Opinion
CIVIL 8:20-cv-00067-GLS
09-23-2021
DAVID REBERT, Plaintiff, v. BROOK FURNITURE RENTAL, INC., et al., Defendants.
MEMORANDUM OPINION
Gina L. Simms United States Magistrate Judge
Pending before this Court are the following motions: (1) a motion for summary judgment filed by Defendant USA Rack Installations, LLC. (“USA Rack”) (ECF No. 49) (“USA Rack's Motion”); and (2) a motion for summary judgment filed by Defendant Brook Furniture Rental, Inc. (“Brook Furniture”) (ECF No. 50) (“Brook Furniture's Motion”). The issues have been fully briefed. (ECF Nos. 55, 57, 59). Upon review of the pleadings and the record, the Court finds that no hearing is necessary. See L.R. 105.6. For the reasons set forth below, USA Rack's summary judgment motion against Plaintiff is DENIED; and Brook Furniture's summary judgment motion against Plaintiff is DENIED.
I. BACKGROUND
A. Procedural Background
On July 22, 2019, Plaintiff filed a Complaint alleging negligence, negligence per se, and negligent hiring, training, and supervision against Brook Furniture, USA Rack, and Defendant PPF LPC 9950 BUSS PKWY LLC. (ECF No. 1). On January 9, 2020, USA Rack filed its Answer and Notice of Removal from Prince Georges County's Circuit Court to this federal court. (ECF No. 1; See also ECF No. 7). On January 10, 2020, Plaintiff filed a Motion for Default Judgment as to Defendant PPF LPC 9950 BUSS PKWY LLC. (ECF No. 6). On January 17, 2020, USA Rack filed a “Motion for Judgment on the Pleadings.” (ECF No. 15). The Honorable Theodore Chuang denied ECF No. 15 without prejudice and scheduled a pre-motion conference for January 30, 2020. (ECF No. 16). On January 28, 2020, USA Rack filed a “Notice of Intent to file a Motion” seeking leave to file a “Motion for Judgment on the Pleadings, ” pursuant to Fed.R.Civ.P. 12(c). (ECF No. 17). According to USA Rack, the Complaint lacked the requisite factual specificity to allow the Court to infer what negligent acts USA Rack allegedly committed. (Id.). On January 30, 2020, the Honorable Theodore Chuang held a Case Management Conference, during which the parties discussed ECF No. 17. (ECF No. 20). Judge Chuang granted Plaintiff leave to file an amended complaint by February 14, 2020. (ECF No. 21).
On January 31, 2020, the Honorable Theodore Chuang dismissed all claims against Defendant PPF LPC 9950 BUSS PKWY LLC. (ECF No. 22).
On February 11, 2020, this case was referred to the undersigned for all further proceedings. (ECF No. 24). On February 14, 2020, Plaintiff filed an Amended Complaint alleging negligence, negligence per se, and negligent hiring, training, and supervision against Defendant Brook Furniture Rental, Inc., and USA Rack. (ECF No. 26).
On March 6, 2020, USA Rack filed a letter notifying the Court of its intent to file the following motions: (1) Motion to Dismiss and/or Strike Amended Complaint for Failure to Comply with Local Rule 103(6)(c); (2) Motion to Dismiss Amended Complaint for Failure to State a Claim; (3) Motion to Dismiss Count 3 (negligence per se); and, as alternative relief, (4) Motion for More Definite Statement. (ECF No. 29). In response, Plaintiff sought leave from the Court to file a second amended complaint. On April 21, 2020, this Court granted Plaintiff's Motion for Leave to File a Second Amended Complaint and denied USA Rack's request to file its motions. (ECF No. 37).
On May 29, 2020, Plaintiff filed his Second Amended Complaint, alleging various forms of negligence against Brook Furniture and USA Rack. Plaintiff maintains that he suffered severe injuries after he was struck by an unsecured steel beam on August 16, 2016. (ECF No. 39, “Second Amended Complaint, ” ¶ 12). In particular, Plaintiff asserts that Brook Furniture was negligent for failing to protect him from injury while he was working in a warehouse that it leased. (“Second Amended Complaint, ” ¶¶ 27-35). Plaintiff also contends that USA Rack was negligent for failing to ensure its employees safely disassembled the racks in Brook Furniture's warehouse. (Id., ¶¶ 55-68). USA Rack filed its Answer to Plaintiff's Second Amended Complaint on June 17, 2020.(ECF No. 40, “USA Rack's Answer”).
Brook Furniture did not file a separate answer to Plaintiff's Second Amended Complaint because the amendments to the Second Amended Complaint related only to alleged conduct by USA Rack. (See ECF No. 39-1, pp. 2-3).
Presently, what remains are the following counts in the Second Amended Complaint: Count 1, negligence, against Brook Furniture; Count 2, negligence, against USA Rack; Count 6, agency, against Brook Furniture; and Count 7, agency, against USA Rack. Regarding Plaintiff's prayer for relief, only issues related to medical expenses and pain and suffering remain. (See ECF No. 59, (“Plaintiff's Opposition to USA Rack's Motion”), p. 16).
Regarding Counts 3, 4, and 5 they have been withdrawn. (See ECF No. 59) (“Plaintiff's Opposition to USA Rack's Motion, ” p. 16). Count 3 had alleged negligence per se against Brook Furniture; Counts 4 and 5 had alleged negligent hiring, training, and supervision against Brook Furniture and USA Rack respectively. (Second Amended Complaint, ¶¶ 73-75).
