Is Employer Liable for Employee’s Negligence

Baltimore Accident Attorney - Holding Employers Responsible

One way to hold employers responsible for the negligent acts of an employee is through the doctrine of respondeat superior. The doctrine allows an employer to be held vicariously liable for the bad acts of its employee when that employee was engaged in conduct that can be classified as promoting the employer's goals.  Sawyer v. Humphries, 587 A.2d 467, 470 (Md. 1991). The doctrine is applied below where the employer is the Federal Government.   IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : DEBORAH PROUT : v. : Civil Action No. DKC 2004-1318 : MINDY HORNIAK, et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this negligence action brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), et seq., are (1) a motion by Defendant United States of America (“the government”) to dismiss, or, in the alternative, for summary judgment and (2) a motion by Plaintiff Deborah Prout to stay the proceedings. The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the government’s motion will be granted and Plaintiff’s motion will be denied. I. Background This case arises out of an automobile accident occurring on Andrews Air Force Base in Prince George’s County, Maryland. Plaintiff alleges that on or about May 1, 2002, she was crossing a street on foot when she was struck by a privately owned 1 Plaintiff maintains that she has been unable to obtain service upon Hopkins because she is currently on active duty and stationed outside of the country. See Paper 11 at 4. 2 vehicle driven by Mindy Horniak, now Mindy Hopkins (“Hopkins”), an active-duty member of the United States Air Force. On April 26, 2004, Plaintiff brought a negligence suit in this court against both Hopkins and the United States of America, alleging that the government was vicariously liable under the FTCA for the negligence of Hopkins under the theory of respondeat superior. Although the government was timely served with process, as of the date of this Memorandum Opinion, Hopkins has yet to be served.1 On July 23, 2004, the government filed a motion to dismiss, or, in the alternative, for summary judgment, arguing that Hopkins was acting outside the scope of her employment at the time of the accident, and, accordingly, that the court lacks subject matter jurisdiction to entertain Plaintiff’s suit. Plaintiff opposes dismissal on the grounds that “a significant question remains” as to whether or not Hopkins was acting within the scope of her employment at the time of the accident. See Paper 11 at 4. On September 29, 2004, Plaintiff filed a motion to stay the proceedings until Hopkins can be served with process and discovery can be taken with respect to her activities on the day of the accident. The government opposes a stay. For the reasons that follow, 3 Plaintiff’s motion to stay will be denied and the government’s motion to dismiss for lack of subject matter jurisdiction will be granted. II. Standard of Review Motions to dismiss for lack of subject matter jurisdiction are governed by Fed. R. Civ. P. 12(b)(1). The plaintiff bears the burden of proving that subject matter jurisdiction properly exists in the federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999). In a 12(b)(1) motion, the court “may consider evidence outside the pleadings” to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg & Potomac R.R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647. The court should grant the 12(b)(1) motion “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, 945 F.2d at 768. “There are two critically different ways in which to present a motion to dismiss for lack of subject matter jurisdiction.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). First, a defendant may claim that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based. In that case, all the facts alleged in the complaint are assumed to be true and 4 the plaintiff is essentially given the same procedural protection as he would have under a Rule 12(b)(6) motion for failure to state a claim on which relief may be granted. Second, a defendant may claim that the jurisdictional allegations of the complaint are sufficient, but are not true. In that event, the court may go beyond the allegations of the complaint and consider evidence by affidavit, depositions, or live testimony without converting the proceeding to one for summary judgment. The court must then weigh all the evidence to determine if there is jurisdiction. Schalk v. Associated Anesthesiology Practice, 316 F.Supp.2d 244, 247 (D.Md. 2004) (internal citations omitted). As mentioned above, the burden of proving subject matter jurisdiction on a motion to dismiss is on the party asserting jurisdiction. Evans, 166 F.3d at 647; Adams, 697 F.2d at 1219. III. Analysis A. The Government’s Motion to Dismiss The government contends that Hopkins was acting outside the scope of her employment at the time of the accident, and, thus, it has no FTCA liability under applicable Maryland law. The FTCA is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope 2 The FTCA provides, in pertinent part, that the United States can be subject to claims: for money damages, . . . , for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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. 28 U.S.C. § 1346(b)(1). 5 of their employment.2 See United States v. Orleans, 425 U.S. 807, 813 (1976). However, the FTCA does not create new causes of action. See Florida Auto Auction of Orlando, Inc. v. United States, 74 F.3d 498, 502 (4th Cir. 1996). “Instead, the [FTCA] ‘only serves to convey jurisdiction when the alleged breach of duty is tortious under state law.’” Id. (emphasis in original) (quoting Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 969 (4th Cir. 1992)). Moreover, “Congress has expressly stated that the Government’s liability is to be determined by the application of . . . the law of the place where the act or omission occurred.” Richards v. United States, 369 U.S. 1, 9 (1962); see also Cooner v. United States, 276 F.2d 220, 223 (4th Cir. 1960) (The FTCA “requires the federal courts . . . to apply the law of agency of the place of the accident to determine whether a Government employee is acting in the scope of his 6 employment.”). Accordingly, because the accident occurred in Maryland, the court must look to the substantive law of Maryland in order to determine if the government is liable to Plaintiff for Hopkins’ alleged negligence under the theory of respondeat superior. See Buckingham v. United States, 124 F.Supp.2d 943, 944 (D.Md. 2000) (stating that in an automobile accident occurring in Maryland and involving an employee of the United States Postal Service, “the Government is only liable to the extent that Maryland law would impose liability under the theory of respondeat superior”). Under Maryland law, the doctrine of respondeat superior allows an employer to be held vicariously liable for the tortious conduct of its employee when that employee was acting within the scope of the employment relationship. See Oaks v. Connors, 660 A.2d 423, 426 (Md. 1995); see also, e.g., Dhanraj v. Potomac Elec. Power Co., 506 A.2d 224 (Md. 1986); Embrey v. Holley, 442 A.2d 966 (Md. 1982). “The general test set forth in numerous Maryland cases for determining if an employee’s tortious acts were within the scope of his employment is whether they were in furtherance of the employer’s business and were ‘authorized’ by the employer.” Sawyer v. Humphries, 587 A.2d 467, 470 (Md. 1991). 7 However, the Court of Appeals has recognized that the general rule for determining scope of employment issues “has been to some extent narrowed with respect to automobiles.” Dhanraj, 506 A.2d at 226. In Dhanraj, the court stated: [O]n account of the extensive use of the motor vehicle with its accompanying dangers, the courts have realized that a strict application of the doctrine of respondeat superior in the modern commercial world would result in great injustice. It is now held by the great weight of authority that a master will not be held responsible for negligent operation of a servant’s automobile, even though engaged at the time in furthering the master’s business unless the master expressly or impliedly consents to the use of the automobile, and . . . had the right to control the servant in its operation, or else the use of the automobile was of such vital importance in furthering the master’s business that his control over it might reasonably be inferred. Id. (internal quotations and citations omitted) (quoting Henkelmann v. Metro. Life Ins. Co., 26 A.2d 418 (Md. 1942)); see also Oaks, 660 A.2d at 426. Thus, “[t]he doctrine may only be successfully invoked when an employer has either ‘expressly or impliedly, authorized the [servant] to use his personal vehicle in the execution of his duties, and the employee is in fact engaged in such endeavors at the time of the accident.’” Oaks, 660 A.2d at 427 (quoting Dhanraj, 506 A.2d at 226). Moreover, “[d]riving to and from work is generally not considered to be 8 within the scope of a servant’s employment because getting to work is the employee’s own responsibility and ordinarily does not involve advancing the employer’s interests.” Id. Accordingly, “absent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work.” Dhanraj, 506 A.2d at 226. The government argues that the undisputed facts demonstrate that Hopkins was not performing any of her designated job responsibilities at the time of the accident. At that time, Hopkins was assigned to the Customer Service, Special Actions section of the 89th Comptroller Squadron, located at Andrews Air Force Base. Her supervisor, Noncommissioned Officer In Charge Calvin L. Mickens, attests that Hopkins’ job responsibilities as a Financial Services, Customer Service technician included conducting separation and retirement briefings, computing and processing final military payment, and answering general military and travel pay inquiries. See Paper 10, Ex. 1 (“Mickens Aff.”) ¶ 3. None of Hopkins’ job responsibilities would require the use an automobile, and it is clear that she was performing none of these tasks at the time of the accident. Moreover, Hopkins’ normal workday hours at Andrews were 7:30 a.m. to 4:30 p.m. Mickens Aff. ¶ 3. Thus, according to 9 Plaintiff’s own allegations, the accident occurred before Hopkins was even scheduled to begin work. See Paper 1 (“Complaint”) ¶ 4 (alleging that the accident occurred at approximately 7:19 a.m.). Finally, it is undisputed that Hopkins was driving her privately owned vehicle at the time the accident occurred. See Complaint ¶ 2; Mickens Aff. ¶ 3. Based on the undisputed facts, Plaintiff has not and cannot support her allegation that Hopkins was acting within the scope of her employment as a Financial and Customer Service technician at the time the accident occurred. See Oaks, 660 A.2d at 427 (holding that the employee was not acting within the scope of his employment where he was merely “driving to work,” “he was not actually performing any of his designated job responsibilities at the time of the accident,” and “the accident occurred before the time that [the employee] was scheduled to start work”). In light of the government’s supporting affidavit, it is clear that it neither “expressly or impliedly consent[ed] to the use of the automobile,” nor “had the right to control [Hopkins] in its operation.” Dhanraj, 506 A.2d at 226. Moreover, nothing about the nature of Hopkins’ job responsibilities suggests that “the use of the automobile was of such vital importance in furthering the [government’s] business that [its] control over it might reasonably be inferred.” Id. 3 Plaintiff’s sole basis for opposing the government’s motion is her assertion that Hopkins told her she was “on duty” when she exited her vehicle after the accident. See Paper 11, Ex. 1 (“Prout Aff.”) ¶ 4. However, she provides no authority from any federal or state court, statute, or regulation that this fact, even if true, alters the court’s conclusion. In fact, decisions by courts in this and other circuits suggest otherwise. See White v. Hardy, 678 F.2d 485, 487 (4th Cir. 1982) (holding Army Sergeant was not acting within the scope of his employment under North Carolina law when he collided with the plaintiff notwithstanding the fact that he was on “24-hour active duty” and was driving an Army vehicle); Buckingham, 124 F.Supp.2d at 944 (finding U.S. Postal Service employee was not acting within the scope of her employment under Maryland law when she collided with the plaintiff notwithstanding the fact that she “was still within the time frame of authorized overtime for her task of delivering the mail,” but was on her way home); Paly v. United States, 125 F.Supp. 798, 805–06 (D.Md. 1954) (finding U.S. Navy serviceman was not acting within the scope of his employment under Maryland law when, en route to a funeral for a deceased serviceman, he collided with the plaintiff notwithstanding the fact that he had been ordered to attend the funeral as the official naval escort); see also Hallett v. United States, 877 F.Supp. 1423, 1428 (D.Nev. 1995) (“A military servicemember may be on active duty, not on leave, and still not acting within the scope of employment.”). Accordingly, Hopkins’ “status” at the time of the accident is irrelevant to the question of whether she was acting within the scope of her employment under Maryland law. 10 All the evidence before the court convincingly demonstrates that Hopkins was not acting within the scope of her employment at the time of the accident, but rather was on her way to work in her privately owned vehicle when she unfortunately, and, perhaps negligently, struck Plaintiff as she was crossing the street.3 Although Plaintiff may have a cause of action against Hopkins, under Maryland law, which the court must apply, she does not 11 have a cause of action under these circumstances against her employer, the United States government. See Oaks, 660 A.2d at 427 (“[A]bsent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work.”) (quoting Dhanraj, 506 A.2d at 226); see also, e.g., Henkelmann, 26 A.2d at 424; Sheets v. Chepko, 573 A.2d 413, 414 (Md.Ct.Spec.App. 1990); Henderson v. AT&T Inc., 552 A.2d 935, 938 (Md.Ct.Spec.App. 1989); Restatement (Second) of Agency § 229 cmt. d (1958). Thus, Plaintiff has failed to meet her burden of proving that this court has subject matter jurisdiction under the FTCA, and the government’s motion to dismiss must be granted. See White, 678 F.2d at 487. B. Plaintiff’s Motion to Stay In light of the evidence put forth by the government, the court finds no reason to grant Plaintiff’s motion for an indefinite stay, thereby deferring its resolution of the government’s motion to dismiss, until such time that Hopkins can be served. The undisputed facts put forth by the government convincingly demonstrate that Hopkins was not acting within the scope of her employment as a U.S. Navy Financial and Customer Service technician when the accident occurred. Although it is Plaintiff’s burden to prove subject matter jurisdiction properly 12 exists, she has put forth nothing to refute the government’s evidence, but merely argues “there is one person who can answer the question . . . and that is [Hopkins] herself.” Paper 13 at 4. As the foregoing analysis makes clear, however, this statement is simply not accurate. Accordingly, Plaintiff’s motion to stay will be denied as futile. Cf. Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1155 (4th Cir. 1997) (“Only if the district court concludes that there is a genuine question of fact material to the scope-of-employment issue should the federal employee be burdened with discovery and an evidentiary hearing.”). As noted earlier, Hopkins has not been served and well more than the normal 120 days for service have passed. Moreover, the only basis of federal jurisdiction alleged in the complaint is federal question jurisdiction based on the FTCA. The complaint also refers to 28 U.S.C. § 1367, Supplemental Jurisdiction, presumably as the basis for jurisdiction over the state law negligence claim against Hopkins. Pursuant to 28 U.S.C. § 1367 (c)(3), a district court may decline to exercise supplemental jurisdiction over a claim when the court has dismissed all claims over which it has original jurisdiction. See Hall v. Prince George’s County, 189 F.Supp.2d 320, 324 (D.Md. 2002). Such action is appropriate here. The state law negligence claim 13 does not involve any issue of federal policy and no substantive proceedings have occurred here. Thus, there is no reason for this court to retain jurisdiction. IV. Conclusion For the foregoing reasons, Plaintiff’s motion to stay is denied and Defendant’s motion to dismiss for lack of subject matter jurisdiction is granted. Furthermore, the court declines to exercise supplemental jurisdiction over Plaintiff’s state law claim against Hopkins and it will be dismissed without prejudice. A separate Order will follow. /s/ DEBORAH K. CHASANOW United States District Judge March 4, 2005

