UNION MEMORIAL v. Dorsey

• Decision Date: 26 February 1999
• Docket Number: No. 551,551
• Citation: 724 A.2d 1272,125 Md. App. 275
• Parties: UNION MEMORIAL HOSPITAL v. Sally E. DORSEY.
• Court: Court of Special Appeals of Maryland

724 A.2d 1272

125 Md. App. 275

UNION MEMORIAL HOSPITAL v. Sally E. DORSEY.

No. 551, Sept. Term, 1998.

Court of Special Appeals of Maryland.

February 26, 1999.

Edward P. Murphy (Allewalt & Murphy, P.A., on the brief), Baltimore, for appellant.

George S. Jarosinski (Leo W. Dymowski and Hassan, Hassan & Tuchman, P.A. on the brief), Baltimore, for appellee.

Before MURPHY, C.J., and HOLLANDER and VICTOR K. BUTANIS (specially assigned), JJ. VICTOR K. BUTANIS, Judge, Specially Assigned.

Sally E. Dorsey, appellee, filed a one count complaint in the Circuit Court for Baltimore City alleging negligence on the part of Union Memorial Hospital, appellant. Following a jury trial, Ms. Dorsey was awarded $11,202.70 in economic damages and $120,000 in non-economic damages. Union Memorial Hospital noted a timely appeal and, for our review, presents three questions, which we have rephrased slightly:

I. Did the trial court abuse its discretion in determining that, as a matter of law, appellee was not contributorily negligent?

II. Did the trial court abuse its discretion in denying appellant's motion in limine to preclude appellee from introducing evidence at trial that she had failed to provide in her answers to interrogatories?

III. Did the Administrative Judge abuse his discretion in twice deferring dismissal of this case under Rule 2-507 after expiration of the date set for trial on his first order deferring dismissal?

We answer appellant's first question in the affirmative and reverse and remand the case for a new trial. For the guidance of the trial court, we also address the second question and are unable to discern any abuse of discretion. Finally, we reach appellant's third question because a violation of Rule 2-507 would have required dismissal of the case. Perceiving no abuse of discretion on the part of the Administrative Judge in deferring, several times, operation of that Rule, we answer the third question in the negative.

FACTUAL BACKGROUND

On the afternoon of May 20, 1991, Ms. Dorsey and Wanda Allen, who were employed by Maryland National Bank, went to an automatic teller machine (ATM) located in Union Memorial Hospital (Union Memorial or the Hospital) to replenish the machine with money, paper, and envelopes. At the Hospital, they found the room that led to the ATM to be filled with fifteen to twenty bags of trash. At trial, Ms. Dorsey testified that a gurney was also in the room, cole slaw and potato salad were on the floor, and liquid was leaking from the garbage bags. Ms. Allen entered the room and began moving the bags to clear a path to the ATM. Ms. Dorsey followed behind her. [Id.] While they were moving the garbage bags, Ms. Dorsey slipped and fell to the floor. Ms. Allen testified that Ms. Dorsey slipped on some liquid leaking from the bags. Ms. Allen also stated that Ms. Dorsey "got caught up in" the bags as they were moving them out of the way. Ms. Dorsey testified that she was following Ms. Allen when she slipped on one of the bags and fell, striking her right knee. She explained that her shoe got caught on one of the bags. Ms. Dorsey added that she was not sure if she slipped on the liquid on the floor or if her foot became caught in a bag, but stated that she did not realize a liquid was on the floor until she ended up lying in it after the fall.

On several prior occasions, Ms. Dorsey and Ms. Allen had found the room filled with trash and had maintenance personnel move the garbage out of the way. They also complained to a maintenance worker, a maintenance supervisor, and the bank manager about the trash in the room. Although Ms. Dorsey had waited for maintenance personnel to clean the room on prior occasions, she had to reach a lock on the ATM by a certain time or the police and FBI would be alerted automatically. She explained that if she waited for the maintenance personnel, she was "going to get balled out...." Prior to entering the room on the date in question, Ms. Dorsey did not ask anyone from the Hospital to move the garbage bags for her.

We will include additional facts as necessary in our discussion of the questions presented.

DISCUSSION

I.

Union Memorial contends that the trial court abused its discretion in declining to instruct the jury on the defense of contributory negligence and in deciding that Ms. Dorsey was not contributorily negligent as a matter of law. The Hospital claims that as Ms. Dorsey saw the debris scattered about the room and had previously required maintenance personnel to clean the room, but did not ask maintenance personnel for assistance on this particular occasion and voluntarily entered the room on the date she fell, the question of her contributory negligence should have been submitted to the jury. Union Memorial further claims that the evidence presented at trial supported a finding that Ms. Dorsey was contributorily negligent as a matter of law because she realized the risks and voluntarily chose to negotiate them.

