Webb v. Giant of Md., LLC

• Decision Date: 21 December 2021
• Docket Number: No. 12, Sept. Term, 2021,12, Sept. Term, 2021
• Citation: 266 A.3d 339,477 Md. 121
• Parties: Karen WEBB v. GIANT OF MARYLAND, LLC
• Court: Court of Special Appeals of Maryland

477 Md. 121

266 A.3d 339

Karen WEBB

v.GIANT OF MARYLAND, LLC

No. 12, Sept. Term, 2021

Court of Appeals of Maryland.

December 21, 2021

Argued by Michael D. Reiter (ChasenBoscolo Injury Lawyers, Greenbelt, MD), on brief, for Petitioner

Argued by Stephen J. Marshall (David A. Skomba and Miranda D. Russell, Franklin & Prokopik, P.C., Baltimore, MD), on brief, for Respondent

Amicus Curiae on Behalf of the Maryland Association for Justice: John B. Bratt, Esquire, Law Office of John B. Bratt, LLC, 100 West Road, Suite 300, Towson, MD 21204, Emily C. Malarkey, Esquire, Bekman, Marder, Hopper, Malarkey & Perlin, L.L.C., 1829 Reisterstown Road, Suite 200, Baltimore, MD 21208

Argued before: Getty, C.J., McDonald, Watts, Hotten, Booth, Biran, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.

Harrell, J. Petitioner, Karen Webb, was injured while shopping at a supermarket owned and operated by Giant of Maryland, LLC, Respondent ("Giant"). Petitioner filed suit against Giant in the Circuit Court for Anne Arundel County alleging negligence and negligent hiring, training, and supervision. A jury returned a verdict in Petitioner's favor. Giant noted an appeal to the Court of Special Appeals. That Court, in a reported opinion, reversed the circuit court's judgment. The intermediate appellate court held that the circuit court erred in denying a motion for judgment made by Giant at the close of evidence and that the circuit court erred in giving a jury instruction on spoliation. Giant of Maryland, LLC v. Webb , 249 Md. App. 545, 246 A.3d 664 (2021). Petitioner sought certiorari review by this Court. We granted a writ, Webb v. Giant of Maryland, LLC , 474 Md. 633, 255 A.3d 170 (2021), to consider the following questions, which we have rephrased for clarity:

1. Did the Court of Special Appeals apply the correct standard of review when reviewing the circuit court's denial of Giant's motion for judgment?

2. Did the Court of Special Appeals err in reversing the circuit court's judgment on the grounds that the circuit court had erroneously denied Giant's motion for judgment?

3. Did the Court of Special Appeals, in reviewing the circuit court's decision to instruct the jury on spoliation, fail to address whether the circuit court's decision was an abuse of discretion and then err in holding that the instruction was prejudicial?

For reasons to be explained, we shall affirm the judgment of the Court of Special Appeals.

BACKGROUND

On 4 December 2014, Petitioner was injured while shopping in the frozen-foods section of a Giant supermarket. The injury occurred when Petitioner came in contact with a non-motorized pallet jack that was being operated by Keydonne Winzer, a PepsiCo ("Pepsi") employee. At the time, Winzer, acting as a deliveryman for Pepsi, was using the pallet jack to transport pallets of Pepsi products through the store to re-stock shelves. According to Petitioner, the pallet jack struck her in the back, which caused her to fall to the ground and become injured. It is now undisputed that, at the time of the incident, Winzer was an employee of Pepsi, not Giant.

Petitioner sued Giant for negligence and negligent hiring, training, and supervision.¹ Petitioner claimed, among other things, that Giant was liable vicariously for Winzer's actions.

Motion for Summary Judgment

Prior to trial, Giant filed a motion for summary judgment, arguing that Giant could not be held liable for the actions of Winzer. Petitioner responded that, even if Winzer was not a Giant employee, Giant nevertheless controlled many aspects of his work, including his use of the pallet jack and, thus, was liable for his actions. The circuit court denied Giant's motion, without a hearing.

Trial Testimony

At trial, Winzer testified that he was, at all relevant times, an employee of Pepsi and that he received all of his training from Pepsi. He testified further that, on the day of the incident, he was at the Giant supermarket to make sure Pepsi products were stocked. Winzer maintained that no one from Giant ever told him how to stock the Pepsi products. He added that the pallet jack he used to stock the shelves was owned by Giant and that Giant had given him permission to use the pallet jack for that purpose. Upon arriving that day at the store, he checked in with a Giant employee, as required.