Slip and Fall Attorney

Maryland Slip and Fall Attorney

1. Existence of a dangerous condition and  2. Condition was caused by Defendant or Defendant had knowledge of it or 3. Defendant knew or should have known of the dangerous condition (for example, would a business owner exercising reasonable care have discovered the wet floor).   Case applying these principles. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND KIMBERLY MYERS, ** Plaintiff, * Civil No. JFM 07-333 * v. * * TGI FRIDAY’S, INC., et al. ** Defendant. * ***** OPINION Plaintiff Kimberly Myers has brought suit1 against defendants TGI Friday’s, Inc. (“Friday’s”) and Carlson Restaurants Worldwide, Inc. (“Carlson”) jointly and severally as a result of an alleged slip and fall incident at Friday’s.2 (Compl. ¶¶ 1-4.) Myers alleges that Friday’s was negligent in failing to adequately inspect and maintain the premises, and failing to warn her of and protect her from foreseeable dangers. (Id. ¶ 5.) As a result of the fall, Myers sustained injuries for which she seeks $250,000 in damages against defendant. (Id. ¶¶ 6, 12.) Defendant has moved for summary judgment, and plaintiff’s opposition and defendant’s reply have followed. For the reasons detailed below, I grant defendant’s motion for summary judgment. -2- I. The evidence on the summary judgment record is as follows. At approximately 9:00 p.m. on June 3, 2004, plaintiff met friends at Friday’s restaurant in White Marsh, Maryland. (Myers Dep. at 20-21.) Seated at the bar from about 9:00 p.m. until midnight, plaintiff had a “large dinner” and “almost . . . three[,] . . . probably . . . about two and a half” alcoholic rum drinks. (Id. at 24-27.) At approximately 12:30 a.m., plaintiff walked from the bar area to the restrooms. (Pl.’s Answers to Interrogatories, No. 1.) To arrive at the restrooms, plaintiff had to walk to the end of the bar, “where the kitchen entrance comes out,” and pass over a “common floor” in front of the kitchen. (Myers Dep. at 28.) Wearing “heeled shoes,” (Pl.’s Opp. to Def.’s Mot. for Summ. J. at 1), plaintiff “was caused to fall to the ground and sustain serious, painful and permanent injuries primarily to her right elbow and right upper thigh as a result of her foot coming into contact with [what plaintiff claims was] a wet, slippery and/or greasy substance located on the floor near the restroom and kitchen areas of [Friday’s].” (Pl.’s Answers to Interrogatories, No. 1.) Specifically, plaintiff’s right foot slipped out from under her, and she fell on her right hip while trying to break her fall with her right arm. (Myers Dep. at 30.) Plaintiff did not see what caused her to fall or see any substance on the floor before or after she fell, but she stated that “[t]he floor felt slippery.” (Id. at 31.) Plaintiff did not see any Friday’s employee or any patron cause the floor to be slippery in the area in which plaintiff slipped. (Id. at 32.) Following her fall, plaintiff stood up and went into the restroom for a few minutes, where she was crying due to pain in her right arm and right hip. (Id. at 30-31.) After leaving the restroom and returning to her seat, plaintiff spoke with a Friday’s employee, who asked plaintiff if she was “okay.” (Id. at 35.) Plaintiff states that she did not speak with any 3 Plaintiff’s friend, Jessica Smith, who was at Friday’s with plaintiff the night of the fall, testified that on a subsequent visit to Friday’s about six months later, she and friends - not including plaintiff - commented that in the area where plaintiff had fallen “the floors are kind of slick.” (Smith Dep. at 19.) 4 This is “the area between the servers and the cooks, where the cooks put the food in the hot or cold window, and the person on expo expedites it, pulls it out, puts it on the counter, and it goes out to the table.” (Savage Dep. at 14.) -3- other Friday’s employees or any other managers during the time she was at the restaurant, nor did any Friday’s employees or managers make any statements to plaintiff regarding her fall, offer her treatment, or indicate that they were concerned about her fall or whether she had been injured. (Id. at 36.) After speaking with the Friday’s employee, plaintiff spoke for a few minutes with her friends, who had not seen her fall. (Id. at 32-33.) Plaintiff told them that she “had slipped on the wet floor.”3 (Jessica Smith Dep. at 13.) Still in pain, plaintiff left the bar and traveled about two miles to meet with two friends who were paramedics to see if they thought her elbow “looked dislocated.” (Myers Dep. at 33-34.) They recommended that plaintiff go to the hospital. (Id. at 34.) Within ten minutes, plaintiff went to Franklin Square Hospital with a “really sharp pain in my right arm” and swelling above her elbow. (Id. at 41-42.) After taking x-rays, the hospital told plaintiff that “it was possibly a hairline fracture” and plaintiff had surgery on the evening of June 4, 2004. (Id. at 43-45.) Plaintiff had another surgery in August 2004 and underwent physical therapy. (Id. at 47.) The two Friday’s managers who were on duty on June 3-4, 2004 - Latisha Brown and Bruce Savage - testified as follows. On the night of plaintiff’s fall, a server informed Savage, who was in the “expo area”4 outside the kitchen, that plaintiff had fallen. (Savage Dep. at 13- 14.) Savage did not see or hear plaintiff’s fall. (Id. at 14-15.) Once plaintiff returned to her seat -4- from the restroom after the fall, Savage claims he asked plaintiff a few times whether she was okay and whether she needed medical help. (Id. at 15.) Plaintiff said she was fine and declined medical help. (Id. 15-16.) After hearing about plaintiff’s fall from Savage, Brown (who also did not see the fall) claims she also approached plaintiff after plaintiff had returned from the bathroom to her bar seat. (Brown Dep. at 22-23, 28.) Brown identified herself as the manager on duty, asked about the incident, and “asked plaintiff if she was okay, if she wanted to fill out a report based on the incident.” (Id. at 28.) Plaintiff declined to fill out a report and said she was okay. (Id. at 28-29.) Plaintiff did not say anything to Brown about what caused her fall. (Id. at 31-32.) Brown and Savage then “walked to [the area where plaintiff had fallen to] see if anything was wet on the floor, and then looked at the surrounding area to see if anybody had tracked anything from another spill to that area.” (Savage Dep. at 16.) Brown testified that she inspected the area by bending down and using her hand to check the tile to “[c]heck[] to see if there was something that wasn’t visible to the eye.” (Brown Dep. at 27.) Brown “did not see anything out of the ordinary.” (Id. at 26-27.) Savage also testified that he did not see anything. (Savage Dep. at 17.) Contradicting Brown, however, Savage testified that neither of them got down close to the ground to inspect it with their hands but instead “[j]ust visually look[ed] down, bending down, looking, but not close to checking with our hands.” (Id.) Brown and Savage filed an incident report the day after plaintiff’s fall. (Id. at 38; Brown Dep. at 38.) Brown and Savage described the flooring where plaintiff fell as “a hard type tile,” (Savage Dep. at 18; Brown Dep. at 20), and the area where plaintiff fell as “[w]ell lit.” (Brown Dep. at 26; Savage Dep. at 17-18 (describing the lighting as “fair lighting . . . [e]nough where -5- you could see where you was [sic] going”).) They explained that customers use the walkway where plaintiff fell to get to and from the restroom, and Friday’s employees use the same tile area to get to and from the kitchen to deliver food to customers. (Savage Dep. at 24-25; Brown Dep. at 18-19.) Savage testified that on a Thursday evening - the day of the week when plaintiff was at Friday’s - there are normally 14-17 servers working, and each server is normally responsible for about four tables. (Savage Dep. at 10-11.) There were “quite a few” Friday’s employees that would have traveled over the tile floor where plaintiff fell on June 3-4, 2004 - “the bartenders . . . come from the bar area, and they come and run their food. The servers run their food. The host or hostesses come back to run food. Managers run food. And that’s an allday occurrence from the day shift throughout the night shift.” (Savage Dep. at 39.) Brown and Savage testified that Friday’s had a policy that all employees must wear “black, non slip shoes.” (Brown Dep. at 52; Savage Dep. at 27.) The purpose of these shoes is “[j]ust so you wouldn’t fall, you know, slip or fall on anything, any surfaces.” (Savage Dep. at 27.) Savage conceded that one of the reasons employees are required to wear such shoes is, as plaintiff’s counsel put it, “because when you’re in a restaurant, occasionally there’s spills.” (Id. at 28.) More specifically, Savage agreed with plaintiff’s counsel that “there’s spills in connection with servers loading their trays and taking them out to customers . . . And maybe a bartender drops a glass or a customer drops a glass, and, you know, the restaurant is someplace where spills occur.” (Id. at 29.) Brown conceded that “grease from the grease fryers gets on the floor in the kitchen” and that Brown “get[s] grease on [her] shoes walking through the kitchen.” (Brown Dep. at 62-63.) Brown also admitted that customers arrive at Friday’s for the purpose of consuming alcohol, (Id. at 21), and that no policy prohibited customers from wearing any -6- particular type of shoe on the premises. (Id. at 39.) Moreover, the only place where a door mat is used inside the restaurant is in