The aforementioned summary judgment motions were filed by USA Rack and Brook Furniture at the close of discovery.
Plaintiff filed amended oppositions to Brook Furniture's and USA Rack's motions for summary judgment respectively, on May 26, 2021 and May 27, 2021. (ECF No. 57, “Plaintiff's Opposition to Brook Furniture's Motion”); (ECF No. 59, “Plaintiff's Opposition to USA Rack's Motion”). Plaintiff amended his responsive pleadings to include references to the parties' joint exhibit list.
B. Factual Background
A. August 16, 2016 Incident
The following facts are undisputed. The instant case stems from an August 16, 2016 incident that occurred in a warehouse leased by Brook Furniture, which is located at 9950 Business Parkway in Lanham, Maryland (“the warehouse”). (J.R. Exhibit 13, p. 501, Deposition of Annie Marie Hart (“Hart Dep.”): 29:18-30:3). Brook Furniture stored its inventory in that warehouse using a large metal racking system. (Hart Dep.: 32:5-9, 72:12-73:3). The racking system in the warehouse consisted of at least five rows of racks that were approximately 200 feet long and 25 feet tall. (J.R. Exhibit 1, p .10, Deposition of Andrew Rupert (“Rupert Dep.”); 22:2-10).
Plaintiff David Rebert was employed by JK Moving and Storage, Inc. (“JK Moving”). (J.R. Exhibit 2, p. 82, Deposition of David Rebert (“Rebert Dep.”): 42:8-19). Brook Furniture hired JK moving to move the furniture stored on the metal racks at the warehouse to another Brook Furniture storage location. (Hart Dep.: 33:15-20). The contractual agreement between Brook Furniture and JK Moving required Brook Furniture to have a supervisor on site at the warehouse. (J.R. Exhibit 14, p. 554, Scope of Services Agreement; Hart Dep.: 51:11-15).
Brook Furniture also hired a contractor to disassemble the metal racking system, which in turn subcontracted that work to USA Rack. (J.R. 12, p. 459, Deposition of Miguel Suarez Hernandez (“Hernandez Dep.”): 64:17-65:3). Rob Prium, a Brook Furniture employee, was responsible for communicating with JK Moving and USA Rack about their work at the warehouse and informed JK Moving that USA Rack would be on site dismantling the racking system at the same time as JK Moving. (Hart. Dep.: 77:18-78:9).
USA Rack was the only contractor at the warehouse tasked with dismantling the racking system at the time of the incident. (Hernandez Dep.: 65:4-67:5). USA Rack's safety policy required its employees to place safety cones around the perimeter of a worksite whenever “working with other contractors on site.” (J.R. Exhibit 15, p. 613, USA Rack Safety Rules 2016-2017 (“USA Rack Safety Rules”); Hernandez Dep.: 18:22-19:7). USA Rack's corporate designee testified that the company's safety cone policy was intended to keep persons who were not employees of USA Rack out of the rack disassembly areas because they are construction sites. (Hernandez Dep.; 78:14-18). These facts are clearly undisputed and relevant.
The following facts are also undisputed. On August 15, 2016, Plaintiff and Mr. Rupert were removing pieces of furniture from the bottom section of a rack when a hammer fell from the upper levels of the rack, nearly hitting Plaintiff and Mr. Rupert. (Rebert Dep.: 69:12-71:4), (Rupert Dep.; 34:6-35:3). Following this incident, Plaintiff and Mr. Rupert expressed concerns to their supervisor at JK Moving, Luis Ruiz, about the risk of working without a hardhat in close proximity to the USA Rack employees. (Rebert Dep.: 69:1-72:18; Rupert Dep: 34:2-41:12). Plaintiff told his supervisor that “what is going on, this is unsafe. That's a life-threatening injury right there. We need to put on some hard hats.” (Rebert Dep.: 69:4-11). The JK Moving supervisor told Plaintiff and Mr. Rupert that they could keep working or leave the job site without pay. (Rupert Dep.; 88:10-16). Plaintiff and Mr. Rupert remained at the warehouse and kept working. (Rebert Dep.: 71:15-20).
The record reflects two different dates on which the hammer fell from the rack and almost struck Plaintiff and Mr. Rupert. Plaintiff testified that the hammer fell from the racks the day before Plaintiff was struck by the falling beam. (Rebert Dep.: 69:1-71:20). Mr. Rupert testified that hammer fell from the racks on the same day as the incident, approximately one hour before Plaintiff was struck by the falling beam. (Rupert Dep.: 34:6-35:3).
On the following day, August 16, 2016, Plaintiff was tasked with taking inventory of furniture located near the warehouse's loading bays. (Rebert Dep.: 73:11-75:19). This was a different assignment in a different area of the warehouse than where Plaintiff had been working the previous day. (Rebert Dep.: 73:11-75:19). Rob Prium, Brook Furniture's primary point of contact for JK Moving and USA Rack, was “in and out of the warehouse” that day. (Hart Dep.: 76:8-13). At the time of the incident, USA Rack employees were disassembling part of the racking system. (Hernandez Dep.: 67:1-4). While USA Rack was dismantling one of the racks, a safety pin broke. (Hernandez Dep.: 43:19-44:8). A large steel beam fell from the rack USA Rack was disassembling, hit the forks of a forklift, and then fell to the ground striking Plaintiff and knocking him unconscious. (Rupert Dep: 53:20-54:15; Rebert Dep.: 80:9-81:16, 82:3-9; Hernandez Dep., 41:8-12). Plaintiff suffered injuries to his head and neck. (Rebert Dep.: 100:1-105:20).
