Coleman v. United States , 369 F. App'x 459 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1039
CHARLES WILLIAM COLEMAN,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA; SHADE TREE LAWN CARE,
INCORPORATED,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Susan K. Gauvey, Magistrate Judge.
(1:07-cv-01711-SKG)
Argued: January 28, 2010 Decided: March 10, 2010
Before MICHAEL and DUNCAN, Circuit Judges, and R. Bryan HARWELL,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished opinion. Judge Harwell wrote the
opinion, in which Judge Michael and Judge Duncan joined.
ARGUED: Mark Robert Millstein, Baltimore, Maryland, for
Appellant. Alex Gordon, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland; G. Randall Whittenberger, MILES &
STOCKBRIDGE, Frederick, Maryland, for Appellees. ON BRIEF:
David M. Silbiger, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee United States of America.
Unpublished opinions are not binding precedent in this circuit.
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HARWELL, District Judge:
This appeal concerns a negligence case brought under the
Federal Tort Claims Act (“FTCA”) against Defendants United
States of America (“USA”) and Shade Tree Lawn Care, Inc. (“Shade
Tree”) for injuries Charles William Coleman (“Coleman”) suffered
in a slip-and-fall on postal property. Coleman filed this case
in the United States District Court for the District of Maryland
on June 28, 2007. On December 2, 2008, United States Magistrate
Judge Susan K. Gauvey granted summary judgment in favor of the
defendants. For the following reasons, we affirm.
I.
On May 17, 2006, Coleman drove to the Damascus Post Office
(“Post Office”) as he had done on a weekly basis for several
years. It was a clear day around mid-morning. Coleman exited
his vehicle and noticed a Shade Tree employee mulching by the
sidewalk; but otherwise, the path before him appeared clear. He
entered the Post Office, conducted his business, exited the Post
Office, and proceeded down the sidewalk. According to his
deposition, he was not looking down at the sidewalk as he
walked, but rather was looking ahead towards his vehicle while
scanning the area approximately every six to eight seconds to
make sure that his path was free of obstacles.
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Coleman eventually reached an area on the sidewalk where
the Shade Tree employee was mulching and stepped down with his
left foot on something foreign to the sidewalk. The foreign
object was hard, “bigger than a pea,” and caused Coleman to lose
his balance. After stumbling on the sidewalk, he tried to
regain his balance and placed his right foot into the parking
lot at a location where the sidewalk becomes a concrete access
ramp, connecting the parking lot to the sidewalk. Debris had
accumulated in the parking lot at the bottom of the access ramp,
and when Coleman stepped down with his right foot, the debris
allegedly prevented him from regaining his balance and he fell.
X-rays revealed that Coleman suffered a broken right wrist as a
result of the fall.
The debris at issue consisted of remnants of a gravel-
sandstone-pebble mixture, which was spread throughout the
parking lot approximately eight weeks prior to Coleman’s fall to
help cars with traction due to heavy snow and ice conditions.
Coleman had seen the debris on his prior regular weekly visits
to the Post Office, but he had not noticed the debris when
entering or exiting the Post Office on the day of his fall.
II.
We review a district court’s grant of a motion for summary
judgment de novo, applying the same legal standards as the
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district court. Nader v. Blair, 549 F.3d 953, 958 (4th Cir.
2008). Summary judgment "should be rendered if the pleadings,
the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c)(2). Thus, summary
judgment is appropriate when it is clear that no genuine issue
of material fact remains unresolved and an inquiry into the
facts is unnecessary to clarify the application of the law.
Haavistola v. Cmty. Fire Co. of Rising Sun, 6 F.3d 211, 214 (4th
Cir. 1993).
The facts and inferences to be drawn from the evidence must
be viewed in the light most favorable to the non-moving party.
See Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991).
However, "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).
The movant "bears the initial burden of pointing to the
absence of a genuine issue of material fact." Temkin v.
Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If
the movant carries this burden, "[t]he burden then shifts to the
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non-moving party to come forward with facts sufficient to create
a triable issue of fact." Id. at 718-19. Moreover, "the
nonmoving party must come forward with some evidence beyond the
mere allegations contained in the pleadings to show that there
is a genuine issue for trial." Baber v. Hosp. Corp. of Am., 977
F.2d 872, 875 (4th Cir. 1992). The nonmoving party may not rely
on beliefs, conjecture, speculation, or conclusory allegations
to defeat a motion for summary judgment. See id. When the
nonmoving party fails to establish the existence of an element
essential to that party’s case, “there can be ‘no genuine issue
as to any material fact,’ since a complete failure of proof
concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Celotex Corp.,
477 U.S. at 323.
III.
