Rehn v. Westfield America

• Decision Date: 08 December 2003
• Docket Number: No. 1630,1630
• Citation: 837 A.2d 981,153 Md. App. 586
• Parties: Henry REHN v. WESTFIELD AMERICA, et al.
• Court: Court of Special Appeals of Maryland

837 A.2d 981

153 Md. App. 586

Henry REHN v. WESTFIELD AMERICA, et al.

No. 1630, Sept. Term, 2002.

Court of Special Appeals of Maryland.

December 8, 2003.

Alan H. Legum (Kathleen Duckett McCann, Alan Hilliard Legum, P.A., on brief), Annapolis, for appellant.

D'Ana E. Johnson (Katherine A. Berman, Bonner, Kiernan, Trebach & Crociata, on brief), Washington, DC, Kevin M. Soper (Moore & Jackson, LLC, on brief), Towson, for appellee.

Argued before MURPHY, C.J., and ADKINS and SHARER, JJ.

ADKINS, J.

In this slip and fall case, plaintiff-appellant Henry Rehn asks us to reverse summary judgments in favor of defendants-appellees Mike Edmonds d/b/a Chick-fil-A (Chick Fil-A), Westfield America (Westfield), and Interstate Cleaning Corporation (ICC). Rehn broke his hip when he slipped on spilled soda near the service counter of the Chick-fil-A located in the Annapolis Mall food court. Westfield was responsible for maintaining the area where Rehn fell, and contracted with ICC for those maintenance services.

Rehn presents two questions for our review, which we have rephrased as follows:

I. Did the circuit court err in determining that Chick-fil-A did not have a duty to clean up or warn Rehn about the spill?

II. Did the circuit court err in determining that none of the defendants breached their duties of care to Rehn?

We agree that there was no material factual dispute on the second question of whether these defendants breached their duties to Rehn. Consequently, we shall affirm the judgments without addressing the first duty issue with respect to Chick-fil-A.

FACTS AND LEGAL PROCEEDINGS

All three defendants moved for summary judgment on the basis of undisputed facts that came out during discovery.

On May 8, 1999, Henry Rehn and a friend went to the Annapolis Mall. At approximately 10:30 a.m., they decided to get something to eat at Chick-fil-A. They walked through the food court to Chick-fil-A, where Rehn purchased a sandwich and a drink at the counter. Rehn then "took a small step and slipped" on soda and ice that a Chick-fil-A customer had just spilled. The wet floor was not marked and Rehn did not see the spill before he fell. Rehn's right hip fractured, requiring surgery.

Chick-fil-A employee Theresa DeChamps, who had been employed for seven and a half years at this location, was working the counter that morning. At her deposition, she testified that when there was a spill on the floor outside the counter area, the Chick-fil-A employees routinely called customer service at Westfield, and "they would in turn call [ICC] maintenance" on their beepers. It was her understanding that spills "on the other side of the counter, that was not our responsibility." ICC maintenance workers were the ones who "usually" put up yellow warning signs "when there's a spill." DeChamps also related what happened before Rehn's fall. She had just waited on a customer who had carried her take-out order, including three or four Cokes in a cup carrier, away from the counter. The customer headed for the food court exit, and DeChamps began to do something else. Shortly after leaving the counter, the customer apparently spilled her drinks. DeChamps did not see the spill occur. But the customer came back to the counter and told DeChamps, "`I spilled my drinks[.]'" DeChamps looked out and saw a large brown spill not far from the service counter.

DeChamps explained that she immediately told another employee to notify Westfield of the spill.

DeChamps: So I, in the process, turned around. My station is right there by where the swinging door is, and I believe there was one other person out in [sic] behind the registers.

And, our rule is not to leave anyone out there by themselves, so I opened the door, hollered back there, "Someone call for a spill," and just as I said that, I said, "Also call security," and they said, "Why?" I said, "Cause someone has fallen."

Q: Did you see the gentleman fall?

A: No, I did not....

Q: So you didn't see the spill and you didn't see the fall, but you saw everything before and after each event, right?

...

A: Yes.

DeChamps was questioned also about a statement she gave to an investigator. The statement said: "According to Ms. DeChamps, she did not have an opportunity to call maintenance and the spill was on the floor surface for less than four minutes." When asked whether she "agree[d] that the spill was on the floor surface for less than four minutes[,]" DeChamps replied, "Yes."