Just prior to the incident, Plaintiff heard falling metal. (Rebert Dep.: 80:7-81:6). Plaintiff said that it “was loud because they are throwing metal off.” (Id.). Plaintiff did not see the object that struck him (Rebert Dep.: 81:7-9), and was not wearing a hardhat at the time of the incident. (Rebert Dep.: 73:8-21; Hernandez Dep.; 73:7-12).
The following facts are in dispute. First, there is a question whether cones were placed around the permitter of the racks that USA Rack employees were disassembling at the time of the incident. According to Plaintiff and Mr. Rupert, USA Rack employees did not place any cones around the racks they were disassembling. (Rebert Dep.: 78:7-14; Rupert Dep: 42:14-22). Plaintiff also contends that pictures taken of the area where the incident occurred, immediately after the incident, do not show any safety cones. (J.R. Exhibits 16, 17, 18). USA Rack counters that six or eight safety cones had been placed around the area where the incident occurred. (Hernandez Dep.: 78:9-79:1).
Also in dispute is whether Plaintiff, at the time of the incident, entered the area of the warehouse where USA Rack employees were dismantling a section of the racking system. Plaintiff contends that he was inspecting a piece of furniture approximately 23 yards from where the USA Rack employees were working at the time of the incident. (Rebert Dep.: 80:7-81:6). Plaintiff's coworker, Andrew Rupert, testified that Plaintiff was ten feet from the forklift when he was struck by the metal beam. (Rupert Dep.: 60:6-9). USA Rack counters that Plaintiff was within the area marked by the orange safety cones when the incident occurred. (Hernandez Dep.: 78:19-22, 79:12). USA Rack's corporate designee testified that Plaintiff voluntarily entered the area where USA Rack employees were working to try and help them stop the rack from collapsing at the time of the incident. (Hernandez Dep.: 40:11-41:12).
II. STANDARD OF REVIEW
USA Rack and Brook Furniture have moved for summary judgment. Motions for summary judgment shall be granted only if there are no genuine issues as to any material fact, such that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of showing that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(a); Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987) (internal citation omitted). The burden can be satisfied through the submission of, e.g., pleadings, depositions, answers to interrogatories, admissions, and affidavits. Celotex Corp., 477 U.S. at 323; Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). To defeat motions for summary judgment, on the other hand, the nonmoving party cannot simply cast “metaphysical doubt” on the material facts, but rather must provide specific facts demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citing Fed.R.Civ.P. 56(e)).
The Court must construe the facts and documentary materials submitted by the parties, including the credibility and weight of particular evidence, in the light most favorable to the party opposing the motions. Masson v. N.Y. Magazine, Inc., 501 U.S. 496, 520 (1991) (citing Anderson, 477 U.S. at 255). A mere scintilla of evidence is insufficient to create an issue of material fact. See Barwick, 736 F.2d at 958-59 (citing Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 632 (E.D.N.C 1966)). Summary judgment is inappropriate if any material factual issue “may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250.
III. ANALYSIS
A. USA Rack
USA Rack moves for summary judgment on the following grounds with respect to Count 2: (1) the evidence taken in the light most favorable to the Plaintiff demonstrates that he assumed the risk of his injuries; and (2) Plaintiff has failed to produce sufficient evidence that USA Rack's negligence proximately caused his injuries. (USA Rack's Motion, p. 12). Regarding Count 7, USA Rack argues that it is entitled summary judgment on Plaintiff's agency claim because it is directly linked to Plaintiff's negligence claim, which fails as matter of law. (USA Rack's Motion, p. 23).
Next, regarding Plaintiff's claim for damages related to his lower back injury (i.e., past medical expenses), USA Rack claims those expenses are barred by the doctrine of collateral estoppel. Finally, Defendant USA Rack argues that Plaintiff, in his disclosure of damages, failed to assert a claim for future medical expenses.
As a preliminary matter, this Court RESERVES ruling on the issues related to damages (past and future medical expenses) until necessary. In other words, if this matter is scheduled for trial, issues related to damages will be resolved by no later than the pretrial conference. Accordingly, Defendants' motions for summary judgment related to the issue of damages is DENIED as premature.
B. Brook Furniture Rental
Defendant Brook Furniture Rental moves for summary judgment on the following grounds. First, with respect to Count 1, Brook Furniture argues that Plaintiff's withdrawal of his liability expert has doomed his negligence claim. According to Brook Furniture, without an expert, Plaintiff cannot establish the duty of care owed to him by Brook Furniture, nor whether Brook Furniture breached that duty. (Brook Furniture's Motion, pp. 4-5). Second, Brook Furniture joins Defendant USA Rack in arguing that Plaintiff assumed the risk of his injuries. (Id., p. 5). Third, Brook Furniture' attempts to argue that contributory negligence also bars Plaintiff's claims. However, for the reasons set forth below, the Court will deny summary judgment on this issue. Fourth, regarding Count 6, Brook Furniture avers that it too is entitled to summary judgment on Plaintiff's agency claim because there is not a separate cause of action for negligence and Plaintiff's negligence claim fails as a matter of law. (Id., p. 7).