the entrance “foyer” where the “customers come in.” (Id. at 63- 64.) Friday’s floors are generally cleaned daily by an overnight cleaning crew. (Id. at 56-57; Savage Dep. at 41-42.) The crew cleans the floors where the customers sit and the tile on the walkway between the restroom and the bar (where plaintiff fell) in the morning before Friday’s opens. (Brown Dep. at 56-57.) The kitchen is cleaned from the “[n]ight into the morning.” (Id.) Friday’s host and hostesses also go down the “restroom corridor . . . to check the restrooms every 15 to 20 minutes,” specifically to “make sure the counters are wiped off, nothing’s on the floor, the floors are swept, no toilet paper or paper towels are on the floor.” (Savage Dep. at 25.) In addition, Friday’s employees “inspect the restaurant premises throughout the day during the course of their duties.” (Def.’s Answers to Interrogatories, No. 21.) There was no other normal cleaning that took place unless “something unusual happens.” (Brown Dep. at 56-57; Savage Dep. at 42.) Whenever an employee is made aware of a spill, Friday’s policy requires that employee to “identify the area, . . . mark it, and . . . get the spill cleaned immediately.” (Brown Dep. at 54.) Brown testified that the restaurant does “get . . . greasy spots on that tile area in front of the restroom in the kitchen area,” and uses the same procedures as with spills. (Id.) If a customer slips and falls, Friday’s employees are required to check the area. (Savage Dep. at 38.) If there were a spill, Friday’s policy requires employees “to put Wet Floor signs out and then immediately get the spill up”; if there were no spill, a Friday’s employee “would have to get an incident report and then get as much information on it as possible.” (Id.) 5 The shoes plaintiff was wearing on June 3-4, 2004 were presented during plaintiff’s deposition, but not marked as an exhibit. (Myers Dep. at 28-30.) -7- On the evening of plaintiff’s fall, Savage did not see and was not aware of any spills in the restaurant prior to plaintiff’s fall. (Savage Dep. at 29.) Brown similarly did not recall any spills or problems in any part of the restaurant on June 3-4, 2004. (Brown Dep. at 53.) Brown in particular remembered that plaintiff was wearing “shoes with a heel” because Brown heard the “the clicking sound that it made on the tile” when plaintiff exited the restaurant after her fall.5 (Brown Dep. at 30.) Brown also recalled that she learned from the bartender on duty on June 3- 4, 2004 that plaintiff had been consuming alcohol. (Id. at 32-33.) II. A motion for summary judgment should be granted when the record establishes that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The substantive law of the cause of action determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The existence of other factual disputes between the litigants does not defeat an otherwise proper motion for summary judgment if none of the material facts are in dispute. Id. A dispute about a material fact is genuine and summary judgment is inappropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. In analyzing whether a genuine issue of material fact exists, the evidence and reasonable inferences from that evidence must be viewed in the light most favorable to the nonmoving party. Id. at 255. -8- Under Maryland law, a business proprietor owes a duty to his customers to exercise ordinary care to keep the premises in a reasonably safe condition. See Moulden v. Greenbelt Consumer Servs., Inc., 210 A.2d 724, 725 (Md. 1965). However, the proprietor “is not an insurer of the safety of his customers while they are on the premises and no presumption of negligence on the part of the owner arises merely from a showing that an injury was sustained in his store.” Id.; see also Giant Food, Inc. v. Mitchell, 640 A.2d 1134, 1135 (Md. 1994). To establish a prima facie case of negligence, the customer bears the burden of showing that the proprietor “created the dangerous condition or had actual or constructive knowledge of its existence.” Lexington Mkt. Auth. v. Zappala, 197 A.2d 147, 148 (Md. 1964); Rawls v. Hochschild, Kohn & Co., 113 A.2d 405, 408 (Md. 1955); Montgomery Ward & Co. v. Hairston, 78 A.2d 190, 191 (Md. 1951). Thus, a plaintiff must show first that there was a dangerous condition; if successful, the plaintiff must next prove that the defendant either caused or had knowledge of the condition. To prove that the defendant caused the condition, the plaintiff must show how the condition was brought to the place where the plaintiff was injured. See, e.g., Moulden 210 A.2d at 726 (affirming directed verdict against plaintiff in part because it was “possible that another customer may have dropped [the string bean on which plaintiff slipped]”); Rawls, 113 A.2d at 410 (affirming judgment as a matter of law against plaintiff in part because “there was no evidence to indicate how [the water on which plaintiff slipped] had been brought there . . .”); Montgomery Ward, 78 A.2d at 191 (reversing the lower court in part because the oily spot on which plaintiff slipped “could have been caused by a customer tracking or dropping the substance immediately prior to the plaintiff’s approach”). -9- If the plaintiff is unable to show that the defendant caused the condition, the plaintiff must prove that the defendant had knowledge of the condition. Ronk v. Corner Kick, Inc., 850 F. Supp. 369, 371 (D. Md. 1994); Montgomery Ward, 78 A.2d at 191. Although the customer does not have to prove that the defendant had actual knowledge of the condition, “the customer cannot recover unless it appears that the storekeeper could have discovered the condition by the exercise of ordinary care . . .” Rawls, 113 A.2d at 409. Where the plaintiff alleges that the defendant had constructive notice of the condition, “[w]hether there has been sufficient time for a business proprietor to discover, cure, or clean up a dangerous condition depends on the circumstances surrounding the fall.” Rehn v. Westfield Am., et al., 837 A.2d 981, 984 (Md. App. 2003); see also Deering Woods Condo. Ass’n v. Spoon, 833 A.2d 17, 24-25 (Md. 2003). To prove that the defendant had constructive knowledge, the plaintiff must show how long the condition existed. See, e.g., Moulden 210 A.2d at 726 (affirming directed verdict against plaintiff in part because there was “no evidence as to how long [the string bean on which plaintiff slipped] had been on the floor”); Rawls, 113 A.2d at 409 (affirming judgment as a matter of law against plaintiff in part because “there was no evidence to indicate . . . how long [the water on which plaintiff slipped] had been there . . .”); Ronk, 850 F. Supp. at 371 (granting defendant’s motion for summary judgment in part because “[p]laintiff cites no evidence as to how long the particular offending wet spot was on the floor, such that Defendants should have been on notice . . .”). A plaintiff’s evidence is legally sufficient to warrant submission of a case to the jury if it “rises above speculation or conjecture, and so affords the rational basis needed for a determination that the defendant was guilty of negligence which produced the accident.” 6 Although plaintiff has retained the shoes she was wearing the night of the fall, (Myers Dep. at 28-30), she does not argue that they provide evidence of wetness or grease. (See generally Compl.; Myers Dep.; Pl.’s Opp. to Def.’s Mot. for Summ. J.) -10- Moulden, 210 A.2d at 726. A “mere surmise” that there may have been negligence is not sufficient to survive a summary judgment motion. Id. III. Plaintiff alleges that Friday’s was “negligent in that [it] failed to place any warning signs or otherwise cordon off the area where Plaintiff was caused to fall, [and] failed to make reasonable efforts to clean up and/or properly inspect, maintain, and/or supervise the activities taking pale in the area of [Friday’s] where Plaintiff was caused to fall.” (Pl.’s Answers to Interrogatories, No. 1.) Plaintiff’s claims cannot survive summary judgment, however, because plaintiff has not shown (1) that a dangerous condition existed, and even assuming a dangerous condition, (2) that Friday’s created the dangerous condition that allegedly caused plaintiff’s fall, or (3) that Friday’s had actual or constructive knowledge of the dangerous condition. (A) Plaintiff provides little evidence supporting the existence of a dangerous condition. Plaintiff’s only support for a dangerous condition is that the floor where plaintiff fell “felt slippery.” (Myers’ Dep. at 31.) Plaintiff does not allege that her clothes or any other part of her person was wet or greasy following the fall.6 Furthermore, plaintiff concedes that she did not see what caused her to fall or see any substance on the floor before or after she fell. (Id.) No other witnesses, including the friends plaintiff was with on the evening of June 3-4, 2004, claim that the floor where plaintiff fell was slippery. Only plaintiff’s friend, Jessica Smith, testified that 7 That Brown and Savage contradict each other regarding whether they got close enough to the floor to inspect it with their hands following plaintiff’s fall, (see Brown Dep. at 27; Savage Dep. at 17), does not present a genuine issue of material fact because neither testified that there was a dangerous condition. Furthermore, it does not present a dispute of material fact as to Friday’s notice of the dangerous condition because Brown’s and Savage’s testimony is as to their subsequent inspection of the area. -11- during a subsequent visit about six months later did she her and