The Court first addresses whether Defendant USA was
negligent pursuant to Coleman’s claim brought under the FTCA.
The FTCA is a procedural statute that requires that the Court
look to the place of the act or omission to determine the
applicable substantive law. Richards v. United States, 369 U.S.
1, 11-14 (1962). Specifically, 28 U.S.C. § 1346(b)(1) (2006)
provides:
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[T]he district courts . . . shall have exclusive
jurisdiction of civil actions [for] personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government . . . under
circumstances where the United States, if a private
person, would be liable to the claimant in accordance
with the law of the place where the act or omission
occurred.
Since the incident in question occurred in Maryland, then
Maryland substantive law applies. Thus, we are required to
follow Maryland law.
To establish a prima facie case for negligence under
Maryland law, Coleman must prove: (1) the defendant owed a duty
to protect Coleman from injury; (2) the defendant breached that
duty; (3) causation; and (4) damages. See Rosenblatt v. Exxon
Co., U.S.A., 642 A.2d 180, 188 (Md. 1994). More specifically,
to prove liability by the USA as a landowner in a premises
liability/slip-and-fall case, Coleman must provide evidence
establishing: (1) a dangerous condition existed; (2) USA had
actual or constructive knowledge of it; and (3) such knowledge
was gained in sufficient time to give USA the opportunity to
remove it or to warn Coleman. See Maans v. Giant of Maryland,
LLC, 871 A.2d 627, 632 (Md. Ct. Spec. App. 2005).
Under Maryland law, a landowner has the duty to protect
pedestrians “not from the customary, permissible uses and
conditions, but dangers of a kind that would not be expected by
foot travelers, dangers in the nature of traps.” Leatherwood
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Motor Coach Tours Corp. v. Nathan, 579 A.2d 797, 803 (Md. Ct.
Spec. App. 1990) (internal quotation marks omitted). As such,
an “unevenness of the ground surface” containing gravel “pose[s]
no ‘unreasonable risk’ to” a pedestrian because “pedestrians are
bound to protect themselves from ordinary uses, obstructions,
and comparative roughness of the ground.” Id. In Leatherwood,
the court held that the plaintiff failed to prove that a
dangerous condition existed where, “[a]s a result of normal
erosion, the dirt shoulder adjacent to the paved highway became
uneven and gravel was added”; the court found that gravel and
rocks are to be expected by foot travelers in such a location
and, therefore, do not create a dangerous condition. Id.(finding that the existence of gravel was “slight and trivial”). 1
Moreover, it is well established under Maryland Law that an
invitee who is harmed by an open and obvious condition is
ordinarily not entitled to any recovery for his injuries. See,
e.g., Casper v. Charles F. Smith & Son, Inc., 560 A.2d 1130,
1134-37 (Md. 1989). This is because an invitor is not an
insurer of the invitee’s safety. Tennant v. Shoppers Food
Warehouse, 693 A.2d 370, 374 (Md. Ct. Spec. App. 1997)
(citations omitted). Like the invitor, “the invitee has a duty
1
Cf. Landers v. Aldi, Inc., 153 F.3d 698, 699 (8th Cir.
1998) (“[L]oose stones in a parking lot pose only a minimal
danger to the general public . . . .”).
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to exercise due care for his or her own safety. This includes
the duty to look and see what is around the invitee.
Accordingly, the owner or occupier of land ordinarily has no
duty to warn an invitee of an open, obvious, and present
danger.” Id. (citing Casper, 560 A.2d at 1130).
“An ‘open and obvious condition’ is where the condition and
risk are apparent to and would be recognized by a reasonable
person in the position of a visitor, exercising ordinary
perception, intelligence, and judgment.” 65A C.J.S. Negligence
§ 639 (West 2009). Under Maryland law, because a mixture of
rock salt and gravel “is often used as a precautionary measure
to assist pedestrians” and can easily be seen by pedestrians,
its use will not necessarily constitute negligence. Kaplan v.
Baltimore & Ohio R.R. Co., 113 A.2d 415, 418 (Md. 1955) (“[O]n
that morning the temperature was above freezing, and there was
no rock salt or gravel on the steps, and in fact no need for it
on that day. But even assuming, as we must, that there was some
rock salt or gravel on the steps, plaintiff could easily have
seen it.”).
A.