C. Specific Legal Issues
1. Agency
In Counts 6 and 7, Plaintiff asserts a claim of agency against USA Rack and Brook Furniture. The Court understands Plaintiff to be invoking the doctrine of respondeat superior. Under Maryland law, “there is no separate cause of action for respondeat superior; rather, it is a doctrine that imputes liability to a cause of action to a principal.” Stewart v. Bierman, 859 F.Supp.2d 754, 768 n.8 (D. Md. 2012). Thus, Defendants are correct that there is not a separate cause of action for agency. The Court notes that Plaintiff never addresses the agency argument raised by the Defendants. Therefore, if summary judgment is granted against Plaintiff on Counts 1 and 2, it will similarly be granted against Plaintiff on Counts 6 and 7.
2. Contributory Negligence
The Court denies summary judgment on the basis that Plaintiff was contributorily negligent for the following reasons. Defendant USA Rack claims, erroneously so, that it asserted an argument for contributory negligence in its initial pleading. That is not the case. Indeed, a review of ECF No. 49-2, p. 31, reveals that the section cited by USA Rack in it is Reply pleading does not exist. Therefore, this Court will not allow USA Rack to assert a contributory negligence argument.
In its Reply, USA Rack cites to Section III(E) of its Motion to Dismiss. (ECF No. 55, p. 14). However, a review of USA Rack's Motion reveals that Section III(E) does not exist.
Brook Furniture joins in the motion for summary judgment filed by USA Rack, including USA Rack's contributory negligence argument. (ECF No. 50, p. 1). By joining USA Rack's motion for summary judgment, Brook Furniture adopted the facts set out in USA Rack's Motion. However, neither Brook Furniture nor USA Rack cite to any facts in the record that support a finding of contributory negligence.
Accordingly, both USA Rack's and Brook Furniture's motions for summary judgment are DENIED as to their contributory negligence argument.
3. Insufficient Evidence on Negligence - USA Rack
USA Rack contends that it is entitled to summary judgment as a matter of law on Plaintiff's negligence claim for two reasons. First, USA Rack asserts that Plaintiff has failed to: (a) provide evidence establishing that USA Rack caused the beam to fall that injured him; and (b) establish that USA Rack maintained control over the area where Plaintiff was injured. (USA Rack's Motion, pp. 17-18). Second, USA Rack argues that without an expert witness to testify about liability, Plaintiff cannot establish the applicable standard of care owed to him by USA Rack. (Id., p. 19).
To establish a claim for negligence under Maryland law, “‘a plaintiff must allege facts showing that: (1) the defendant owes the plaintiff a duty of care; (2) the defendant breached that duty; (3) the plaintiff sustained an injury or loss; and (4) the defendant's breach of the duty was the proximate cause of the plaintiff's injury.'” Collington v. Maryland, Civ. No. GJH 20-966, 2021 WL 3172275, at *12 (D. Md. July 26, 2021) (quoting Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP, 155 A.3d 445, 451 (Md. 2017)).
a. Expert Testimony
Although not clearly articulated, Plaintiff appears to argue that USA Rack owed him a duty of ordinary care-established by USA Rack's safety policy-to use safety cones to secure the area where USA Rack's employees were working. (ECF No. 59, p. 15). USA Rack counters that without an expert witness, Plaintiff cannot establish the duty or standard of care owed by USA Rack to the employee of another contractor at a multi-employer worksite. (ECF No. 55, p. 7).
Under Maryland law, “expert testimony is required when the subject of the inference of negligence is so particularly related to some science or profession that it is beyond the ken of average laymen.” Asmussen v. CSX Transp., Inc., 237 A.3d 908, 925 (Md. Ct. Spec. App. 2020) (citations omitted). For example, Maryland courts have repeatedly held that “the business of operating a railroad entails technical and logistical problems with which the ordinary laymen has had little or no experience.” Id.; Shutter v. CSX Transp., Inc., 130 A.3d 1143, 1155 (Md. Ct. Spec. App. 2016). However, where the negligence alleged falls within the ken of the average juror, no expert testimony is required. Asmussen, 237 A.3d at 926. Put differently, “[a]s long as there is sufficient evidence of record for an average juror to determine that the defendant's conduct was not that of a prudent person, expert testimony is not required to establish that the defendant beached the applicable standard of care.” Adams v. NVR Homes, Inc., 135 F.Supp.2d 675, 715 (D. Md. 2001). And even in cases alleging negligence by a professional, in which expert testimony is usually needed to establish the required standard of care, no expert is required where “the alleged negligence, if proven, would be so obviously shown that the trier of fact could recognize it without expert testimony.” Schultz v. Bank of America, 990 A.2d 1078, 1086-87 (Md. 2010).
