roger A. Klein, Howrey & Simon, on brief), Washington, DC, Amicus Curiae.



The question presented in this appeal is whether the Court of Special Appeals erred in affirming the trial court's entry of a judgment notwithstanding the verdict and in construing Maryland Code (1974, 1995 Repl.Vol.), Courts & Judicial Proceedings Article, § 5-378 (hereinafter " § 5-378"). We shall address both issues simultaneously, and, for the reasons set forth below, we shall reverse the judgment of the intermediate appellate court.


On September 16, 1992, Petitioner, Carrie Houston, was shopping at a Safeway grocery store in Lanham, Maryland. She asked a Safeway employee whether there was a restroom available for her use. She was instructed to walk to the back of the retail floor and to pass through a set of double doors. Behind the double doors is a storeroom or warehouse area. While searching for the restroom in the warehouse area, Petitioner slipped on a piece of twine commonly used to strap milk or juice containers onto pallets for shipment. She fell to the floor and suffered an injury that required the amputation of one toe. Houston v. Safeway, 109 Md.App. 177, 181, 674 A.2d 87, 89 (1996).

Petitioner filed suit against Safeway alleging that it breached the applicable standard of care by failing to maintain its premises in a safe condition. Safeway argued that it was immune from civil liability pursuant to § 5-378. That section, entitled "[Immunity]--Customer use of employee toilet facility in retail establishment," states "(a) Definition.--In this section 'customer' means an individual who is lawfully on the premises of a retail establishment.

(b) In general.--A retail establishment and any employee of a retail establishment are not civilly liable for any act or omission in allowing a customer, including a customer as defined in § 24-209 of the Health-General Article, to use a toilet facility that is not a public toilet facility, if the act or omission:

(1) Is not willful or grossly negligent;

(2) Occurs in an area of the retail establishment that is not accessible to the public; and

(3) Results in an injury to or death of the customer or any individual other than an employee accompanying the customer.

(c) Employee toilet not public restroom.--Notwithstanding any provision of this section, an employee toilet facility is not to be considered a public restroom."

The case was bifurcated, and a jury trial on the issue of liability was held in the Circuit Court for Prince George's County before the Honorable Audrey E. Melbourne. A bench conference was held early in the proceedings to determine the issues that each party's experts would be permitted to address. The judge stated that the experts would be allowed to testify as to the applicable standard of care but would not be allowed to express an opinion as to whether the restroom was public. The judge stated at this time and again later in the trial that whether the restroom was public was an issue properly left to the decision of the jury, without the aid of opinions by "experts."

A great deal of conflicting evidence was presented at trial on the question of whether the restroom at issue should be considered a "public" restroom. Mr. James Nelson, Safeway's expert in safe building design, materials, and maintenance, testified that the Lanham Safeway is divided into two areas, the retail area and the support area. In the retail area, where items are displayed for purchase, customers are free to move about without restriction. Mr. Nelson testified that the retail area is well-lit by a "drop light ceiling system," and the floors are covered with vinyl tile. The walls in this area are finished and painted, and they have "graphics identifying where produce and deli and various items are." There are no restrooms for customer use in the retail area.

Behind the retail space, through the aforementioned double doors, is the support area, where shipments are received and stored until ready to be displayed in the retail area. Safeway employees are solely responsible for maintaining this space. The support area differs in look and feel from the retail area. The floors are sealed concrete, and the ceiling is unfinished. The toilet that Petitioner was directed to is located in the support area, on the first floor, approximately ninety feet from the double doors that separate the area from the retail floor. The facility is labeled "restroom," and it is the only toilet facility in the store that is equipped for use by handicapped persons.

Safeway has two other toilet facilities, located on the second floor of the support area, labeled "men's" and "ladies," respectively. The evidence presented at trial suggests that Safeway employees generally use these restrooms instead of the first-floor restroom. Adjacent to the second-floor restroom is an employee lounge with a television, a videocassette recorder, vending machines, and lockers available for employee use. The second-floor restrooms are kept unlocked when not in use. Customers and members of the public were never directed to the second-floor restrooms; rather they were directed exclusively to the first-floor restroom.

Whether customers are routinely permitted to pass through the double doors and use the first-floor restroom without permission was disputed at trial. Safeway contends that anyone who wishes to use the first-floor restroom is required to ask permission first. This contention is supported by evidence that there was a sign posted at all times on the double doors that read "no admittance." There is some evidence in the record, however, that the doors were sometimes kept open and, if so, that customers could not read the sign from the retail floor. Mr. Lawrence Dinoff, Petitioner's expert in building design and maintenance, testified that he visited Safeway after Petitioner filed this action and asked an employee if he could use a restroom in the store. He had no cart or basket and in no way attempted to identify himself as a customer. The employee instructed Mr. Dinoff to pass through the double doors and look for the restroom. Mr. Dinoff testified that on the day of his visit, the double doors were blocked open by boxes and the "no admittance" sign was not at all visible from the retail floor. Safeway acknowledges that there is no clear evidence in the record as to whether the double doors were blocked open on the day Petitioner was injured or as to how often they were blocked open generally.

Petitioner contends that customers need not ask permission to use the restroom at all but that they may have to ask where the restroom is located. If someone is familiar with the store, Petitioner argues, he or she can pass through the double doors and use the restroom without asking for permission first. Petitioner's daughter, Angela Houston, testified that she used the first-floor restroom many times, although it is not clear from the record whether she ever asked permission after the first time that she used the facility. Ms. Houston went into the support area on the day of Petitioner's fall, but whether Ms. Houston asked for permission on that day is also unclear from the record.

Safeway's corporate designee, Laurie Palmer, testified that customers must ask for permission to use the first-floor restroom because it is always kept locked and the key is kept in the front of the store. Conflicting evidence was presented, however, that suggested that the restroom door was kept unlocked or, if it were locked, that the key was readily available to customers. Petitioner testified that when she asked to use a restroom, she was instructed to go directly through the double doors; she was never instructed to go to the front of the store to obtain a key. Petitioner also testified that after she fell down, she was taken to the restroom by a store employee, and Petitioner never saw the employee use a key to open the door. Ms. Houston testified that she had used the first-floor restroom approximately twenty times since the 1970s. She also testified that when she used this restroom, the door was kept locked, but the key was hanging on a hook next to the door. Ms. Houston identified in a photograph the nail upon which she claimed the key had been hung.

There is no evidence that anyone who asked to use a restroom was ever denied access. Ms. Palmer testified that approximately four customers or members of the public were directed to the first-floor restroom during every shift. The jury also learned that at Ms. Palmer's deposition, she estimated that "four or five" customers were directed to this restroom on a daily basis. Petitioner argues that by multiplying these figures by several employees and several shifts, the number of customers who use the first-floor restroom at Safeway annually could be estimated to be as high as 3,000.

Safeway employees are allowed to use the first-floor restroom, and Ms. Palmer testified that she "sometimes" used it. The evidence presented, however, suggested that employees used this facility on a less frequent basis than customers. For instance, Ms. Palmer testified that, on the day Petitioner was injured, Ms. Palmer used the second-floor restroom even though she had been near the first-floor restroom approximately twelve times. She agreed when questioned that an employee might prefer the second-floor restroom to the first-floor restroom because the second-floor restrooms were not locked....

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