friends comment that the floors in the area where plaintiff had fallen were “kind of slick.” (Smith Dep. at 19.) In contrast, both Brown and Savage testified that after inspecting the floor, they “did not see anything out of the ordinary.”7 (Brown Dep. at 26-27; Savage Dep. at 17.) Plaintiff could just as well have slipped on the floor because of the heeled shoes she was wearing or from the effects of the almost three alcoholic drinks she had consumed. (See Pl.’s Opp. to Def.’s Mot. for Summ. J. at 1; Myers’ Dep. at 26-27.) Furthermore, in contrast to the instant case, the cases that plaintiff relies on for support found that a dangerous condition unquestionably existed. See, e.g., Chalmers v. Great Atl. & Pac. Tea Co., 192 A. at 419, 420 (Md. 1937) (plaintiff fell over a carton box in the passage way of defendant’s grocery store); Diffendal v. Kash and Karry Serv. Corp., 536 A.2d 1175, 1176 (Md. App. 1988) (plaintiff fell over an “L-bed” cart in the frozen food aisle of defendant’s supermarket); Tennant v. Shoppers Food Warehouse Md. Corp., 693 A.2d 370, 372 (Md. App. 1997) (plaintiff slipped on leaves and fell over an empty box in front of the cabbage display in defendant’s store); O’Neill & Co. v. Crummit, 190 A. 763, 764-65 (Md. 1937) (plaintiff slipped on a greasy substance while alighting from defendant’s negligently operated elevator). For purposes of a summary judgment motion, however, viewing the facts in the light most favorable to plaintiff, I will assume that a dangerous condition did exist as plaintiff alleges. See Montgomery Ward, 78 A.2d at 191 (“For the purpose of the demurrer prayer we must -12- assume the truth of the plaintiff’s testimony that she slipped on an oily spot at the foot of the stairs,” although no other evidence of an oily spot was found). (B) Even assuming that the floor was slippery, plaintiff has not presented sufficient evidence that defendant caused or had knowledge of the dangerous condition. Plaintiff argues that a reasonable jury could conclude from deposition testimony that Friday’s employees caused the condition by transferring water or grease from the kitchen floor to the tile where plaintiff fell. (Pl.’s Opp. to Def.’s Mot. for Summ. J. at 6.) In particular, plaintiff emphasizes that she stated in her deposition that the floor in front of the kitchen “felt slippery” and later told her friend, Jessica Smith, that she slipped on “the wet floor.” (Pl.’s Opp. to Def.’s Mot. for Summ. J. at 6; Myers’ Dep. at 31; Smith’s Dep. at 13.) Furthermore, plaintiff points to Smith’s testimony that Smith observed slippery conditions on the same floor on a subsequent visit six months later, and that Brown conceded that grease spots had appeared in the same spot prior to plaintiff’s fall. (Pl.’s Opp. to Def.’s Mot. for Summ. J. at 6; Smith Dep. at 19; Brown Dep. at 54.) Brown further admitted that grease from the kitchen equipment gets on the floor in the kitchen, and had transferred before to her shoes. (Brown Dep. at 62-63.) Finally, plaintiff points out that 14-17 servers typically work on a Thursday night at Friday’s, and that “quite a few” employees go to and from the kitchen over the area where plaintiff fell. (See Pl.’s Opp. to Def.’s Mot. for Summ. J. at 6; Savage Dep. at 10–11, 39.) This evidence amounts to no more than mere speculation or conjecture, however. As plaintiff concedes, the area where plaintiff fell was shared by employees exiting the kitchen and customers traveling to the restrooms. (See Pl.’s Opp. to Def.’s Mot. for Summ. J. at 3, 7; Savage -13- Dep. at 24-25; Brown Dep. at 18-19.) Plaintiff also concedes that she did not see what caused her to fall or how it arrived there. (Myers’ Dep. at 31.) Brown’s admission that she has seen grease spots in the same area before plaintiff’s fall and Smith’s testimony that the floor was slippery six months later does not make it any more likely that those conditions were caused by Friday’s employees rather than customers. The fact that kitchen grease has gotten on Brown’s shoes before and that employees often walk over the area is similarly unpersuasive. Plaintiff has alleged that she slipped on “a wet, slippery and/or greasy substance”, (Pl.’s Answers to Interrogatories, No. 1), not specifically a greasy substance that most likely would have come from the kitchen. A customer could just as easily have tracked water from the bathroom or spilled a drink on the floor in that area. Furthermore, there is no evidence that customers walk over the area to get to the restrooms less frequently than employees walk over the area to get to the kitchen. Similarly in Ronk, the court held that plaintiff had not provided sufficient evidence that the wet spot on which plaintiff slipped in the corner of the defendant’s racquetball court was caused by the defendant’s negligent maintenance of the HVAC system. 850 F. Supp. at 370-71. The court explained: “No witness is able to say, for instance, that he saw the water emanating from the heating or cooling vent . . . [O]n the day in January, 1990 when Plaintiff fell, the wet spot might as easily have come from a hole in the roof, water or ice tracked in by earlier players, or the contents of a thermos jug inadvertently spilled on the floor.” Id. The court concluded: “Where the presence of a foreign substance on a floor is explainable by causes beyond a proprietor’s control as well as within it, it is impermissible for a trier of fact to conclude that the proprietor’s cause was the cause-in-fact.” Id.; see also Zappala, 197 A.2d at 148 (no liability for -14- grease spot on floor of parking lot, which may have leaked moments before from another customer’s car); Montgomery Ward, 78 A.2d at 191 (no liability because the oily spot on which plaintiff slipped “could have been caused by a customer tracking or dropping the substance immediately prior to the plaintiff’s approach”); Moulden, 210 A.2d at 726 (no liability for string bean on grocery store floor where “[t]he bean may have fallen from [another customer’s] grocery cart a few moments before [plaintiff] walked up the aisle”); Rawls, 113 A.2d at 410 (no liability for water spot because it could have come from another customer in the store). Accordingly, in the instant case, because it is equally likely that a customer caused Friday’s floor to be slippery, no reasonable juror could find by a preponderance of the evidence that a Friday’s employee created the dangerous condition. (C) Plaintiff’s argument that defendant had actual or constructive knowledge of the slippery floor also fails a motion for summary judgment. Plaintiff does not allege that Friday’s had actual notice of the slippery floor, (see generally Compl.; Myers Dep.; Pl.’s Opp. to Def.’s Mot. for Summ. J.), nor is there any evidence of actual notice. Instead, alleging constructive notice, plaintiff argues that Friday’s should have anticipated the risk that customers might slip on wet or greasy substances. (Pl.’s Opp. to Def.’s Mot. for Summ. J. at 9.) Plaintiff contends that by placing mats in the front of the restaurant and requiring its employees to wear non-slip shoes, (Brown Dep. at 52, 63–64; Savage Dep. at 27-28), Friday’s “knew of the danger posed by wet and greasy substances on its floors and should have anticipated the risk [plaintiff] was exposed to.” (Id.) Furthermore, plaintiff argues that in permitting customers to enter Friday’s without non-slip shoes and to drink alcohol, (Brown Dep. at 21, 39), Friday’s must have intended for -15- them “to be able to use the passageway in front of the kitchen to access the bathroom.” (Id.) Thus, plaintiff asserts, a reasonable juror could find that Friday’s “failed to exercise due care in not detecting and correcting an anticipated condition.” (See Pl.’s Opp. to Def.’s Mot. for Summ. J. at 9.) In support of this argument, plaintiff cites a line of slip and fall cases in which Maryland appellate courts held that the plaintiff deserved to have his case go to the jury. (See Pl.’s Opp. to Def.’s Mot. for Summ. J. at 5-9 (citing Chalmers, 192 A. at 422; Diffendal, 536 A.2d at 1178; Tennant, 693 A.2d at 375; O’Neill, 190 A. at 767; Mondawmin Corp. v. Kres, 266 A.2d 8 (Md. 1970).) As detailed below, these cases are clearly distinguishable from the instant case because the court in each concluded that the defendant had clearly caused the dangerous condition from which the plaintiff’s injury resulted. In Chalmers, Diffendal, and Tennant, the courts relied upon two facts distinct from the instant case in deciding for the plaintiffs: the defendants had clearly created the dangerous condition, and the incidents took place in grocery stores, where the defendants intended that customers look at the goods displayed, not watch for dangerous conditions in the aisles. In each of these cases, the plaintiff fell over a box or cart that the defendant’s employees had placed in the grocery store aisle. Chalmers, 192 A. At 420; Diffendal, 536 A.2d at 1176; Tennant, 693 A.2d at 372. Chalmers held that it could not say as a matter of law “that the conduct of the defendant in placing the carton over which the plaintiff fell in the only passageway provided for access to the meat counter, or in permitting it to remain there, afforded no negligence.” Chalmers, 192 A. at 421. Chalmers explained that the storekeeper must show greater vigilance in avoiding placing obstacles in the aisles because he “expects and intends that his customers 8 That Friday’s requires its employees to wear non-slip shoes, permits customers to wear any type of footwear, and has a mat only at the restaurant entrance is nothing more than sensible business policy; it has no bearing on whether Friday had constructive knowledge of the allegedly slippery floor on which plaintiff fell on the night of June 3-4, 2004. -16- shall look not at the floor but at the goods which he displays to attract their attention and which he hopes they will buy.” Id. at 422; see also Diffendal (emphasizing that “. . . the fact that the possessor of the premises has eyecatching objects on display which divert the visitor’s attention is an important factor for consideration” (quoting Borsa v. Great Atlantic and Pacific Tea Co., 215 A.2d 289, 292-93 (Pa. Super. 