USA Rack relies on Roman v. Sage Title Group, LLC, 146 A.3d 479 (Md. Ct. Spec. App. 2016), for the proposition that expert testimony is required to establish what, if any, duty and standard of care USA Rack owed to Plaintiff. At issue in Roman was whether expert testimony was required to establish the standard of care owed by a title company to an individual who was not a customer, but who had deposited funds in escrow with the title company. Id. at 495. The Maryland Court of Special Appeals held that expert testimony was required to establish the duty of care “because most lay people are not familiar with the operation of escrow accounts, nor with the standard of care a title company owes to individuals who are not customers but deposit funds with the title company.” Id. The Court of Special Appeals also held that expert testimony was required to establish whether the title company needed to have a policy governing such transactions because a jury would not know whether the standard of care required the title company to have such a policy. Id.
USA Rack's reliance on Roman is inapposite. Construing the evidence in the light most favorable to Plaintiff, a reasonable jury could find that USA Rack had a safety policy that required it to use safety cones when working with other contractors. (See USA Rack Safety Rules 20162017). The jury could find that this fact, coupled with the testimony of USA Rack's corporate designee, (see Hernandez Dep.: 78:12-18), evidenced the Defendant's belief that it had a duty of care to protect workers onsite. Therefore, no expert testimony is required.
b. Duty of USA Rack
This Court recognizes that it is certainly generally true that “the existence of a legal duty is a question of law to be decided by the Court.” Corinaldi v. Columbia Courtyard, Inc., 873 A.2d 483, 489 (Md. Ct. Spec. App. 2005). However, “[w]hen the existence of a legal duty depends on a determination of a dispute of material fact, the facts should first be determined by the fact finder.” Id. The Maryland Court of Appeals has explained that “‘[a] duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.'” Valentine v. On Target, Inc., 727 A.2d 947, 950 (Md. 1999) (quoting Prosser and Keaton on the Law of Torts, § 30, at 356 (5th ed. 1984)). A duty “does not exist in a vacuum.” Id. Rather, whether a duty exists “‘is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same-to conform to the legal standard of reasonable conduct in the light of the apparent risk.'” Id. (quoting Prosser and Keaton on the Law of Torts, supra, at 356)).
Under Maryland law, to determine whether a defendant in a negligence case owes a duty to the plaintiff, a court must weigh the following factors:
the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.Remsburg v. Montgomery, 831 A.2d 18, 26 (Md. 2003) (citation omitted). Of particular import to this analysis is the relationship between the plaintiff and defendant and the foreseeability of harm to the plaintiff. See Gourdine v. Crews, 955 A.2d 769, 783 (Md. 2008) (citation omitted) (“Where the failure to exercise due care creates risks of personal injury, the principal determinant of duty becomes foreseeability.”).
This Court's analysis of whether USA Rack owed a duty of ordinary care to the Plaintiff is straightforward, particularly as Maryland law recognizes that “[t]he duty owed by a subcontractor on a construction contract to the employees of other contractors on the job is similar to, and no greater than, that owed by an employer to an employee or the owner of real property to an invitee on the premises.” Finkelstein v. Vulcan Rail & Const. Co., 168 A.2d 393, 394 (Md. 1961). The decision of the Maryland Court of Appeals in Finkelstein v. Vulcan Rail & Construction Company is instructive. In Finkelstein, the Court of Appeals affirmed the directed verdict of the trial court where the claimant failed to produce any evidence that the defendant negligently installed a bolt on a catwalk that caused the claimant injuries. Id. In doing so, the Court of Appeals cited the claimant's failure to offer any probative testimony that the installation of the bolt was “not the ordinary method customarily employed or that it was not in accordance with good practice in the trade.” Id.
Here, however, construing the evidence in the light most favorable to the Plaintiff, a reasonable factfinder could conclude that USA Rack's safety policy is evidence that USA Rack understood that it had a duty to protect individuals from the dangers inherent in dismantling metal racking storage systems. That jury could also conclude that USA Rack's corporate designee understood that the company's safety cone policy was intended to keep non-employees, including contractors working at the same worksite, from entering the area where USA Rack's employees were dismantling racks. (Hernandez Dep.: 18:22-19:7, 78:14-18; USA Rack Safety Rules). The factfinder could also conclude that Plaintiff, as a contractor working at the same worksite as USA Rack, was within the class of individuals that USA Rack's safety policy was explicitly intended to protect. And a reasonable jury could further conclude that the harm Plaintiff experienced-injury caused by a beam that fell from a rack being dismantled by USA Rack-is the kind of harm USA Rack's safety cone policy was designed to prevent. Therefore, this Court finds that Plaintiff has presented sufficient evidence of a dispute of material fact as to whether USA Rack owed Plaintiff a duty of ordinary care to protect him from injury by deploying safety cones in accordance with the company's safety policy.
USA Rack also argues that Plaintiff cannot establish USA Rack owed him a duty of care under Maryland Occupational Safety Health (“MOSH”) regulations because Plaintiff was not employed by USA Rack. (USA Rack's Motion at pp. 17-18). Relatedly, USA Rack contends that Plaintiff cannot establish it owed him a duty of care under federal Occupational Safety and Health Administration (“OSHA”) regulations because Maryland law does not recognize the “multi-employer worksite doctrine” or the “creating employer citation policy.” (USA Rack's Motion, p. 18). However, Plaintiff only alleges that USA Rack owed him an ordinary duty of care under Maryland common law. (Plaintiff's Opposition to USA Rack's Motion, pp. 13-15). The Court agrees with Plaintiff that only an ordinary duty of care is required. See Finkelstein, 168 A.2d at 394.