Kevin Corradini, Giant's designated Corporate Representative, testified during a video deposition (played at trial) that vendors' employees, like Winzer, are permitted to use the non-motorized pallet jacks while in the store. Corradini stated that the store also has motorized pallet jacks, which may only be used by certified store employees. Vendors, like Winzer, are not instructed generally "where to move and how to move throughout the store[,]" but they are expected to do so safely while in the store. A vendor could be removed from a store if he is "not doing something properly."

Motion for Judgment²

At the conclusion of Petitioner's case-in-chief, Giant moved for judgment on the grounds that there was no evidence to support a claim for vicarious liability, given that Winzer was not an agent, servant, or employee of Giant. The circuit court denied the motion and found that there was sufficient evidence to show that Giant had the necessary control over Winzer's actions while he was in the store.

Spoliation

During his video deposition, Corradini stated that the Giant store where the incident occurred had video cameras "throughout the entire store[,]" including in the area of the frozen food section where Petitioner was injured. Prior to trial, he requested that the company that maintained Giant's security cameras retain any video of the incident. Later, he learned that no such video existed.

Prior to jury instructions, Petitioner asked the circuit court to give a spoliation instruction in light of the fact that Giant did not produce a video of the incident. Giant objected, arguing that such an instruction would be prejudicial, given that there was no evidence that a video of the incident ever existed. The circuit court agreed with Petitioner and instructed the jury as follows:

The destruction ... of or the failure to preserve evidence by a party may give rise to an inference unfavorable to that party. If you find that the intent was to conceal the evidence, this destruction or failure to preserve must be inferred to indicate that the party believes that his or her case is weak and that he or she would not prevail if the evidence was preserved. If you find that the destruction or failure to preserve the evidence was negligent you may but are not required to infer that the evidence, if preserved, would have been unfavorable to that party.

During closing argument, Petitioner's counsel emphasized the circuit court's spoliation instruction:

Another thing I really want you to pay close attention to is a spoliation instruction that the Judge gave you and I think this one is absolutely critical. You heard testimony from Giant's rep about a couple different things. You heard they have 30 plus some odd cameras in the store that point – some cameras that point directly to the frozen food section. You had the incident report. You know they were on notice that day.... We asked them to preserve the evidence.... And then we hear for the first time at trial ... [that] it definitely doesn't exist.

* * *

Do we really believe that there's no video footage of this incident? There's almost always video footage. And what I would submit is if there was footage it would probably corroborate and be consistent with Ms. Webb's description but we don't have it and that benefits them. So when you're thinking about that, what makes sense and what doesn't, just bear that instruction in mind because I do think it's really important.

The Court of Special Appeals

The jury returned a verdict in favor of Petitioner, and Giant noted an appeal to the Court of Special Appeals. Giant argued that the circuit court erred in denying its motion for summary judgment prior to trial and in denying its subsequent motion for judgment at the close of evidence. Giant also argued that the court erred in giving the spoliation instruction.³

The Court of Special Appeals reversed the circuit court's judgment and held that, although the circuit court did not err in denying Giant's motion for summary judgment, the court did err in denying Giant's motion for judgment. Giant , 249 Md. App. at 560-66, 246 A.3d 664. Regarding the motion for summary judgment, the Court noted that the denial of a motion for summary judgment is reviewed for abuse of discretion. Id. at 559, 246 A.3d 664. The Court noted further that a trial court may exercise its discretion to deny a motion for summary judgment even though there are no disputes of material fact and the moving party may be entitled to judgment as a matter of law. Id. at 560, 246 A.3d 664. The Court explained that it was "not persuaded" that the circuit court's denial of Giant's "technically sufficient motion for summary judgment in favor of a full hearing on the merits" constituted an abuse of discretion. Id. (quotations omitted).

As to its consideration of Giant's argument regarding the motion for judgment, the Court set forth the following standard of review:

When we review a trial court's ruling on a motion for judgment, we ask:

whether on the evidence adduced, viewed in the light most favorable to the non-moving party, any reasonable trier of fact could find the elements of the tort by a preponderance of the evidence.... If there is even a slight amount of evidence that would support a finding by the trier of fact in favor of the plaintiff, the motion for judgment should be denied.

Id. at 560-61, 246 A.3d 664 (citation omitted) (alterations in original).

The Court evaluated Giant's contention that "there was insufficient evidence to support the existence of an employment relationship between Giant and [ ] Winzer and therefore no grounds for Giant to be vicariously liable for [ ] Winzer's actions." Id. at...