1965))); Tennant, 693 A.2d at 376 (“where the occupier . . . should anticipate an unreasonable risk of harm to the invitee . . . [e.g., “where there is reason to expect that the invitee’s attention will be distracted, as by goods on display”,] something more in the way of precautions may be required” (citing W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 61, at 427 (5th ed. 1984) (footnotes omitted))). Plaintiff’s reliance on these three cases is misplaced because there is no evidence in the instant case that Friday’s created the dangerous condition, see supra Part III(B), and the greater precautions necessary in the “grocery store scenario” do not apply to the instant case. Therefore, plaintiff’s argument that Friday’s should have anticipated the risk of plaintiff’s fall because it “intended” for its customers to use the “passageway” to the restrooms is unpersuasive.8 (See Pl.’s Opp. to Def.’s Mot. for Summ. J. at 9.) Tennant explained further why Chalmers and Diffendal do not apply to the instant case. While in Chalmers and Diffendal the dangerous condition was created by the defendant, in Moulden and Zappala - like in the instant case - “the plaintiff claim[ed] that the defendant ha[d] breached its duty to inspect for dangers created by third parties, including other invitees.” Tennant, 693 A.2d at 377. Moulden and Zappala did not 9 Similarly, the evidence in O’Neill strongly supported the conclusion that the defendant had created the dangerous condition. O’Neill affirmed a jury verdict against the defendant department store where a customer slipped on a greasy substance while alighting from defendant’s negligently operated elevator. 190 A. at 766-67. The court held that “the carrier cannot discharge its duty to the passenger by causing the elevator to drop, thereby throwing her to the floor, while she is leaving it by implied invitation of the operator.” Id. at 767. In distinguishing O’Neill, the Court of Appeals of Maryland in Montgomery Ward, 78 A.2d at 191, and Lusby v. Baltimore Transit Co., 72 A.2d 754, 756 (Md. 1950), focused on the fact that the defendant in O’Neill had clearly not provided its customers a safe exit from the elevator. Lusby stated that “the testimony of the plaintiff [in O’Neill] indicated clearly that there was so much grease on the floor and it was so dark, that it could not be seen by [plaintiff], and that it was in the exact place where she was supposed to step from the elevator.” Lusby, 72 A.2d at 756; see also Mondawmin Corp., 266 A.2d at 10-14 (upholding a jury verdict for plaintiff where the defendant’s fountain clearly caused the wet steps resulting in the plaintiff’s fall, wetness which the defendant clearly should have anticipated). Because there is no evidence that Friday’s created the dangerous condition, O’Neill and Mondawmin Corp. are distinguishable. -17- apply to Tennant because constructive notice was not an issue in Tennant: the defendant’s employees had knowingly placed the box over which the plaintiff tripped in the aisle.9 Id. Where constructive notice is the issue - such as in the instant case - Tennant held: We do not suggest, however, that an owner is always deemed on notice with respect to any act of its employee. If a store employee were, for example, unwittingly to drop some grapes on the floor, causing a hazard to a shopper, Moulden may well control. In that situation, it would not necessarily matter whether it was another customer or an employee who had unknowingly dropped the fruit. When an employee or another invitee unknowingly creates a dangerous condition the focus may shift to the owner’s duty to inspect. Id. (emphasis in original). Accordingly, the focus in the instant case must be on whether a jury could find that Friday’s did not reasonably inspect the premises. Plaintiff attacks Friday’s inspection and cleaning policies, emphasizing that Friday’s policy required only that an employee pass through the area every 15-20 minutes “for the sole purpose of assessing the condition of the restrooms.” (Pl.’s Opp. to Def.’s Mot. for Summ. J. at 8.) Plaintiff also cites Friday’s “vague[] assert[ion]” that its employees inspect the restaurant “throughout the day during the course of their duties”, -18- (Id.; Def.’s Answers to Interrogatories, No. 21), and that the area is only cleaned once a day at night or in the morning before Friday’s opens. (Brown Dep. at 56-57.) Plaintiff concludes that whether these policies constitute reasonable care is a question properly reserved for the jury. (Id.) Maryland law, however, makes clear that the issue of Friday’s constructive notice should be decided against plaintiff as a matter of law. To begin, plaintiff fails to show how long the floor was slippery, which is required to prove that Friday’s had constructive knowledge of the condition. See Moulden, 210 A.2d at 726; Rawls, 113 A.2d at 409; Ronk, 850 F. Supp. at 371. In Moulden, the court affirmed a directed verdict for the defendant supermarket because there was no evidence of actual or constructive notice of a dangerous condition. The court held: There being no evidence as to how long the bean had been on the floor, and it being possible that another customer may have dropped it just before appellant stepped on it, any finding by a jury that the employees of the store saw the bean or should have seen it in time to remove it or warn appellant, would rest on pure conjecture and not on reasonable inference. Moulden, 210 A.2d at 726 (quoting Orum v. Safeway Stores, Inc., 138 A.2d 665, 666 (D.C. App. 1958)). Similarly, in Montgomery Ward and Zappala, the Court of Appeals of Maryland emphasized that the dangerous condition could have been caused by another customer immediately prior to the plaintiff’s slip and fall; thus, the plaintiff could not prove how long the condition had existed. Montgomery Ward, 78 A.2d at 191; Zappala, 197 A.2d at 148. In Ronk, the court held that there was no constructive notice because plaintiff cited no evidence as to how long the “particular offending wet spot” was on the racquetball court. Ronk, 850 F. Supp. at 371. 10 Similarly, the Ronk court found plaintiff’s evidence that two individuals observed moisture on the walls and floor of the racquetball court on 5-7 occasions over approximately a three-year period prior to the accident insufficient. These observed incidents “are too few and far between, as well as too remote in time, to have put Defendants on constructive notice as of January, 1990 when Plaintiff fell.” Ronk, 850 F. Supp. at 371. -19- Because the plaintiffs in these cases could not show how long the condition had existed, there was no constructive notice as a matter of law. In the instant case, the wet or greasy substance that plaintiff alleges was on Friday’s floor similarly could have arisen only moments before plaintiff’s fall. Plaintiff does not allege or provide any evidence as to how long the floor was slippery before she fell. Instead, plaintiff relies on Brown’s testimony that the floor had been greasy on prior occasions, (Brown Dep. at 54), and Smith’s testimony that it looked slippery on a subsequent occasions. (Smith Dep. at 19.) This evidence is too speculative and remote to support an argument that Friday’s employees should have been on notice of or anticipated a slippery floor at 12:30 a.m. on June 4, 2004.10 Furthermore, Friday’s inspection and cleaning policies do not allow for the inference that Friday’s could have discovered the condition by the exercise of reasonable care. See Rawls, 113 A.2d at 410. In Montgomery Ward, the defendant had cleaned the store after closing the previous night and had mopped it with a dry mop the morning of the accident, which took place at 12:30 p.m. Montgomery Ward, 78 A.2d at 190. In Moulden, the manager had examined the aisle about two and half hours before plaintiff slipped. Moulden, 210 A.2d at 725. In the instant case, Friday’s employees not only cleaned the floors every morning and inspected the floor throughout the day, but also walked over the floor area where plaintiff fell every 15-20 minutes to assess the condition of the restrooms. Regardless of whether Friday’s employees walked over the area every 15-20 minutes for the “sole purpose” of checking the bathrooms, (Pl.’s Opp. to -20- Def.’s Mot. for Summ. J. at 8), their trip over the area would nonetheless have made them aware of any wetness or greasiness on the floor. Maryland courts have held that it would be unreasonable to impose a duty on occupiers to continuously inspect their premises. See Moulden, 210 A.2d at 726; Zappala, 197 A.2d at 148. I decline to impose one here. Because no reasonable jury could find that defendant created the dangerous condition or had actual or constructive notice of its existence, defendant’s motion for summary judgment is granted. A separate order to that effect is being entered herewith. Date: November 9, 2007 /s/ J. Frederick Motz United States District Judge