USA Rack also appears to argue that Plaintiff has not offered evidence to establish that USA Rack both created the alleged hazard and maintained control over the workplace such that it owed him a duty of care. Relatedly, USA Rack argues that Plaintiff cannot establish that USA Rack was the cause in fact of his injuries because he failed to identify any evidence establishing what caused the metal beam to fall and strike him. (USA Rack's Motion, pp. 18-19). This Court disagrees. Construing the evidence in the light most favorable to the Plaintiff, a jury could find that USA Rack's corporate designee testified that USA Rack employees were disassembling the racking system at the time of the incident when a safety pin broke, causing a crossbeam to come apart. (Hernandez Dep.: 43:19-44:9, 57:22-58:7). In addition, as stated previously, the Court finds that there exists a genuine dispute of material fact regarding whether USA Rack placed cones around the rack prior to the crossbeam collapsing. Accordingly, this Court concludes that a reasonable jury could find that there is sufficient evidence from which to infer that USA Rack caused the crossbeam that injured Plaintiff to fall. That jury, construing the facts in Plaintiff's favor, could also find that USA Rack maintained control over the rack and the area around it at the time of the incident. Therefore, USA Rack's motion for summary judgment based on this argument is denied.
c. Res Ipsa Loquitor
In the alternative, Plaintiff argues that he can rely on the doctrine of res ipsa loquitor to establish negligence on the part of USA Rack. (Plaintiff's Opposition to USA Rack, p. 19). USA Rack avers that Plaintiff is precluded as a matter of law from relying on the doctrine of res ipsa loquitor to establish USA Rack's negligence because: (1) Plaintiff cannot establish that USA Rack had exclusive control over the racks at the time of the incident; and (2) cannot establish that accident was not caused by Plaintiff's own acts or omissions. (USA Rack's Motion, pp. 21-22).
“The doctrine of res ipsa loquitor allows a plaintiff the opportunity to establish a prima facie case when he or she could not otherwise satisfy the traditional requirements for proof of negligence.” Gillespie v. Ruby Tuesday, Inc., 861 F.Supp.2d 637, 641 (D. Md. 2012) (citation omitted). The doctrine “describes a set of evidentiary conditions that permit, but do not require, a fact finder to infer negligence based upon proof that certain facts are more probable than not.” Id. (citation omitted). Put differently, the doctrine, where applicable, permits a jury to infer negligence as to the cause of the accident. Id.
To invoke the doctrine of res ipsa loquitor, a plaintiff must present evidence of: “(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., 697 A.2d 89, 93 (Md. 1997). “When those conditions are met, ‘[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.'” Gillespie, 816 F.Supp.2d at 642 (quoting Peterson v. Underwood, 264 A.2d 851, 856 (Md. 1970)).
In this case, USA Rack does not meaningfully dispute that the incident here was not of a kind that does not ordinarily occur absent negligence. Nor does USA Rack meaningfully argue that this case presents questions too complex to allow an inference of negligence based on res ipsa loquitor. Rather, USA Rack asserts that Plaintiff cannot rely on res ipsa loquitor where expert testimony is necessary to establish the duty of care on a multi-employer worksite. (USA Rack's Reply, p. 11). But this argument misses the mark, as Plaintiff alleges that USA Rack owes him an ordinary duty of care under Maryland common law, not OSHA regulations. In any event, the questions presented in this case are not too complex for a jury to be able to infer negligence on the part of USA Rack. This is particularly so, where a rational factfinder could conclude that in the absence of any safety cones around the perimeter of its worksite, a steal beam crashed to the ground and injured Plaintiff while USA Rack was dismantling a rack. Therefore, the parties' material factual dispute centers around whether there are facts related to the other two requirements for res ipsa loquitor: (1) whether the rack that USA Rack employees were dismantling, and the area immediately surrounding that rack, was exclusively within USA Rack's control; and (2) whether Plaintiff's injuries were caused by an act or omission of the Plaintiff.
As an initial matter, USA Rack misstates the standard for assessing the element of exclusive control. To establish exclusive control when seeking to invoke res ipsa loquitor, a plaintiff need only establish that the evidence “afford[s] a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it.” Gillespie, 861 F.Supp.2d at 642 (alteration in original) (citation omitted). “[T]otal and complete control of the instrumentality of harm is not required.” Id. Maryland law does not require the plaintiff “‘to exclude remotely possible causes and reduce the question of control to a scientific certainty.'” Id. (quoting Tucker v. University Specialty Hosp., 887 A.2d 74, 83-84 (Md.Ct.App. 2005)). Nor does it require a plaintiff to “identify the precise act of negligence in order to establish exclusive control.” Id. (citing Norris v. Ross Stores, 859 A.2d 266, 273 (Md. 2004)).
USA Rack contends that the evidence shows that the actions of an employee from any of the three companies working at the warehouse could have caused the steel beam to fall and injure Plaintiff. (USA Rack's Reply, pp. 11-12). However, construing the evidence in the light most favorable to the Plaintiff, USA Rack's corporate designee testified that at the time of the incident, USA Rack employees were disassembling the racking system and had placed six to eight cones around the area where they were working. (Hernandez Dep.: 67:1-4, 78:9-13). Thus, the evidence, viewed in the light most favorable to Plaintiff, would permit a jury to infer that USA Rack had exclusive control over the section of the racking system they were disassembling, and the area immediately surrounding it, at the time of the incident. A jury might reasonably conclude that USA Rack has not rebutted this evidence. As for USA Rack's contention that the warehouse was ultimately under Brook Furniture's control, this argument too narrowly construes the concept of exclusive control as defined under Maryland law. See Norris v. Ross Stores, Inc., 859 A.2d 266, 273 (Md. Ct. Spec. App. 2004) (explaining that the exclusive control requirement of the res ipsa loquitor doctrine requires that the plaintiff demonstrate that the defendant had “exclusive control over the instrumentality at the time of the alleged negligent act”).