Coleman asserts that the accumulated debris in the parking
lot where the sidewalk becomes a concrete access ramp created a
dangerous condition. In the instant matter, the alleged
dangerous condition is debris consisting of remnants of a
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gravel-sandstone-pebble mixture, which was spread throughout the
Post Office parking lot. Such a mixture is often used as a
precautionary measure to assist motorists and pedestrians, and
gravel-type debris is innate to parking lots. Under
Leatherwood, it is questionable whether the debris at issue here
could even be considered a dangerous condition.
B.
Even assuming, arguendo, that this debris did constitute a
dangerous condition, it was nonetheless an open and obvious
condition. The determination of whether a condition is open and
obvious so that an invitee is charged with knowledge of its
existence and consents to any risk is made by the court on a
case-by-case basis. See Gellerman v. Shawan Rd. Hotel Ltd.
P’ship, 5 F. Supp. 2d 351, 353 (D. Md. 1998) (applying Maryland
law). Notably, the circumstances in the instant matter closely
mirror those in Gellerman. There, the plaintiff “tripped in
close proximity to an uneven curb/sidewalk joint and fell to the
ground while walking through the parking lot of a hotel.” Id. at
352. The court granted summary judgment, holding that the
condition of the sidewalk was open and obvious because the
layout “provided wholly unobstructed views in all directions
from plaintiffs’ vantage point.” Id. at 354. The court further
noted that the circumstances of the accident demonstrated that
the plaintiff- as with Coleman in the instant matter- had no
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reason not to discover the open and obvious condition. As a
result, the court held that the plaintiff could not recover for
her damages under Maryland law.
In the instant matter, there was nothing to impede
Coleman’s ability to notice the remnants of the gravel-
sandstone-pebble mixture on the day of the slip-and-fall. He
was in good health and described the day as “very nice . . .
[s]unny, clear, cool, comfortable.” It cannot be overstated
that Coleman was also very familiar with the Post Office, as he
had visited it at least once or twice a week for the past eight
years. Significantly, he admitted in his deposition that, on
prior visits to the Post Office, he had noticed the debris on
which he slipped and fell. The fact that Coleman had noticed
the debris on his regular weekly previous visits to the Post
Office is evidence that the debris was an “open and obvious
condition” and that he knew of the risks, if any, posed by the
debris. See Leatherwood, 579 A.2d at 803 (“[W]hatever risk the
uneven ground surface of the shoulder posed to pedestrians or
prospective bus riders was well known to appellee. She had
walked on it many times . . . .”). 2 As such, the open and
2
Accord Landers, 153 F.3d at 700 (“Because Landers
acknowledges that she had seen the stones around the parking lot
on previous visits to the strip mall . . . she admits that the
stones posed an open and obvious danger, and that she herself
knew of the risk.”).
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obvious nature of the risk, if any, posed by the debris negated
USA’s duty to warn or protect Coleman against it.
IV.
The Court next addresses whether Shade Tree was negligent.
Shade Tree, as an independent contractor, is held to the same
standard of ordinary care that USA is held to as a possessor of
land. See Restatement (Second) of Torts § 383 (1965) (“One who
does an act or carries on an activity upon land on behalf of the
possessor is subject to the same liability . . . for physical
harm caused thereby to others upon and outside of the land as
though he were the possessor of the land.”).
A.
As mentioned above, Coleman claims that USA failed to clean
up the gravel-sandstone-pebble mixture, and remnants of this
debris had accumulated throughout the parking lot creating a
dangerous condition. According to Coleman, it was this
dangerous condition that caused his fall. The contract between
Shade Tree and the Post Office provided that Shade Tree was
responsible for “[g]eneral yard clean up,” which consisted of
the grounds between the curb and the building. However, Shade
Tree did not contract and had no responsibility to maintain the
Post Office parking lot area where Coleman fell, and counsel for
Coleman conceded as much at oral argument. In addition, the
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general principles of Maryland law articulated above with regard
to USA’s liability apply to Coleman’s negligence claim against
Shade Tree as well. As such, Shade Tree owed no duty to Coleman
concerning the debris in the parking lot, which purportedly
caused Coleman’s fall, and is entitled to summary judgment as a
matter of law.
V.
While the Court is sympathetic to Coleman’s situation,
Maryland law creates a high burden in premises liability/slip-
and-fall cases. Applying Maryland law to the undisputed facts
in this case, the district court’s granting of summary judgment
was correct as to each defendant. For the reasons provided
herein, the judgment of the district court is affirmed.
AFFIRMED
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