Norris v. Ross

• Decision Date: 06 October 2004
• Docket Number: No. 2931,2931
• Citation: 859 A.2d 266,159 Md. App. 323
• Parties: Thelma E. NORRIS v. ROSS STORES, INC.
• Court: Court of Special Appeals of Maryland

859 A.2d 266

159 Md. App. 323

Thelma E. NORRIS v. ROSS STORES, INC.

No. 2931, September Term, 2002.

Court of Special Appeals of Maryland.

October 6, 2004.

Barry S. Kopit (Jay S. Weiss, P.C., on brief), Washington, DC, for appellant.

Anne Marie McGinley (DeCaro, Doran, Siciliano, Gallagher, DeBlasis, LLP, on brief), Lanham, for appellee.

Panel MURPHY, C.J., CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), RAYMOND G. THIEME, JR. (Ret'd, Specially Assigned), JJ.

THIEME, J.

Thelma E. Norris, the appellant, filed a negligence suit against Ross Stores, Inc., the appellee, alleging she was injured in one of appellee's stores. After the Circuit Court for Montgomery County entered summary judgment in favor of Ross, Norris filed this appeal.

ISSUE

Norris argues, in essence, that the trial court erred by determining that she could not rely on the doctrine of res ipsa loquitur, and in therefore granting summary judgment in Ross's favor. We shall vacate the judgment of the trial court and shall remand the case for further proceedings.

FACTS

The incident that gave rise to Norris's suit against Ross occurred during the evening of August 8, 1998, in the Ross store in Rockville, Maryland. Norris alleged in her complaint that she suffered serious injury when a shelving unit on which glass products were displayed collapsed. Norris's deposition testimony, which was attached to Ross's motion for summary judgment, clarified that the metal shelving unit was at the end of an aisle and contained decorative glass bottles of salad dressing. Norris indicated in her deposition testimony that as she was walking past the shelving unit she heard a "tingling" immediately before it collapsed and the bottles fell to the floor and shattered. She asserted that she had not touched the shelving unit and had not seen any other customers or employees working in the area. Norris's counsel proffered at the hearing on the motion for summary judgment that Norris slipped and fell on the oil and glass and was badly injured. The parties do not dispute that when Norris suffered her injury the store in which the injury occurred had been open for only six weeks. Shortly before the opening, Ross had hired a contractor to assemble and install the shelving unit. Ross had supplied the contractor with the unassembled parts of the unit and directions for assembly.¹

In moving for summary judgment, Ross argued to the effect that the undisputed facts could not support a finding of negligence on its part. Norris argued in response that she was entitled to rely upon the doctrine of res ipsa loquitur. The trial court agreed with Ross and entered summary judgment in its favor.

STANDARD OF REVIEW

As this Court has summarized:

A trial court may grant summary judgment only if "the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." Md. Rule 2-501(e). In reviewing a summary judgment motion, we consider the facts, and any reasonable inferences drawn from those facts, in the light most favorable to the non-moving party. To defeat a motion for summary judgment, the nonmoving party must establish that a genuine dispute exists as to a material fact by proffering facts that would be admissible in evidence. The appellate court determines whether there was a genuine issue of material fact and whether the trial court was legally correct. In reviewing a grant of summary judgment, the appellate court ordinarily reviews only the grounds relied upon by the trial court.

Bell v. Heitkamp, Inc., 126 Md.App. 211, 221-22, 728 A.2d 743 (1999) (citations omitted) (affirming a trial court's ruling that the doctrine of res ipsa loquitur was not applicable, but reversing the decision in part on other grounds).

DISCUSSION

Res ipsa loquitur,² a rule of evidence, "is merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify a jury in inferring negligence as the cause of that accident...." Chesapeake and Potomac Telephone Co. of Maryland v. Hicks, 25 Md.App. 503, 512, 337 A.2d 744 (1975). When properly invoked, res ipsa loquitur permits, but does not compel, an inference of negligence. Pahanish v. Western Trails, Inc., 69 Md. App. 342, 359, 517 A.2d 1122 (1986). The doctrine of res ipsa loquitur "`relates to the burden of proof and sufficiency of evidence.'" Joffre v. Canada Dry Ginger Ale, 222 Md. 1, 6, 158 A.2d 631 (1960) (citation omitted). "`[T]he usual operation of the doctrine is to support an inference [of negligence] from circumstantial evidence, based on probability.'" Id. at 7, 158 A.2d 631 (citation omitted). "Relaxation of the normal rules of proof is thought to be justified because the instrumentality causing injury is in the exclusive control of the defendant, and it is assumed he is in the best position to explain how the accident happened." Peterson v. Underwood, 258 Md. 9, 19, 264 A.2d 851 (1970).