However, with respect to the third element of res ipsa loquitor, namely, that the incident was not caused by Plaintiff's own acts or omissions, as set forth more fully below, see infra pages 18-20, this Court finds that there is a genuine dispute of material fact as to whether Plaintiff assumed the risk of his injuries, that therefore, must be resolved by a jury at trial. Thus, USA Rack's motion for summary judgment on Plaintiff's negligence claim is denied.
d. Assumption of the risk
The doctrine of assumption of the risk “acts as a complete bar to a plaintiff's recovery for damages in a negligence action.” Al-Sabah v. World Business Lenders, LLC, Civ. No. SAG 182958, 2020 WL 3868989, at * 19 (D. Md. July 9, 2020). To invoke the doctrine under Maryland law, a defendant must demonstrate that the plaintiff: “‘(1) had knowledge of the risk of danger; (2) appreciated that risk; and (3) voluntarily confronted the risk of danger.” Id. (quoting ADMP'ship v. Martin, 702 A.2d 730, 734 (Md. 1997)). The Maryland courts apply a “hybrid objective-subjective standard to determine whether an injured plaintiff had the requisite knowledge and appreciation of the risk.” Meyers v. Lamer, 743 F.3d 908, 912 (4th Cir. 2014). This hybrid test is as follows:
The test of whether the plaintiff knows of, and appreciates, the risk involved in a particular situation is an objective one, and ordinarily is a question to be resolved by the jury. Thus, the doctrine of assumption of risk will not be applied unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff. On the other hand, when it is clear that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.Schroyer v. McNeal, 592 A.2d 1119, 1123 (Md. 1991) (citations omitted).
USA Rack contends that “the undisputed facts are that Plaintiff was aware of the dangers of not wearing a hardhat and working in close proximity to the where the racks were being disassembled.” (USA Rack's Motion, p. 22). Put another way, USA Rack asserts that the evidence establishes that an ordinary person of normal intelligence must have understood the dangers of working without a hardhat in an environment where debris and tools are falling nearby. (USA Rack's Reply, p. 13). The decisions of the Maryland Court of Appeals in Finkelstein and C&M Builders, LLC v. Strub, 22 A.3d 867 (Md. 2011), are instructive. In both cases, the Court of Appeals found the claimant to have assumed the risk of his injuries where the risk of harm was obvious. See Finkelstein, 168 A.2d at 394 (claimant assumed the risk of his injuries where he was aware of the hazard that caused him to trip and fall); C&M Builders, LLC, 22 A.3d at 883 (claimant assumed the risk of injury when working near an unguarded whole in the floor of a worksite because the danger was obvious).
Here, unlike Finkelstein and C&M Builders, it cannot be said as a matter of law that the risk of a steal beam falling on Plaintiff was open and obvious. The evidence surrounding the incident that caused Plaintiff's injuries is contradictory at best. Taking as true Plaintiff's testimony that on the day of the incident he was tasked with a different assignment in a different area of the warehouse than where the hammer fell, and that USA Rack did not place any safety cones around the rack it was disassembling, it is plausible that a jury could find that the risk of injury to the Plaintiff was not obvious. Although, USA Rack is correct that Plaintiff complained to his supervisor and co-workers on August 15, 2016 that working near the rack disassemblers without a hardhat was unsafe, taking the facts in the light most favorable to Plaintiff as the non-moving party, it cannot be said that Plaintiff assumed the risk of injury as a matter of law. Therefore, USA Rack's motion for summary judgment is denied.
4. Insufficient Evidence on Negligence - Brook Furniture
Brook Furniture contends that it too is entitled to summary judgment on Plaintiff's negligence claim because, without a liability expert, Plaintiff cannot establish the duty of care Brook Furniture owed him. (Brook Furniture's Motion, pp. 4-5). In the alternative, Brook Furniture alleges that none of its employees were involved in the incident. (Id., p. 7). Plaintiff counters that Brook Furniture, as the possessor of the warehouse, owed him, as an invitee, a duty of ordinary care to keep the premises safe and to protect him from injury. (Plaintiff's Opposition to Brook Furniture's Motion, pp. 9-15).
