Maans v. Giant of Md., LLC

• Decision Date: 04 April 2005
• Docket Number: No. 161,161
• Citation: 871 A.2d 627,161 Md. App. 620
• Parties: Chandra MAANS v. GIANT OF MARYLAND, L.L.C.
• Court: Court of Special Appeals of Maryland

871 A.2d 627

161 Md. App. 620

Chandra MAANS v. GIANT OF MARYLAND, L.L.C.

No. 161, September Term, 2004.

Court of Special Appeals of Maryland.

April 4, 2005.

Ann Wittik-Bravmann (Charles J. Zuckerman, PA, on brief), Baltimore, for appellant.

Christopher R. Dunn (DeCaro, Doran, Siciliano, Gallagher & DeBlasis, LLP, on brief), Lanham, for appellee.

Panel SALMON, KRAUSER, MOYLAN, CHARLES E., JR. (Ret., Specially Assigned), JJ.

SALMON, J.

Chandra Maans ("Maans") sued Giant of Maryland, L.L.C. ("Giant"), in the Circuit Court for Harford County, claiming that Giant, by negligently allowing water to remain on the floor, had caused her to fall and injure herself. The case was bifurcated and tried before a jury on the issue of negligence only. At the conclusion of plaintiff's case, the trial judge granted a motion for judgment in favor of Giant because, in the trial judge's view, Maans had failed to prove that Giant had either constructive or actual pre-injury notice of the wet floor.

Maans filed this timely appeal in which she asserts that the motion for judgment should not have been granted because (1) she produced sufficient evidence to raise a jury question as to whether Giant had either actual or constructive knowledge of the defective condition that caused her injury and (2) alternatively, there was no need to prove that Giant had either constructive or actual knowledge of the dangerous condition because her proof was sufficient to meet the requirements of the "mode-of-operation" rule under which proof that Giant had actual or constructive knowledge of the hazard, prior to injury, was unnecessary.

I.

On Sunday, May 23, 1999, at approximately 1 p.m., Maans and her fifteen-year-old niece, Amanda Randolph ("Randolph"), were shopping at a busy Giant store. After selecting several items for purchase, Maans and Randolph proceeded to one of the checkout lines to pay for the items. Randolph stayed in the checkout line, but Maans walked away from it in the hope of finding a shorter one. Maans then turned around and began walking back toward her niece. When she was about "one cart length" away from the line in which her niece stood, Maans slipped and fell. She tried to avoid the fall by grabbing onto the cart of a woman in front of her but nevertheless landed on her back.

Maans, who was approximately six-and-one-half-months pregnant, felt immediate pain in her back and was unable to get up. She was transported by ambulance to a local hospital.

Maans did not see anything on the floor either before or after her fall. And, while on the floor waiting for the ambulance, she never felt water, nor did she sense that her clothes were wet.

Maans recalled that while she was on the floor she heard the assistant store manager, Roberta Braswell ("Braswell"), tell a man, who was standing nearby and holding a roll of paper towels in his hands, "to get up all the water off the floor." Later, when the paramedics arrived, she heard Braswell tell the paramedics "to be careful so they didn't slip and fall in the water." Maans did not know how the water got on the floor or how long it had been there prior to her fall.

Randolph saw her aunt fall but did not see what caused it. Afterward, because she was preoccupied with helping her aunt, she did not inspect the floor. She remembered, however, that as one of the female paramedics was picking her aunt up, "the manager said, `Watch out, there's water.'" Randolph had no idea how the water, mentioned by the manager, got onto the floor. According to Randolph's testimony, Maans was about ten feet away from her when she fell. She did not notice whether her aunt's clothing was wet after the fall.

Braswell was the ranking store employee on duty at the time that Maans fell and was responsible for the investigation of the accident. Braswell testified that she did not see Maans fall, but when she arrived at the scene of the accident, she did find "[a] couple of drops of Citra soda on the floor." She followed the drops back to a shopping cart pushed by a customer who stood in one of the checkout lines. The customer's cart had a twelve-pack of Citra soda on the bottom rack. According to Braswell, the drops led directly from the customer's shopping cart back to where Maans fell.

Braswell filled out an accident report on May 24, 1999, which was the day after the accident. In the report, Braswell quotes Maans as saying "that she fell on water on floor." The report also says that the floor was "last cleaned" on "5/24/99" by "Matt Pietrowski."

