Decision Date10 March 2000
Docket NumberNo. 80,80
Citation358 Md. 194,747 A.2d 662
CourtMaryland Court of Appeals

Eugene A. Shapiro (Shapiro & Dorman, P.A., on brief), Baltimore, for petitioners.

Anthony G. Lardieri (Anthony J. Zaccagnini, Semmes, Bowen & Semmes, on brief), Baltimore, for respondents.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, HARRELL and ROBERT L. KARWACKI (retired, specially assigned), JJ. RODOWSKY, Judge.

In this wrongful death and survival action the decedent was killed when he fell from a forklift-elevated pallet. The Circuit Court for Baltimore City entered summary judgment in favor of the defendants on the ground that the decedent had assumed the risk of the injury as a matter of law, and, in an unreported opinion, the Court of Special Appeals affirmed on that ground. We issued the writ of certiorari, Imbraguglio v. Great Atl. & Pac. Tea Co., 356 Md. 16, 736 A.2d 1064 (1999), primarily to address some fundamental misconceptions in the arguments of the parties concerning the summary judgment process. As to the merits, we shall reverse.

The decedent, Salvatore Imbraguglio (Imbraguglio), was employed by Supermarket Distribution Services, Inc. (SDS) as a supervisor and forklift operator in a grocery warehouse and distribution center where he had worked for thirty-five years. SDS is a wholly owned subsidiary of the Great Atlantic & Pacific Tea Company, Inc. (A & P), one of the Respondents. Imbraguglio's fatal fall occurred in a warehouse which was owned by A & P but managed by the other respondent, Super Fresh Food Markets of Maryland, Inc. (Super Fresh), also a wholly owned subsidiary of A & P.

The petitioner and plaintiff is Ethel Imbraguglio, individually and as personal representative of the Estate of Imbraguglio (Petitioner). This case is a third-party action to the workers' compensation claim which has been resolved. In Great Atlantic & Pacific Tea Co. v. Imbraguglio, 346 Md. 573, 697 A.2d 885 (1997), we held that A & P, which is the workers' compensation self-insurer for its subsidiaries, did not enjoy a defense on that basis to this third-party action and that the record did not establish as a matter of law that Super Fresh was the statutory employer of Imbraguglio under Maryland Code (1991), § 9-508 of the Labor and Employment Article. A summary judgment which had been entered in favor of A & P and Super Fresh (Respondents) was reversed in that earlier appeal, and the action was remanded.

Respondents again moved for summary judgment, contending that Imbraguglio had assumed the risk of injury. The circuit court granted that motion for the reasons advanced by Respondents. As we shall see, infra, the memoranda submitted to the circuit court in support of, and in opposition to, summary judgment did not present the evidence most favorable to the party opposing summary judgment as that evidence appeared in Respondents' supporting materials. The facts that are undisputed are that the warehouse where Imbraguglio worked was very large, containing as many as sixty aisles. Supermarket grocery-department products were moved and stored in the warehouse in their transportation cartons on forklift pallets. Loaded pallets were stored in or on racks that formed the aisles in which forklifts operated. Those racks were vertically and horizontally divided into sections, each of which was the storage receptacle or bin for one loaded pallet. These bins were tiered to a height of at least three bins and were largely open. In addition to the aisle side or face of a bin being open, it appears that there were no solid barriers and no closely spaced, intermittent barriers between bins that adjoined vertically or horizontally, at least in the section of the warehouse with which we are concerned.

Thus, it was possible and, one may infer, not an infrequent occurrence, for one or more cartons of product to become "mispositioned," either by having fallen off of a pallet into a bin on one or another side of the intended storage bin, or by having fallen to a level below that of the intended storage bin. Cartons could fall from a pallet when, for example, loaded pallets were being inserted into or withdrawn from a particular bin. Although the allegations of primary negligence in Petitioner's amended complaint are vague, at least one theory of liability suggested by Petitioner's argument is that the Respondents, as owner and manager of the warehouse, failed to furnish a safe place to work by, inter alia, failing to supply bins with barriers that would prevent cartons from becoming mispositioned.