Birthy Hypoxia

Birth Hypoxia 

After months of readiness, specialist's visits, loading up on diapers, and considering child name books, families over the United States welcome in excess of four million new children into the world every year. Amid birth, American moms now expect unrivaled expertise, able specialists, and world class hospitals.

This joyous time can sometimes be punctured with medical emergencies during the birth of the child. Birth wounds can happen rapidly, and without brief intercession from accomplished restorative staff, they can prompt the need for long term care. Birth wounds could be particularly troublesome on families on account of the time and cost of caring for seriously injured child can take a significant toll. Victims of negligent birth injury and their families are entitled to compensation for medical expenses, the cost of long term specialized care and pain and suffering. 

To bring down the danger of difficulties, expecting families ought to look into the most well-known Birth wounds and how therapeutic staff ought to mediate when crises happen.

Birth Hypoxia

Hypoxia happens when an unborn baby is denied oxygen as a result of  the umbilical cord wrapping around the neck. Doctor's facilities can identify this kind of trouble with cautious fetal observing to guarantee the child's heart rate is not anomalous. In the event that anomalies are recognized, therapeutic staff can mediate by giving the mother more oxygen or turning her onto her cleared out side. In more serious cases, it might be important for a physician assisted birth using forceps or in extreme cases by Caesarian section.

Babies with mild asphyxia during childbirth can make a full recuperation. They are regularly given oxygen help until they can inhale well all alone and afterward nearly observed. In the event that children go excessively long without enough oxygen, they may suffer permanent damages to critical organs or even death. Lack of oxygen to the brain could result in mental retardation.   Hypoxia can prompt cerebral paralysis, formative inabilities, impeded sight, and in the more serious cases, demise.

Moms whose infants have extreme instances of hypoxia ought to additionally get some information about a creative treatment that uses a cooling top or cover. Babies are kept in escalated forethought while their body temperatures are cooled for a few days, which can intrude on mind harm that would overall be irreversible.

Free Case Review

With an educated pregnancy wellbeing arrangement and capable doctors, moms ought to expect an anxiety free birth. Notwithstanding, in the event that you or a friend or family member has addresses about the standard of consideration got amid the birth of an infant, I urge you to contact our firm. With our group's medicinal experience, I can completely and rapidly audit your case at no charge. No fee unless I recover financial compensation in your case.

Birth Injuries – Erbs Palsy and Jaundice

Birth Injuries - Erbs Palsy and Jaundice

Erb's Palsy

At the point when a child's shoulder gets to be stuck behind the mother's pubic bone amid birth (known as shoulder dystocia), genuine wounds like Erb's paralysis can happen. Erb's paralysis is a nerve harm to the brachial plaxis (the nerves encompassing the shoulder), which causes shortcoming or loss of motion of the upper arm and some of the time influences turn of the lower arm. Albeit most children recoup from nerve wounds to this territory of the body, around 20% of the time the wounds are changeless. Families ought to get some information about Erb's paralysis if their child's arm hangs to one side of the body and is pivoted internal, or if the infant can just move one arm.

Nerve wounds, for example, Erb's paralysis might be stayed away from when moms get legitimate forethought and data from their specialists. Bigger infants or children conveyed later than anticipated are most at danger for experiencing shoulder dystocia, so specialists may prompt that these mother not convey vaginally to maintain a strategic distance from complexities. In case an infant's shoulder does get to be wedged behind the mother's pubic bone amid birth, a group of gifted medical attendants and specialists can use a few methods and moves to securely unstick the shoulder.

It is essential to recollect that Erb's paralysis is quite often a preventable Birth harm. Moms whose children are conceived with these sorts of nerve wounds ought to examine whether their restorative forethought fell beneath a worthy standard amid birth.

Kernicterus (Severe Jaundice)

A typical condition in infants, jaundice is a yellow coloring of the skin, eyes, or different tissues. It happens when the child creates an abnormal state of bilirubin, a yellow color made by typical body capacities.