Braswell testified that it was not store policy to keep records of when mopping and cleaning of the floors occurred. Instead, Giant's policy required that every employee look for spills and other hazards, and if the employee discovered any hazard, it was the employee's responsibility to clean up the hazard immediately or call for a porter to do so and, when appropriate, "put a `wet floor' sign" at the place of danger. There was, however, no one employee whose exclusive assignment was to patrol the store looking for spills or hazards.

At the time of the subject accident, Matt Pietrowski ("Pietrowski") was a courtesy clerk. A Giant courtesy clerk has numerous duties, including bagging and loading groceries and cleaning up around the front of the store. At trial, excerpts of Pietrowski's deposition were read to the jury.

Even though his name was on the accident report as the person who had last cleaned the floor prior to the accident,¹ Pietrowski had no recollection concerning the fall or any actions he took relevant thereto.

About four months after the accident, Pietrowski became a porter. The duties of a porter at Giant are to "sweep the floor, empty trash cans, mop if there was clean up, and any little odd jobs around the store that needed to be done." His duties as a porter also included patrolling around the store "pretty much at all times except when ... on break." If a porter saw a hazard on the floor, he or she was "supposed to take care of it right away."

David Miller ("Miller"), the store manager at the time of the accident, was not on duty when Maans fell, and as a consequence, he had no recollection of the incident. His testimony concerned Giant's store policies. According to Miller, one responsibility of a store porter was to walk through the store looking for spills. The floors were "always cleaned in the morning prior to opening, and then cleaned throughout the day as needed." Except for the morning cleaning, there were "no set times" for the floors to be recleaned.²

Miller, like Braswell, testified that all Giant employees were responsible for maintaining the area of the store where he or she worked and, if hazards were spotted, to either clean up the hazard or call someone else to do so.

II.

The Court of Appeals has adopted the formulation enunciated in the Restatement (Second) of Torts § 343 (1965), which sets forth the general duty a private landowner, such as Giant, owes to its invitees. Deering Woods Condo. Ass'n v. Spoon, 377 Md. 250, 263, 833 A.2d 17 (2003). Section 343 reads:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

RESTATEMENT (SECOND) OF TORTS § 343 (1965).

In Burkowske v. Church Hospital Corp., 50 Md.App. 515, 439 A.2d 40 (1982), we applied the Section 343 standard in a case in which an invitee sat on a bench in a hospital waiting room and was injured when the bench collapsed. Id. at 516, 522, 439 A.2d 40. Judge Alan Wilner, for this Court, said:

"It was incumbent upon appellant to produce admissible evidence that (1) appellee failed in its duty to make reasonable periodic inspections of the bench, and (2) had it made such reasonable inspections, it would have discovered a dangerous condition. See Smith v. Kelly, 246 Md. 640, 229 A.2d 79 (1967)

; Bona v. Graefe, 264 Md. 69, 285 A.2d 607 (1972); Chesapeake and Potomac Telephone Co. v. Hicks, 25 Md.App. 503, 337 A.2d 744,

cert den. 275 Md. 750 (1975). It simply does not suffice to claim the obvious — that if appellee had inspected the bench at the instant before its collapse, it would (or may) have noticed the condition."

Id. at 523, 439 A.2d 40 (emphasis added).

At the time of the accident, Maans was Giant's invitee. "It is the law in Maryland ... that the proprietor of a store owes a duty to ... [an invitee] to exercise ordinary care to keep the premises in a reasonably safe condition and will be liable for injuries sustained in consequence of a failure to do so." Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 117, 113 A.2d 405 (1955).

The customer is entitled to assume that the proprietor will exercise reasonable care to ascertain the condition of the premises, and if he discovers any unsafe condition he will either take such action as will correct the condition and make it reasonably safe or give a warning of the unsafe condition.

Id. at 117-18, 113 A.2d 405 (citations omitted). "The duties of a business invitor thus include the obligation to warn invitees of known hidden dangers, a duty to inspect, and a duty to take reasonable precautions against foreseeable dangers." Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md.App. 381, 388, 693 A.2d 370 (1997).

A store operator, such as Giant, is not the insurer of the invitee's safety. Moulden v. Greenbelt Consumer Servs., Inc., 239 Md. 229, 232, 210 A.2d 724 (1965). In addition, "the burden is upon the customer to show that the proprietor created the dangerous condition or had actual or constructive knowledge of its existence" prior to the invitee's injury. Lexington Mkt....