Opinion
Civil No. CCB-07-2658.
May 1, 2008
MEMORANDUM
Ciriano Piceno ("Mr. Piceno") has sued Wal-Mart Stores, Inc. ("Wal-Mart") for negligence stemming from a slip-and-fall incident in one of Wal-Mart's stores. Now pending before the court is Wal-Mart's motion for summary judgment. The issue has been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons articulated below, Wal-Mart's motion will be denied.
BACKGROUND
On October 22, 2005, Mr. Piceno, who had entered the Hunt Valley Wal-Mart store to use the restroom, slipped and fell on what he alleges was water on the floor. Mr. Piceno had driven his wife to Wal-Mart and dropped her off at the entrance to the store. He then parked the car and waited in the parking lot. He did not intend to join his wife inside the store. After about a half hour, however, Mr. Piceno left his car and entered the store to use the restroom. While walking towards the restroom, which was located approximately fifteen feet inside the front door, Mr. Piceno slipped and fell to the floor. Mr. Piceno says that, prior to falling, he noticed a "housekeeping cart" between the doors leading to the men's and women's restrooms. Mr. Piceno states that while he was lying on the floor, he realized that the floor must have been mopped because his clothes and hand were wet.
In October 2007, Mr. Piceno sued Wal-Mart for negligence. He claimed that Wal-Mart "did not use ordinary care to see that the premises on which it had invited the Plaintiff to enter were safe nor did they give him reasonable notice of the unsafe condition." (Compl. ¶ 5A.) Wal-Mart has moved for summary judgment, arguing that Mr. Piceno was a "bare-licensee" and was owed no duty except that he may not be willfully or wantonly injured or entrapped once his presence is known. Wal-Mart also argues that Mr. Piceno has failed to plead a prima facie case of negligence because he has failed to show how long the dangerous condition existed.
ANALYSIS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, (1986) (emphasis in original).
"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
Mr. Piceno's Status
Wal-Mart argues first that it breached no duty to Mr. Piceno because, as a licensee rather than an invitee, the only duty he was owed by Wal-Mart was that he not be willfully or wantonly injured or entrapped once his presence was known. Mr. Piceno counters that he was a business invitee under the mutual benefit theory or, alternatively, under the implied invitee theory. Although Mr. Piceno had no intention of entering the store to help his wife with her shopping, in this case there is sufficient evidence from which a reasonable jury could conclude that Mr. Piceno was a business invitee.
The Restatement (Second) of Torts makes it clear that, to be considered a business invitee, "[i]t is not necessary that the visitor shall himself be upon the land for the purposes of the possessor's business." Restatement (Second) Torts § 332 cmt. g. Indeed, when the plaintiff's visit arises out of convenience or necessity to someone who is on the premises to conduct business, the plaintiff may still considered a business invitee. Id. The example is often given of a child who accompanies a parent on a shopping errand in the store; the child has no intention of purchasing anything at the store but is considered an invitee nonetheless. See id.; see also Hartley v. Macon Bacon Tune, 507 S.E.2d 259, 261 n. 2 (Ga.App. 1998), Orr v. First Nat'l Stores, Inc., 280 A.2d 785, 789 (Me. 1971) (noting that child is a business invitee "regardless of whether the mother could have readily made other arrangements to avoid having her young child with her while she is shopping"). Where, as here, the plaintiff was upon the premises to drive his wife to and from the store, the fact that he entered the store not to join his wife shopping but to use the restroom would not change his status.
The Fourth Circuit has pointed to the example of a father providing transportation for his daughter to and from a restaurant, affirming the district court's decision that the father was a business invitee rather than a licensee. Bass v. Hardee's Food Sys., 229 F.3d 1141 (4th Cir. 2000) (unpublished).