In the event that bilirubin levels get to be high, the substance will start gathering in the cerebrum tissue and, if left untreated, cause perpetual neurological harm, loss of hearing, or demise. Babies with right on time stage kernicterus may appear dormant or have low muscle tone (known as hypotonia). As the condition compounds, children may transmit a sharp holler, curve their backs and bend their bodies, or start to seize.

Kernicterus is an intense condition and ought to be dealt with instantly to prevent lasting incapacity. Moms ought to have their babies' bilirubin levels measured if jaundice shows up inside the initial 24 hours of Birth or if jaundice keep going longer than the initial couple of days of life. Babies with darker skin ought to be checked particularly nearly, as extreme jaundice could be hard to locate. Phototherapy is the most widely recognized treatment for infants with kernicterus, which includes the child being set under uncommon lights to energize the breakdown of bilirubin.

Free Case Review

With an educated pregnancy wellbeing arrangement and capable doctors, moms ought to expect an anxiety free birth. Notwithstanding, in the event that you or a friend or family member has addresses about the standard of consideration got amid the birth of an infant, I urge you to contact our firm. With our group's medicinal experience, I can completely and rapidly audit your case at no charge. No fee unless I recover financial compensation in your case.

 

False Imprisonment – Store Security

False Imprisonment - Store Security

Montgomery Ward Stores v. WilsonAnnotate this Case

101 Md. App. 535 (1994)

647 A.2d 1218

MONTGOMERY WARD STORES ET AL. v. FRANCES WILSON.

No. 1596, September Term, 1993.

Court of Special Appeals of Maryland.

September 28, 1994.

John B. Kaiser (McCarthy, Bacon & Costello, on the brief), Lanham, for appellant.

E. Gregory Lardieri, Greenbelt, for appellee.

Argued before ALPERT, GARRITY and FISCHER, JJ.

ALPERT, Judge.

Having been found liable for malicious prosecution and false imprisonment, appellants, Montgomery Ward Stores and Jeffrey Bresnahan, appeal from a judgment entered by the Circuit Court for Prince George's County on a jury verdict in favor of appellee, Frances Wilson, in the amount of $15,000 in compensatory damages and $45,000 in punitive damages. Appellants raise the following issues on appeal:

I. The circuit court erred in failing to grant appellant's motion for judgment. II. The trial court erroneously instructed the jury and erroneously permitted the jury to consider the issue of punitive damages. III. The trial court erroneously excluded important evidence critical to appellant's defense. Facts and Proceedings

In August 1987, the loss prevention department for the Montgomery Ward store in Temple Hills, Maryland, received complaints from customers regarding unauthorized credit charges on their monthly statements. Appellee was employed as a sales associate with Montgomery Ward from August through October of 1987. On September 4, 1987, she was approached by security guards, who stated that they wanted to interview her. Appellee proceeded upstairs to the office, where she was interviewed by Jeffrey Bresnahan, Montgomery Ward's loss prevention manager. She testified that Mr. Bresnahan asked if she "knew of anybody that's doing any stealing in the store." He then showed her "a couple of slips that had some signatures on them" and asked her if they were her signatures. Appellee denied ever having seen those credit card slips before. Later that day, appellee overheard Mr. Bresnahan say that she was lying and that he would get a warrant for her arrest.

In October 1987, while appellee was working in the store, a security guard and two Prince George's County Police Officers approached her. She was placed under arrest, handcuffed, and escorted out of the store in front of numerous customers and other employees. Appellee stated that she was "scared, nervous, humiliated, and embarrassed." Eventually, appellee was informed that she had been arrested on charges of credit card theft. The case against her was later "dismissed" in the District Court. As a result of the arrest, appellee lost her position with Montgomery Ward and had difficulty finding other employment. Appellee's mother, Mary Powell, testified that prior to this incident appellee had never been in any trouble with the law. She stated that after the arrest appellee's personality changed and her "nerves got real bad." Appellee's behavior returned to normal within a year, however.

Sandra Broadway was employed as a sales associate at Montgomery Ward during August and September of 1987. She and appellee were co-workers. She testified that Mr. Bresnahan interviewed her on September 2, 1987, regarding unauthorized credit card transactions that had been recorded on her cash register. She told him that appellee was the one responsible for making these credit card charges. Ms. Broadway stated that on several occasions appellee gave her slips of paper with account numbers written on them and asked her to charge merchandise to these accounts. According to Ms. Broadway, appellee said that she had permission to use these accounts because they belonged to her cousin or her sister. Ms. Broadway said that she accepted these charges from appellee, although appellee never presented a credit card. At trial, Ms. Broadway admitted that it was a violation of store policy to accept credit card charges without presentation of a credit card or a driver's license to verify the identity of the person making the charge.

Lisa Holmes was employed as a sales associate at Montgomery Ward in August and September of 1987. She testified that she saw appellee purchase merchandise from Ms. Broadway by giving her a piece of paper with a credit card number on it. She heard appellee say that the charge account belonged to her cousin. Ms. Holmes reported this incident to the loss prevention department when she was interviewed, although she stated that appellee had asked her not to report it.

Mr. Bresnahan testified that on August 26, 1987, he started an investigation into complaints of fraudulent credit card use. Based on his review of the register receipt tapes he determined that these fraudulent charges had all been recorded under Ms. Broadway's identification number. He initially suspected that Ms. Broadway was responsible for the fraudulent charges. When he interviewed Ms. Broadway, however, she told him that she had permitted appellee to make these charges on several occasions because appellee had claimed that she was authorized to use these credit card account numbers. Although Ms. Broadway's acceptance of these charges from appellee without presentation of a credit card or a driver's license was in violation of store policy, Mr. Bresnahan testified that no disciplinary action was taken against Ms. Broadway. He stated that he found "no problem" with the way Ms. Broadway had handled the credit charges at issue here. Rather, his interview with Ms. Broadway led him to investigate appellee as a suspect. He stated that when he interviewed appellee she was not cooperative and that her answers were "limited to one word, yes or no." Mr. Bresnahan then interviewed Ms. Holmes, who stated that she saw appellee charge items by presenting an account number on a piece of paper to Ms. Broadway. Ms. Holmes told Mr. Bresnahan that she heard appellee say that the account belonged to her cousin.

Mr. Bresnahan testified that the merchandise that was fraudulently charged included a full-figured sweater and a maternity bra. There was evidence that appellee is a petite woman who would probably not wear such clothing. No attempt was made to compare appellee's handwriting with any handwriting or signatures on the charge slips. Mr. Bresnahan consulted with the store management and a determination was made to press charges against appellee. No further investigation was undertaken. The application for the statement of charges was submitted to the Commissioner for Prince George's County and a warrant was issued for appellee's arrest. Appellee was arrested and the case was set for trial in the District Court. The charges were subsequently dismissed for reasons that are not apparent in the record. Appellee filed suit for false arrest and malicious prosecution. Appellants' motion for judgment was denied, and the jury verdict, in favor of appellee were entered. This appeal followed.

I. Malicious Prosecution

Appellants contend that the trial court erred by failing to grant their motion for judgment on the malicious prosecution count. The necessary elements for a claim of malicious prosecution are:

(a) a criminal proceeding instituted or continued by the defendant against the plaintiff, (b) termination of the proceeding in favor of the accused, (c) absence of probable cause for the proceeding, and (d) malice, or a primary purpose in instituting the proceeding other than that of bringing an offender to justice.

Brewer v. Mele, 267 Md. 437, 440, 298 A.2d 156 (1972). Appellants argue that appellee failed to establish a legally cognizable claim of malicious prosecution because she did not prove that the criminal proceeding against her was brought without probable cause and with malice. We disagree.

Probable Cause

In both malicious prosecution and false arrest cases, Maryland courts have frequently addressed the issue of whether probable cause was established as a matter of law or whether a factual dispute warranted submission of the probable cause issue to the jury. Probable cause consists of a reasonable ground of suspicion supported by circumstances strong enough to warrant a cautious person's belief that the accused is guilty. Palmer Ford, Inc. v. Wood, 298 Md. 484, 493, 471 A.2d 297 (1984). In determining whether probable cause existed, the focus is on the facts known, or which reasonably should have been known, to the one initiating the criminal proceeding. Id. at 495, 471 A.2d 297.

When there are sufficient facts supporting probable cause that are undisputed, probable cause may be decided as a matter of law. See, e.g., Stansbury v. Luttrell, 152 Md. 553, 137 A. 339 (1927) (where Luttrell admitted that he directed his servants to cut timber on property that did not belong to him, there was probable cause as a matter of law to prosecute him for theft); Medcalfe v. Brooklyn Life Ins. Co., 45 Md. 198 (1876) (where Medcalfe admitted that he appropriated his principals' funds to his own use, probable cause for embezzlement existed as a matter of law); Kimbrough v. Giant Food, 26 Md. App. 640, 339 A.2d 688 (1975) (where Kimbrough, an employee, gave an "incredible" explanation for his conduct in leaving store with groceries that had been mislaid by a customer, probable cause for shoplifting existed as a matter of law).