However, the burden of proof is not thereby shifted from the plaintiff to the defendant. In such circumstances, the defendant has the duty of going forward with the evidence to explain or rebut, if he can, the inference that he failed to use due care, but he does not have the burden of satisfactorily accounting for the accident and of showing the actual cause of the injury in order to preclude the granting of an instructed verdict against him.

Munzert v. American Stores Co., 232 Md. 97, 103, 192 A.2d 59 (1963).

In order to rely successfully upon the doctrine of res ipsa loquitur, a plaintiff must prove: "(1) a casualty of a kind that does not ordinarily occur absent negligence, (2) that was caused by an instrumentality exclusively in the defendant's control, and (3) that was not caused by an act or omission of the plaintiff." Holzhauer v. Saks & Co., 346 Md. 328, 335-36, 697 A.2d 89 (1997). "It must appear from the evidence also that no action on the part of a third party or other intervening force might just as well have caused the injury. This enlarged dimension of the third criterion emphasizes the `exclusive control' criterion of the second element." Chesapeake & Potomac Telephone Co. of Maryland v. Hicks, supra. Thus, the injury must be one that does not ordinarily occur if the defendant uses proper care.

In Evangelio v. Metropolitan Bottling Co., 339 Mass. 177, 158 N.E.2d 342, 345 (1959), which the Court of Appeals cited with approval in Leikach v. Royal Crowm Bottling Co. of Baltimore, 261 Md. 541, 550, 276 A.2d 81 (1971), the Court said:

[Plaintiff] is not required to exclude every possible cause for her injuries other than that of negligence; she is only required to show a greater likelihood that her injury was caused by the defendant's negligence than by some other cause.

Thus, the central question involved in the use of the res ipsa loquitur doctrine is whether, by relying on common sense and experience, the incident more probably resulted from the defendant's negligence rather than from some other cause.

To determine whether there is a logical relation and connection between the circumstances proved and the conclusion sought to be adduced from them, and whether an event is of the kind that does not occur unless someone has been negligent, the court will look to common sense and human experience, Prosser, Law of Torts (4th ed.) p. 249. The doctrine of res ipsa loquitur is merely a rule of evidence permitting an inference of negligence to arise. The doctrine does not change the burden of proof, but it does allow the question of negligence to reach the jury by a permissible inference of negligence. Chesapeake & Potomac Tel. Co. v. Hicks, 25 Md.App. 503, 526-27, 337 A.2d 744. See also Dover Elevator Co. v. Swann, 334 Md., 231, 638 A.2d 762 (1994).

Thus, when, through any instrumentality or agency under the management or control of a defendant or his servants, there is an occurrence injurious to the plaintiff, which, in the ordinary course of things, would not take place if the person in control were exercising due care, the occurrence itself, in the absence of explanation by the defendant, affords prima facie evidence that there was want of due care.

The parties do not now dispute that the facts generated jury questions as to the first and third requirements. They dispute only whether the facts generated a question as to the second requirement—in this case, whether Ross had exclusive control over the shelving unit and the display of salad dressings. The trial court determined there could be no genuine dispute and explained:

I find that even viewing the facts in the light most favorable to the plaintiff, that it could not be found by a jury upon these facts, any reasonable person, that the instrument in question was within exclusive control of the defendant, or there was not a reasonable possibility of intervening causes. For that reason, I believe that the theory of res is applicable under the facts of this case—and there being absent—other than that theory—any evidence of negligence the motion of the defendant Ross is granted for the same reasons.

The trial court apparently accepted Ross's contention, which seems to be that shelving units of a store open to the public, ipso facto, are not within the exclusive control of the store, that this shelving unit was in an area of the store that was open to the public, ergo, this shelving unit was not within the exclusive control of Ross. We are aware of no authority that supports Ross's major premise. "`Control,' if it is not to be pernicious and misleading, must be a very flexible term." Prosser, Law of Torts (4th ed.) p. 250. Contrary to the court's apparent understanding, however,

evidence of complete control is not required. [Exclusive control] may be established by evidence sufficient to warrant an inference of its existence, and circumstantial evidence may suffice. The plaintiff is not required in his

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