The lease between Chick-fil-A provided that Westfield would maintain the area of the food park where Rehn fell. Westfield hired ICC to perform its maintenance duties. When Chick-fil-A received information about a spill, it contacted Westfield, who in turn radioed ICC employees stationed in the food park area to clean it up and place "wet floor" warning stanchions over the wet floor. ICC employees also patrolled the food court and cleaned up spills that they found or were notified about. Although an ICC worker was on duty in the food court area when the spill and fall occurred, there was no evidence that he saw the wet floor on which Rehn fell. An ICC employee testified in deposition that yellow "wet floor" stanchions are placed around the food park trash cans for anyone to put out when needed.

All three defendants moved for summary judgment on the basis of this evidence. Westfield and ICC asserted inter alia that they did not breach their respective duties to Rehn because neither had actual notice of the spill and the spill had not been on the floor long enough that they reasonably could have been expected to discover it in the course of patrolling the food court area. Chick-fil-A argued that even though it had notice of the spill, it had no duty to clean it up and, in any event, it did not have enough time to do so.

In a written opinion and order, the circuit court noted DeChamps' undisputed testimony that as soon as the customer reported the spill, she "turned around to face a door behind her in the back of the business, calling to another employee to notify the mall customer service about the spill with the understanding that they would alert the cleaning crew assigned to that area." The court concluded that "Chick-fil-A did not have a duty to maintain the food court area and owed no duty to [Rehn] under these circumstances." In addition, the court held that none of the defendants had breached their duties to Rehn. Rehn noted this appeal.

DISCUSSION

"In reviewing the circuit court's grant of summary judgment, we evaluate `the same material from the record and decide[ ] the same legal issues as the circuit court.'" Berringer v. Steele, 133 Md.App. 442, 470, 758 A.2d 574 (2000) (citations omitted). A party opposing summary judgment must offer admissible evidence to show that there is a dispute of material fact justifying denial of the motion. See Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md.App. 381, 386, 693 A.2d 370 (1997). "A party cannot establish the existence of a dispute merely by making formal denials or general allegations of disputed facts." Id. at 386-87, 693 A.2d 370.

Here, we ask whether the circuit court correctly concluded that the summary judgment record established that none of these three defendants breached their respective duties of care to Rehn.

In Maryland, it is well-established premises liability law that the duty of care that is owed by the owner of property to one who enters on the property depends upon the entrant's legal status. Ordinarily, one entering onto the property of another will occupy the status of invitee, licensee by invitation, bare licensee, or trespasser. "An invitee is a person `on the property for a purpose related to the possessor's business.'" He is owed a duty of ordinary care to keep the property safe.

Rivas v. Oxon Hill Joint Venture, 130 Md.App. 101, 109, 744 A.2d 1076, cert. denied, 358 Md. 610, 751 A.2d 471 (2000) (citations omitted).

Nevertheless, "[s]torekeepers are not insurers of their customers' safety, and no presumption of negligence arises merely because an injury was sustained on a storekeeper's premises." Giant Food, Inc. v. Mitchell, 334 Md. 633, 636, 640 A.2d 1134 (1994). "The burden is upon the customer to show that the proprietor ... had actual or constructive knowledge" that the dangerous condition existed. Moulden v. Greenbelt Consumer Servs., Inc., 239 Md. 229, 232, 210 A.2d 724 (1965); see Tennant, 115 Md.App. at 389,693 A.2d 370. When another patron creates the danger, the proprietor may be liable if it has actual notice and sufficient opportunity to either correct the problem or warn its other customers about it. See Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 117-18, 113 A.2d 405 (1955); Tennant, 115 Md.App. at 389,693 A.2d 370. The evidence must show not only that a dangerous condition existed, but also that the proprietor "had actual or constructive knowledge of it, and that that knowledge was gained in sufficient time to give the owner the opportunity to remove it or to warn the invitee." Keene v. Arlan's Dep't Store of Baltimore, Inc., 35 Md.App. 250, 256, 370 A.2d 124 (1977). Whether there has been sufficient time for a business proprietor to discover, cure, or clean up a dangerous condition depends on the circumstances surrounding the fall. See Deering Woods Condo. Ass'n v. Spoon, 377 Md. 250, 833 A.2d 17, 2003 Md. LEXIS 691, *18 (filed Oct. 6, 2003). "`What will amount to sufficient time depends upon the circumstances of the particular case, and involves consideration of the nature of the danger, the number of persons likely to be affected by it, the diligence required to discover or prevent it, opportunities and means of knowledge, the foresight which a person of ordinary care and prudence would be expected to exercise under the circumstances, and the foreseeable consequences of the conditions.'" Id. (quoting Moore v. Am. Stores Co., 169 Md. 541, 551, 182 A. 436 (1936)).

I. Chick-fil-A

The court concluded that Chick-fil-A...