Joseph v. Bozzuto
| Decision Date | 15 March 2007 |
| Docket Number | No. 0322, Sept. Term, 2006.,0322, Sept. Term, 2006. |
| Citation | 173 Md. App. 305,918 A.2d 1230 |
| Parties | Michael Singer JOSEPH v. BOZZUTO MANAGEMENT COMPANY et al. |
| Court | Court of Special Appeals of Maryland |
Joel D. Joseph, Bethesda, MD, for Appellant.
Karen L. Federman-Henry, Rockville, MD, Kevin P. Sullivan (Michael W. Skojec, Gallagher, Evelius & Jones L.L.P., on the brief), Baltimore, MD, for Appellee.
Panel: KRAUSER, MEREDITH and CHARLES E. MOYLAN, JR., (retired, specially assigned), JJ.
This appeal is from a slip-and-fall case, not from a lead-paint case. The difference is critical to the outcome. Both types of cases, to be sure, involve, in a very general sense, the responsibility of landowners or landlords to keep property owned by them reasonably free of risk to users of the property. At about that level of abstraction, however, the similarities cease. The respective types of cases are of the same genus, perhaps, but they are very different species. Strained analogies are treacherously inappropriate, therefore, and a recent change in the lead-paint caselaw effected by Brooks v. Lewin Realty III, Inc., 378 Md. 70, 835 A.2d 616 (2003), has no bearing whatsoever on the slip-and-fall case now before us.
On October 13, 2004, the appellant, Michael Singer Joseph, brought suit against the appellees, the Housing Opportunities Commission of Montgomery County ("HOC") and the Bozzuto Management Company, in the Circuit Court for Montgomery County, alleging that negligence on their part resulted in a knee injury he sustained following a slip-and-fall on property owned or maintained by them. Both appellees filed motions for summary judgment, contending that, based on the undisputed facts, the appellant had not shown a prima facie case of negligence. On March 9, 2006, Judge Joseph A. Dugan, Jr., granted summary judgment in favor of both appellees. The appellant has taken this timely appeal from that grant of summary judgment.
The Metropolitan is a 13-story apartment building at 7620 Old Georgetown Road in Bethesda, Maryland, owned by the HOC. It is managed by the Bozzuto Management Company. Joel Joseph, who is both the father of the appellant and his attorney in this case, is a resident of the Metropolitan with an apartment on the tenth floor. The appellant is a resident of Boulder, Colorado, but, in August of 2004, was visiting his family in the Washington area and was staying with his father at the Metropolitan.
On the evening of August 20, 2004, at approximately 6 p.m., the appellant was scheduled to meet with his mother in the lobby and to go out to dinner. Instead of using the elevator, he decided to walk down the ten flights of stairs. Walking just behind him was his younger brother, 17-year-old Alex Joseph. According to the complaint, as the appellant approached the eighth floor landing "he slipped on an oily substance and fell violently to the concrete floor, hitting his knee on the floor." At the time that he slipped, the appellant was not using the hand rail.
The "Oily Substance"
The appellant, in his pretrial deposition, described the "oily substance" on which he slipped as translucent and colorless.
Q. And what color was the substance?
A. It's translucent.
Q. So it was clear?
A. It was colorless.
In terms of the size of the "oily" spot, the appellant based his estimate on the one-foot square tiles that covered the floor of the eighth floor landing. He estimated that the oily spot covered between 15% and 20% of one of the tiles. Although the lighting in the stairwell was good, the appellant stated that he did not see the oily spot before he slipped on it. The appellant was not sure whether, had he been looking straight down, he would have seen the oily patch.
Q For clarification, I want to ask you a question again. As you were descending the stairs and you were looking generally toward the forward motion that you were making, if you had been looking directly at the floor, would you have been able to see this substance?
A It's possible. I don't know. It's possible. I mean it depends were you looking at a given moment in time? There's a lot of space in that stairwell so if I would have been looking directly down, would I have seen it? The chances are high. Directly down at a given moment, sure.
Q You're saying if you had been looking directly down at this tile where this spot, the greasy spot was, if you'd been looking down on it as you were just about to step on to that tile, would you have been able to see it, knowing now what it looked like and where it was, if you went back and looked at it after you fell?
A I'm not sure. I'm not sure. I couldn't be sure of something like that.
Q Why not?