Part of the duties of a warehouse worker such as Imbraguglio was to place in the proper position a product that had become mispositioned. When the mispositioned product was in a bin other than at ground level a worker would reach the higher elevation by a procedure that required two workers. A forklift with an empty pallet placed upon the forks was positioned in front of the column of bins where the task was to be performed. One worker would stand on the pallet while a second worker operated the controls of the stationary forklift in order to raise the pallet to the desired elevation. It was also necessary for the warehouse workers to be raised in this fashion when taking inventory.

Respondents1 had caused some number of the ordinary pallets to be modified by erecting a post at each corner and by affixing a railing between the posts. Respondents call these modified pallets "cages." The evidence on behalf of Respondents is that warehouse workers who were repositioning stock or taking inventory were required by management to, and so far as management knew, universally did, use cages when the workers were elevated by forklift.2

On the other hand, evidence on behalf of Petitioner, derived from the report of the Maryland Occupational Safety and Health Act (MOSHA) inspectors, is that the warehouse workers did not regularly use cages and that the storage area for the cages was "at the far end of the warehouse which was not an area" where they could be "easily retrieved by the employees for use." Instead, the warehouse workers used pallets that had not been modified into cages. Imbraguglio fell to his death after he had been elevated on an unmodified pallet.3

We also learn from the MOSHA inspectors' report that Imbraguglio's fall was caused by his having lost his balance due to a shift of position by at least one of the cartons in the bin where he was working. The inference most favorable to Petitioner is that the shift took place among the product that remained in the bin and that it was not a shift in weight of a carton that Imbraguglio was then handling.

Respondents' position on summary judgment is that Imbraguglio voluntarily chose to use an unguarded pallet when the alternative of using a cage was available to him and that, by this voluntary choice, Imbraguglio assumed the risk of falling. The director of warehousing for SDS acknowledged on deposition that the cages did not comply with the Federal Occupational Safety and Health Act requirements, but the particulars of that noncompliance are not developed in the record. From this unspecific noncompliance Petitioner argues that use of a cage was not a safe alternative.


Initially, we need to determine the record that may properly be considered on this summary judgment motion. In support of their motion Respondents submitted four items of evidence. The first is a typewritten and signed, but unsworn, statement by David Alonzo Williams (Williams) that was given to a representative of Respondents. Williams was the co-worker who was operating the forklift controls when Imbraguglio was elevated on the pallet. The second item is the transcript of the testimony given before the Maryland Workers' Compensation Commission (the Commission) by Jeffrey Kidd (Kidd), a witness called by SDS in defense of the Petitioner's workers' compensation claim. Kidd was employed by Super Fresh as the grocery warehouse manager. Excerpts from the deposition of Walter L. Swift (Swift), who was described in Respondents' motion papers as the maintenance supervisor at SDS, form the third item of evidence. The fourth consists of excerpts from the deposition of Gary Farmer (Farmer), the director of warehousing for SDS. Petitioner's principal evidence is the report of the MOSHA inspectors. The first issues before us are raised by Petitioner's contentions that Kidd's testimony and Williams's statement should not be considered. Petitioner makes no objection to the deposition testimony of Swift or Farmer, or to any part thereof.


Petitioner argues that the circuit court ought not to have considered the statement of Williams because, on summary judgment, the court could only consider evidence that would be admissible at trial and the statement, sworn or unsworn, could not be admissible at trial. Respondents advance four reasons, none of them availing, why the statement was properly considered. First, Respondents say that the matters of fact contained in the statement would be admissible in evidence at trial and, thus, may be considered on summary judgment. But the facts contained in the statement would not be admissible at trial if presented in the form of the statement; ordinarily Williams would have to testify in person or, under certain circumstances, by deposition, for his evidence to be admitted at trial. At the summary judgment stage the court, under the circumstances here, could not consider the statement absent an affidavit from Williams in which he asserted, inter alia, his personal knowledge of the facts contained in the statement or in which he otherwise demonstrated the admissibility through him at trial of testimony as to those facts.

Use on summary judgment of an unsworn statement of a party opponent was attempted in Diffendal v. Kash & Karry Service Corp., 74 Md.App. 170, 536 A.2d 1175 (1988)....

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