Garner v. SuperValu, Inc. , 396 F. App'x 27 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1555
EDITH GARNER,
Plaintiff - Appellant,
v.
SUPERVALU, INCORPORATED, d/b/a Shoppers Food and Pharmacy,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:08-cv-00895-DKC)
Submitted: August 31, 2010 Decided: September 17, 2010
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Kez U. Gabriel, LAW OFFICE OF OTI W. NWOSU, Arlington, Virginia,
for Appellant. Christopher R. Dunn, DECARO, DORAN, SICILIANO,
GALLAGHER & DEBLASIS, LLP, Bowie, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dr. Edith Garner appeals the district court’s grant of
summary judgment to Supervalu, Inc., d/b/a Shoppers Food &
Pharmacy (Supervalu) on her common law negligence claim. For
the following reasons, we affirm.
I.
On December 11, 2005, at 1:15 p.m., Dr. Edith Garner
and her cousin, Theresa Iloba, entered the Shoppers Food &
Pharmacy in Bowie, Maryland. As Dr. Garner entered the store
through the automatic doors, her left foot became caught on the
carpeted floor mat. Dr. Garner lost her balance and plunged
forward to the floor. Iloba, the store manager, and a good
Samaritan came to Dr. Garner’s aid and an ambulance was called.
Dr. Garner was transported to the hospital and returned to the
store the next day to file a written incident report. On
December 13, Dr. Garner provided a recorded statement to Linda
Reard of Risk Enterprise Management. Dr. Garner had extensive
medical bills as a result of her fall.
On March 27, 2008, Dr. Garner filed a complaint in the
Circuit Court for Prince George’s County against Supervalu,
alleging common law negligence. Supervalu removed the case to
the federal district court on the basis of diversity
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jurisdiction * and, following discovery, moved for summary
judgment. The district court granted Supervalu’s motion by
written opinion on April 17, 2009.
II.
On appeal, Dr. Garner contends that the district court
erred in granting summary judgment on her negligence claim.
Summary judgment is appropriate “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). We review the district court’s order granting
summary judgment de novo. Jennings v. University of North
Carolina, 482 F.3d 686, 694 (4th Cir. 2007) (en banc). In doing
so, we generally must view all facts and draw all reasonable
inferences in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007). Moreover, as a
federal court sitting in diversity, we have an obligation to
apply the jurisprudence of Maryland’s highest court, the
Maryland Court of Appeals. Wells v. Liddy, 186 F.3d 505, 527-28
(4th Cir. 1999).
*
Supervalu is a Delaware corporation and Dr. Garner is a
Maryland resident. The amount in controversy is more than
$75,000.
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Under Maryland law, to prove negligence Dr. Garner
must show that Supervalu was under a duty to protect her from
injury, that Supervalu breached that duty, that she suffered an
actual injury or loss, and that the injury was the proximate
result of Supervalu’s breach of its duty. Valentine v. On
Target, 727 A.2d 947, 949 (Md. 1999). In order to sustain a
negligence action, “[i]t is not sufficient to merely assert
conclusory allegations suggesting that the elements are in fact
present in the controversy.” Id.In “slip and fall” cases, the duty of care owed by an
owner or occupier of a premises is a function of his legal
relationship to the person entering on the premises. In this
case, the parties agree that Dr. Garner was a business invitee.
She was thus owed a duty of “reasonable and ordinary care to
keep [the] premises safe for the invitee and to protect the
invitee from injury caused by an unreasonable risk which the
invitee, by exercising ordinary care for his own safety, will
not discover.” Bramble v. Thompson, 287 A.2d 265, 267 (Md.
1972). See also Pahanish v. Western Trails, Inc., 517 A.2d
1122, 1128 (Md. 1986) (“landowner’s duty to business invitees is
to use reasonable and ordinary care to keep his premises in a
safe condition and to protect invitees against the dangers of
which the landowner is aware or which, with reasonable care, he
could have discovered”).
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To satisfy this duty, Dr. Garner must establish that a
dangerous condition existed and that Supervalu had “actual or
constructive knowledge of the dangerous condition and that the
knowledge was gained in sufficient time to have given
[Supervalu] the opportunity to remove it or to warn the
invitee.” Joseph v. Bozzuto Management Co., 918 A.2d 1230, 1235
(Md. Ct. Spec. App. 2007) (internal quotation marks omitted).
In the alternative, Dr. Garner may show that Supervalu created
the dangerous condition. Moulden v. Greenbelt Consumer
Services, Inc., 210 A.2d 724, 726 (Md. 1965). Under Maryland
law, “no presumption of negligence on the part of the proprietor
arises merely from a showing that an injury was sustained in his
store.” Rawls v. Hotchschild, Kohn & Co., 113 A.2d 405, 408
(Md. 1955). Thus, the “burden is upon the customer to show that
the proprietor created the dangerous condition or had actual or
constructive knowledge of its existence.” Lexington Market
Authority v. Zappala, 197 A.2d 147, 148 (Md. 1964).
In this case, we agree with the district court that
Dr. Garner cannot show that Supervalu should have known that the
mat was curled up in a dangerous fashion at the time of her fall
or that Supervalu created the danger by using an improperly
fastened and old carpeted mat. First, Dr. Garner failed to
produce any evidence that Supervalu was aware or should have
been aware that the mat was in a dangerous position. Dr. Garner
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testified during her deposition that, prior to her fall, she did
not see the mat. After she fell, she looked and saw that the
mat was curled up in the air. No other testimony established
that the mat was curled prior to her fall and neither her cousin
nor the good Samaritan saw the mat prior to Dr. Garner’s fall.
As Supervalu notes, given this dearth of testimony, it is just
as likely that the mat became curled after Dr. Garner fell as
opposed to causing her fall. And, because it is Dr. Garner’s
burden to show that the mat was curled up and that Supervalu
knew of the danger, summary judgment is appropriate. As the
Court of Special Appeals explained in a factually analogous
case, “[t]he only evidence appellant presented that was not
conjecture was that she fell on the carpet. Whether the carpet
was turned up prior to her fall and if so, the length of time it
was turned up, were matters of mere speculation.” Carter v.
Shoppers Food Warehouse Corp., 727 A.2d 958, 967 (Md. Ct. Spec.
App. 1999).
Second, Dr. Garner failed to provide any expert
testimony or other evidence of trade usage or custom that
Supervalu created a dangerous condition by using loose carpeted
floor mats. In Carter, the Court of Special Appeals affirmed
the trial court’s rejection of expert testimony that the carpet
was turned up prior to the plaintiff’s fall because the floor
mat’s thickness was substandard and caused a tripping hazard.
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Carter, 727 A.2d at 963-64. The court noted that the expert was
unable to point to any industry standard and performed no
testing on the carpet in question. Id. Likewise, as the
district court summarized, Dr. Garner “has not presented any
expert testimony or other evidence that Defendant’s use of this
particular mat created a dangerous condition. [Dr. Garner] has
also failed to direct the court’s attention to any law,
regulation, or safety standard which [Supervalu] violated by
using the mat.” Dr. Garner’s position is essentially that,
because she fell on the mat, it follows that the mat was
dangerous. Without any supporting evidence, however, that
conclusion is merely speculation.
Accordingly, we affirm the district court’s grant of
summary judgment to Supervalu. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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