A Why not? Because it didn't happen and as you can tell from the picture, at different angles, that substances give off a different reflection as well. So, at a given angle, if I were looking down at it, I may not have seen it or at another angle, I may have seen it.
(Emphasis supplied).
In his deposition, Alex Joseph also testified that, although he could see the floor and the stairs in front of his brother, he saw nothing abnormal on the floor.
Q And could you see the floor and the stairs that were in front of him?
A Yes.
. . . .
Q What did you see on the floor, if anything, before he fell?
A I couldn't see anything. It looked normal.
. . . .
A I could see clearly where he was walking, yes.
Q You could see the whole landing?
A Yes.
Q And how was the lighting in the stairwell?
A It was good.
Q Any problems seeing the stairs as you guys went down?
A No. I could see fine.
(Emphasis supplied).
After the appellant slipped and fell, Alex Joseph looked to see what had caused the slip. He described it:
Q What did you see?
A I saw a shiny substance on the floor?
Q What color was it?
A It was clear.
. . . .
A It wasn't really a puddle. It was like a smudge on the floor.
Q A smudge, can you describe that a little bit better for us?
A It was kind of greasy. It was like smeared on the floor. That's how I can describe it.
(Emphasis supplied).
No one else ever saw the oily substance. On the afternoon after his fall, the appellant reported the incident to Antonio Muniz, the maintenance supervisor at the Metropolitan apartment house. In a deposition, Muniz described his actions in response to the appellant's report of the fall.
Q. Do you know what the substance was that was on the steps?
. . . .
THE WITNESS: I don't know of any substance on the steps at all. When I inspected it there was nothing.
Q. When did you inspect it?
A. Right after a conversation I had with Mr. Joseph.
Q. You talked to Michael Joseph?
A. Yes.
Q. When did you talk to him?
A. I think it was about 2:30 that afternoon, the same day.
Q. That was after he fell?
A. Yes. Or the next morning. The next afternoon actually.
Q. The next afternoon?
A. Yes.
Q. When did you go and inspect then after you were informed?
A. Right after the conversation with him. He went upstairs and I immediately went and checked there.
Q. What did you find when you inspected?
A. Nothing. I also checked all the other stair towers as well just to make sure—see if maybe he was mistaken which one it was. I went ahead and checked everything.
(Emphasis supplied).
Antonio Muniz was employed by Bozzuto as the building superintendent for the Metropolitan. In addition to Muniz, Bozzuto directly employed a housekeeper and three maintenance technicians at the Metropolitan. In his deposition, Muniz testified that each of the maintenance technicians would generally walk and clean the common areas of the Metropolitan on a daily basis. Muniz also testified that he himself had inspected the stairwells during the week immediately preceding the appellant's fall.
Q. Did you inspect that stair tower before the accident took place?
A. Some time that week I had inspected all the stair towers. I'd walk them on a weekly basis.
(Emphasis supplied).
Bozzuto hired an independent contractor, Gali Services Inc., to handle the actual cleaning and maintenance of the Metropolitan's common areas, including the stairwells. It was Muniz's belief that the Gali employees checked and cleaned the stairwells three times a week.
Q. How often are the stairs or the stair towers as you said cleaned at The Metropolitan?
A. . . . [T]here was a foreman that oversaw all the cleaning of the stairs and the carpets in the corridors and everything, so he had his own schedule as far as the cleaning goes.
I think they tried to hit everything three times a week.
Q. Three times a week?
A. Yes. Along with vacuuming the corridors and cleaning the stair towers.
(Emphasis supplied).
We shall first examine this case by applying the general principles of tort law on the subject of landowner liability in slip-and-fall cases. In Valentine v. On Target, 353 Md. 544, 549, 727 A.2d 947 (1999), Judge Karwacki listed for the Court of Appeals the required elements necessary to establish landowner liability based on negligence:
To maintain an action in negligence, the plaintiff must assert in the complaint the following elements: "(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty."
(Emphasis supplied). See also Moore v. Jimel, 147 Md.App. 336, 337-38, 809 A.2d 10 (2002); Corinaldi v. Columbia, 162 Md. App. 207, 218, 873 A.2d 483 (2005).
There was no dispute over the facts 1) that the appellant was an invitee at the Metropolitan and 2) that both appellees accordingly owed him the duty to exercise ordinary care for his safety in maintaining the common areas of the Metropolitan.
The critical element in this case was the second, to wit, the establishment that the...
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