"`Contributory negligence is the failure to observe ordinary care for one's own safety. "It is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances." `" Menish v. Polinger Co., 277 Md. 553, 559, 356 A.2d 233 (1976) (quoting Kasten Constr. Co. v. Evans, 260 Md. 536, 541, 273 A.2d 90 (1971) (quoting Potts v. Armour Co., 183 Md. 483, 490, 39 A.2d 552 (1944))). "Ordinarily, the question of whether the plaintiff has been contributorily negligent is for the jury, not the judge, to decide." Campbell v. Baltimore Gas & Elec. Co., 95 Md.App. 86, 93, 619 A.2d 213, cert. denied, 331 Md. 196, 627 A.2d 538 (1993). If the plaintiff was contributorily negligent, it will bar her recovery. Casper v. Charles F. Smith & Son, Inc., 71 Md.App. 445, 472, 526 A.2d 87 (1987). The defendant carries the burden of proving that the plaintiff was contributorily negligent. Moodie v. Santoni, 292 Md. 582, 586, 441 A.2d 323 (1982).

If there is any evidence, however slight, legally sufficient as tending to prove contributory negligence, the weight and value of that evidence must be left to the jury. To be legally sufficient, the evidence must be beyond "a mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture...." Chudson v. Ratra, 76 Md.App. 753, 756, 548 A.2d 172 (1988),cert. denied, 314 Md. 628, 552 A.2d 894 (1989) (quoting Fowler v. Smith, 240 Md. 240, 247, 213 A.2d 549 (1965)). Only when the minds of reasonable persons cannot differ is the court justified in deciding the question of a plaintiff's contributory negligence as a matter of law. Moodie, 292 Md. at 589,441 A.2d 323. "`[I]f there is no evidence of acts or conduct from which reasonable minds could find or infer negligence on the part of a plaintiff, it would be error not to withdraw the issue of contributory negligence from the consideration of the jury.'" Id. at 589-90, 441 A.2d 323 (quoting Wiggins v. State, Use of Collins, 232 Md. 228, 237, 192 A.2d 515 (1963)).

But before a plaintiff can be held to be free of contributory negligence as a matter of law, "the truth of all the credible evidence tending to sustain the claim of [contributory] negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish [contributory] negligence drawn." Chudson, 76 Md.App. at 756, 548 A.2d 172 (quoting Fowler, 240 Md. at 246, 213 A.2d 549).

The flip side of this question, i.e., whether the plaintiff was contributorily negligent as a matter of law,

"must be considered in the light of all the inferences favorable to the plaintiff's case that may be fairly deduced from the evidence. Where there is a conflict of evidence as to material facts relied on to establish contributory negligence, or more than one inference may be reasonably drawn therefrom, the question should be submitted to the jury. In order that a case may be withdrawn from the jury on the ground of contributory negligence, the evidence must show some prominent and decisive act which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds."

Menish, 277 Md. at 563, 356 A.2d 233 (quoting Reiser v. Abramson, 264 Md. 372, 377-78, 286 A.2d 91 (1972)) (emphasis added). "The prominent and decisive act or omission must reveal that the injured party was or should have been aware of a dangerous situation and failed to exercise ordinary care to protect himself." G.C. Murphy Co. v. Greer, 75 Md.App. 399, 402, 541 A.2d 996 (1988).

In responding to the Hospital's request for an instruction on contributory negligence, the trial court discussed the case, to some degree, in terms of assumption of the risk. These affirmative defenses, although closely intertwined, are distinct concepts. See Schroyer v. McNeal, 323 Md. 275, 280, 592 A.2d 1119 (1991)

(citations omitted) ("Assumption of the risk and contributory negligence are closely related and often overlapping defenses. They may arise from the same facts and, in a given case, a decision as to one may necessarily include the other."); Hooper v. Mougin, 263 Md. 630, 633, 284 A.2d 236 (1971) (distinction between contributory negligence and assumption of the risk "is slight, often difficult to pinpoint and usually of little practical significance; however, this Court has recognized that some legal difference exists"); Warner v. Markoe, 171 Md. 351, 359-60, 189 A. 260 (1937) ("Contributory negligence ... means negligence which contributes to cause a particular accident which occurs, while assumption of risk of accident means voluntary incurring [the risk] of an accident which may not occur, and which the person assuming the risk may be careful to avoid after starting. Contributory negligence defeats recovery because it is a proximate cause of the accident which happens, but assumption of the risk defeats recovery because it is a previous...