In support of its argument, Wal-Mart points to Deboy v. City of Crisfield, et al., 893 A.2d 1189 (Md.App. 2006). In that case, the plaintiff was walking her dogs on the defendant's land when she injured herself. Although the plaintiff had, on occasion, stopped to purchase sundry items from the defendant, she had no intention of stopping on the day she was injured; her sole purpose was walking her dogs. 893 A.2d at 1195. That case is distinguishable: here, the plaintiff was not randomly walking through the area when he found himself needing to enter the store; he had accompanied his wife on her shopping errand. At a minimum, there is sufficient evidence for a reasonable jury to conclude that Mr. Piceno was an invitee under the mutual benefit theory. Prima Facie Negligence Case
Wal-Mart also alleges that Mr. Piceno has failed to establish a prima facie case of negligence because he "cannot show by any evidence that the injuries sustained were a direct consequence of negligence on the part of" Wal-Mart. (Def's Mot. Summ. J. 13.) Specifically, Wal-Mart challenges Mr. Piceno's allegation that Wal-Mart had "actual and constructive notice" of the water on the floor, (Compl. ¶ 5), and claims that "there must either be specific evidence that the defendant or its employee created the condition or actually observed the condition (actual notice), or there is some admissible evidence to establish that the specific hazardous condition remained on the floor for a substantial length of time before the incident (constructive notice)." (Def's Mot. Summ. J. 15.)
Assuming that Mr. Piceno was a business invitee, Wal-Mart had a duty to exercise ordinary care to keep the premises in a reasonably safe condition for his use. See Rawls v. Hochschild, Kohn Co., 113 A.2d 405, 407 (Md. 1955). A proprietor can be liable for physical harm to an invitee caused by a condition of the premises if he or she: (a) knows or by exercise of reasonable care could discover the condition, (b) should expect that the invitee will not discover the danger, or will fail to protect herself against it, and (c) invites entry upon the land without (1) making the condition safe, or (2) giving a warning. See Mondawmin Corp. v. Kres, 266 A.2d 8, 12-13 (Md. 1970).
A store operator is not, however, the insurer of an invitee's safety. Maans v. Giant of Maryland, LLC, 871 A.2d 627, 631 (Md.App. 2005) (citing Moulden v. Greenbelt Consumer Svcs., 210 A.2d 724, 726 (Md. 1965). In Maryland, "[t]he burden is upon the customer to show that the proprietor created the dangerous condition or had actual or constructive knowledge of its existence." Moulden, 210 A.2d at 726.
Wal-Mart claims that Mr. Piceno must also prove that "the knowledge was gained in sufficient time to give [the proprietor] the opportunity to remove it or to warn the invitee." Joseph v. Bozzuto Mgt. Co., 918 A.2d 1230, 1235 (Md.App. 2007) (citing, inter alia, Rehn v. Westfield America, 837 A.2d 981 (Md.App. 2003) and Moulden, 210 A.2d 724). It is true that "[i]n terms of constructive knowledge, it is necessary for the plaintiff to show how long the dangerous condition has existed." Joseph, 918 A.2d at 1236. Thus, the "time on the floor" rule appears to apply where the hazard is created by a third party; where, as here, the plaintiff alleges that the proprietor himself created the dangerous condition, the question of notice is less relevant.
In this case, Mr. Piceno has presented evidence sufficient to prove that he slipped on water, which was on the floor because the floor recently had been mopped by a Wal-Mart employee. Mr. Piceno testified in his deposition that when he fell, he "felt the water when [he] hit the pavement," that after he fell he observed water on his shirt, his hand, and on the side of his pants, and that when he was "laying down on the tile," he saw that the "whole area" was "fully engulfed" in water. (Def's Mot. Summ. J. Ex. A at 28-29.) Although he admits that he never saw a Wal-Mart employee with a mop in hand, he assumed that the floor had been mopped "[b]ecause there was a mop on the cart in front of the men's room," which he observed before he fell. ( Id. at 30.) Mrs. Piceno testified that although it was foggy and misty that day, it was not raining, (Pl's Opp'n 27), making it unlikely that the water had been tracked into the store by customers coming in from the rain.
The Maryland Court of Appeals has found that there is not sufficient evidence to prove actual knowledge where the plaintiff alleges only that store employees occasionally "spot mop" the floor, without any suggestion that an employee had recently mopped the area. Maans, 871 A.2d at 635. The court held that given the evidence, "[t]he only way the jury could conclude that the water on the floor was caused by spot mopping would be if the jury engaged in raw speculation or conjecture, which is forbidden." Id.; see also Moulden, 210 A.2d at 726 (upholding granting of motion for directed verdict where plaintiff had failed to allege how the green bean on which she slipped had gotten there, or how long it had been on the floor). Here, Mr. Piceno's observation of a mop and bucket near the site of his fall would be sufficient to allow the jury reasonably to conclude that the area had been recently mopped.
For the foregoing reasons, Wal-Mart's motion for summary judgment will be denied. A separate order follows.