The standard of care owed by a possessor of land depends upon the status of the person on the land, specifically, whether the person is an invitee, a licensee, or a trespasser. Appiah v. Hall, 7 A.3d 536, 552 (Md. 2010). “An invitee is a person invited or permitted to enter or remain on another's property for purposes connected with or related to the owner's business.” Id. (citation omitted). A possessor of land owes a duty to an invitee for physical harm caused to the invitee if, he:
(a) knows, or by the exercise of reasonable care, would discover the unsafe condition, and should realize that it involves an unreasonable risk of harm to such invitees; and (b) should expect that the invitees will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect invitees against the danger.Id. at 553. Under Maryland law, a property owner will be liable to an invitee in negligence under a theory of premises liability if: “(1) the [owner] controlled the dangerous or defective condition; (2) the [owner] had knowledge or should have had knowledge of the injury causing condition; and (3) the harm suffered was a foreseeable result of that condition.” Hansberger v. Smith, 142 A.3d 679, 691 (Md. Ct. Spec. App. 2016). “A tenant to whom the landlord has leased premises acquires an estate in the land, and becomes for the time being, both owner and occupier, subject to all of the responsibilities of one in possession, to those who enter upon the land and those outside of its boundaries.” Ford v. Edmondson Village Shopping Ctr. Holdings, LLC, 254 A.3d 138, 146 (Md. Ct. Spec. App. 2021) (citations omitted). Therefore, a tenant holds the “position of owner and occupier of the leased premises” and owes a duty of care to those he invites onto the premises. Id.
Brook Furniture does not appear to dispute that: (1) Plaintiff was an invitee; (2) that Brook Furniture leased the warehouse; and (3) that the harm Plaintiff suffered was a foreseeable result of the dangerous conditions alleged by Plaintiff. (Brook Furniture's Motion pp. 4-5). Although not clearly articulated, Brook Furniture appears to argue that it was not aware of the dangerous conditions alleged by Plaintiff because its employees were not involved in the incident. (Id., p. 7).
Here, a jury could reasonably infer that Brook Furniture had knowledge or should have had knowledge of the conditions that resulted in Plaintiff's injury. The testimony of Brook Furniture's corporate designee establishes that Brook Furniture was aware that JK Moving and USA Rack employees would be in the warehouse at the same time, and that Brook Furniture communicated this to JK Moving. (Hart Dep.: 77:18-78:9). Brook Furniture's corporate designee further testified that when USA Rack was dismantling the racking system, the area of the warehouse where USA Rack employees were working would have “been off limits for everyone else.” (Hart Dep.: 73:774:4). Plaintiff testified that employees for USA Rack and JK Moving were working in close proximity two days before the accident, (Rebert Dep.: 69:1-72:18), and Brook Furniture's corporate designee testified that on the day of the incident it had an employee, Rob Prium, who was “in and out of the warehouse.” (Hart Dep.: 76:8-13). A reasonable jury could also infer that Brook Furniture learned that JK Moving and USA Rack employees were working in close proximity to one another in sufficient time for Brook Furniture to remedy this situation. See Macias v. Summit Mgmt., Inc., 220 A.3d 363, 376 (Md. Ct. Spec. App. 2019) (it is the plaintiff's burden to establish that “the defendant had actual or constructive knowledge of the dangerous condition and that the knowledge was gained in sufficient time to give the defendant an opportunity to remedy it”).
Moreover, the jury could find persuasive the contractual agreement between Brook Furniture and JK Moving, which required Brook Furniture to have a supervisor on site at the warehouse. (J.R. Exhibit 14, p. 554, Scope of Services Agreement; Hart Dep.: 51:11-15). And although it is not clear whether Rob Prium directed the movement of JK Moving while they were at the warehouse, Brook Furniture's corporate designee testified that if anyone would have directed JK Moving to work in a specific part of the warehouse, it would have been Mr. Prium. (Hart Dep.: 96:8-16). In sum, a reasonable jury could construe the facts in Plaintiff's favor on the aforementioned issues.
Finally, this Court does not find persuasive Brook Furniture's argument that Plaintiff cannot establish the duty of care it owed to him without a liability expert. Where, as here, a jury could reasonably conclude that Brook Furniture's failure to keep its contractors in separate areas of the warehouse was not that of a reasonably prudent land possessor, no expert testimony is required. See Adams v. NVR Homes, Inc., 135 F.Supp.2d 675, 716 (D. Md. 2001). As the occupier of the leased premises, the jury could find that Brook Furniture owed Plaintiff an ordinary duty of care to protect him from dangerous conditions on the property. Moreover, a jury could infer from the testimony of Brook Furniture's corporate designee that Brook Furniture understood it had such a duty. This Court also notes that Brook Furniture has not directed it to any legal authority that stands for the proposition that expert testimony is necessary for Plaintiff to establish the duty of care owed to him.
Accordingly, Brook Furniture's motion for summary judgment on Plaintiff's negligence claim is denied. For the reasons previously discussed, this Court does not find persuasive Brook
Brook Furniture joins in USA Rack's argument that Plaintiff's negligence claim should fail as a matter of law because the standard of care in this case could implicate various OSHA and MOSH regulations. (Brook Furniture's Motion, p. 5). However, as discussed above, the Court does not find this argument persuasive because Plaintiff is not relying on OSHA and MOSH regulations to establish the duty of care owed to him by USA Rack or Brook Furniture.
Furniture's affirmative defense that Plaintiff assumed the risk of his injuries. See, supra, pp. 1719.
IV. CONCLUSION
For the foregoing reasons, USA Rack's Motion for Summary Judgment is DENIED (ECF No. 49), and Brook Furniture's Motion for Summary Judgment is DENIED (ECF No 50).
This Court RESERVES ruling on the issues related to damages (past and future medical expenses) until necessary. Accordingly, Defendants' motions for summary judgment related to the issue of damages is DENIED as premature.
A separate Order will follow.