In Exxon Corp. v. Kelly, 281 Md. 689, 381 A.2d 1146 (1978), an Exxon supervisor claimed that he saw Kelly, a mechanic, loading gasoline into the trunk of his car. Kelly was charged with theft. Subsequently, a nolle prosequi was entered and Kelly filed suit for, inter alia, false imprisonment and malicious prosecution. The Court of Appeals held that because Kelly categorically denied stealing the gas, the facts relied upon to determine probable cause were in dispute, and the issue of probable cause was a jury question. The court stated, "[F]urthermore, under conflicting evidence `the issues as to probable cause and malice, however great the preponderance of probability may [seem] to be on the side of [the] defendant, [are] issues of fact, not law, and under our theory and system of trials their submission to the jury [is] necessary.'" Id. at 698, 381 A.2d 1146 (quoting Veid v. Roberts, 200 Ala. 576, 76 So. 934, 934 (1917)).

Thus, where the parties dispute the facts supporting probable cause, the absence of probable cause is a question for the jury. See Montgomery Ward & Co. v. Cliser, 267 Md. 406, 298 A.2d 16 (1972) (where store detective claimed that customer put merchandise in his pocket, but customer denied this, probable cause was a jury issue); Safeway Stores, Inc. v. Barrack, 210 Md. 168, 122 A.2d 457 (1956) (where security guard claimed that customer had concealed items, but customer denied this, probable cause was a jury question); Kennedy v. Crouch, 191 Md. 580, 62 A.2d 582 (1948) (where Crouch called Kennedy a "screwball," but Crouch contended that he had not made "loud and unseemly noises," probable cause for prosecution on disorderly conduct charge was a jury question); Glover v. Fleming, 36 Md. App. 381, 373 A.2d 981, cert. denied, 281 Md. 738 (1977) (where initial suspect in theft stated that he had seen Fleming steal the money, but Fleming denied this, probable cause was a jury issue).

Additionally, failure to make an adequate investigation of suspicious circumstances may destroy probable cause. K-Mart Corp. v. Salmon, 76 Md. App. 568, 579, 547 A.2d 1069 (1988), cert. denied, 314 Md. 496, 551 A.2d 867 (1989). This is so because

the test for probable cause is not limited to actual knowledge of the person initiating criminal proceedings, but rather extends to any knowledge which could or ought to have been gained by a reasonable person. There may be no probable cause where a proper investigation would have cleared away suspicious circumstances.

Id. For instance, in Montgomery Ward & Co. v. Keulemans, 275 Md. 441, 340 A.2d 705 (1975), a security guard claimed that he saw Keulemans, an employee, shoplift sunglasses by placing them in his pocket. When he was confronted, Keulemans stated that he had purchased the sunglasses at People's Drug Store. Keulemans was arrested. After his acquittal, he filed suit for, inter alia, false arrest, false imprisonment, and malicious prosecution. The Court of Appeals held that probable cause was a jury issue because the security guard in this case should have investigated further, before bringing charges against Keulemans. Id. at 448, 340 A.2d 705.

In the case now before us, appellee was implicated solely by the evidence of Ms. Broadway, the initial suspect. While Ms. Holmes stated that she saw appellee charge items and heard appellee say that the credit account belonged to her cousin, we note that this evidence is not necessarily inconsistent with appellee's innocence. Ms. Holmes did not identify the fraudulent credit charges at issue here as having been made by appellee. Additionally, it is clear that Mr. Bresnahan knew that Ms. Broadway had failed to follow store policy by requiring proper identification before accepting the fraudulent charges. There was evidence that the clothing that was charged was not likely to be worn by appellee. Finally, no attempt was made to compare appellee's handwriting to the forged signatures on the credit slips. Given these facts, the jury could have found that further investigation was warranted.[1] Thus, we conclude that there was sufficient evidence of lack of probable cause to warrant submitting this issue to the jury.

Malice

In the context of a malicious prosecution case "malice" has been defined as "a primary purpose in instituting the proceeding other than that of bringing an offender to justice." Barrack, 210 Md. at 173, 122 A.2d 457. Once the jury determined that probable cause was lacking, it was permitted to infer malice. See, e.g., Banks v. Montgomery Ward & Co., 212 Md. 31, 42, 128 A.2d 600 (1957); Barrack, 210 Md. at 175, 122 A.2d 457; Medcalfe, 45 Md. at 204 ("[m]alice may be inferred from the want of probable cause"). As the Court of Appeals held in Boyd v. Cross, 35 Md. 194, 197 (1872):

Malice is a question of fact for the jury, and its existence may be and most generally is inferred from the want of probable cause for the prosecution, but it does not necessarily follow that because there is an absence of probable cause, the defendant must have been actuated by malice. The presumption of malice, resulting from the want of probable cause is only prima facie, and may be rebutted by the circumstances under which the defendant acted.

Thus, as we have held that the issue of probable cause was a jury question, the existence of malice was also properly submitted to the jury. We hold that appellants' motion for judgment as to the malicious prosecution count was properly denied.

Favorable Termination

Appellants additionally contend that appellee failed to establish the second element under a claim of malicious prosecution; namely, that the criminal proceeding below terminated in her favor. Brewer, 267 Md. at 440, 298 A.2d 156. The record reveals, however, that this argument was not presented below in either motion for judgment. It therefore has not been preserved for our review. Md.Rule 8-131(a) (1994).[2]

Even if this issue had been preserved for review, the record does not fully support appellants' contention. At the beginning of the proceeding, appellants sought and were granted a motion in limine to limit testimony suggesting a finding in the District Court of "not guilty." Evidence relating to the favorable termination element, therefore, was restricted to testimony that the charges were "dismissed." An acquittal, dismissal, or abandonment of prosecution, absent evidence suggesting unfavorable circumstances, is sufficient to sustain an action for malicious prosecution. See Banks v. Montgomery Ward & Co., 212 Md. 31, 38, 128 A.2d 600 (1956); Goldstein v. Rau, 147 Md. 6, 13, 127 A. 488 (1925). See also State v. Meade, 101 Md. App. 512, 529, 647 A.2d 830, 838 (1994). The appellee having established a prima facie case, the burden shifted to appellants to rebut the evidence of favorable termination below. See Ristaino v. Flannery, 317 Md. 452, 457-59, 564 A.2d 790 (1989). As the evidence remained uncontradicted, we cannot say the trial judge erred in denying the motion for judgment and submitting the case to the jury.

False Arrest/Imprisonment

Appellants next contend that appellee failed to establish a legally cognizable claim of false arrest. "False imprisonment and false arrest are common law torts that apparently differ only in terminology." Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 654, 261 A.2d 731 (1970). Under the common law, the tort of false arrest consisted of an arrest without legal authority. See Kimbrough v. Giant Food, Inc., 26 Md. App. 640, 643, 339 A.2d 688 (1975). Additionally, pursuant to statute, a merchant who causes the arrest of a person may not be held civilly liable for false arrest if, in causing the arrest, the merchant had probable cause to believe that the person had committed the crime of theft. Md. Ann. Code (1989 Repl.Vol.), § 5-307, Cts. & Jud.Proc. Article. Thus, where probable cause is shown, a merchant will not be liable for false arrest. As we have stated, we conclude that the question of the existence of probable cause for appellee's arrest and prosecution was properly submitted to the jury.

Appellants cite Brewer v. Mele, 267 Md. 437, 440, 298 A.2d 156 (1972), for the proposition that where an arrest has been effected by valid legal process, an action for false arrest is ordinarily not available. As appellants did not raise this argument below, it is not preserved for our review. Md.Rule 8-131(a) (1994).[3]

II.

Appellants next contend that the trial court erred in its instructions to the jury on the issue of punitive damages. The court properly instructed the jury that appellee had the burden to show by clear and convincing evidence that she was entitled to punitive damages. Additionally, the court stated that either actual malice or implied malice could support an award of punitive damages in this case.

Implied Malice

In defining implied malice, the court said:

The law considers that malice exists in the risk and danger that were known or should have been known at the time. The conduct was performed in such a way to show it was so reckless and so dangerous that it had the disregard for the rights of others, or the conscious disregard for what they did. It is not, I repeat the words, not necessary to show that such conduct was influenced or motivated by hatred.

We conclude that the court correctly instructed the jury that a finding of implied malice could support an award of punitive damages in this case. Appellants cite Owens-Illinois v. Zenobia, 325 Md. 420, 460, 601 A.2d 633 (1992), for the proposition that punitive damages may not be awarded unless actual malice is shown. Zenobia dealt with non-intentional tort actions and, thus, is inapposite. Id. at 460 n. 21, 601 A.2d 633. Contrary to appellants' argument, actual malice is not required as a basis for awarding punitive damages in an intentional tort case. Rather, in a malicious prosecution or false arrest case, punitive damages may be recovered where malice may be implied from wantonness or from lack of probable cause. Montgomery Ward & Co. v. Keulemans, 275 Md. 441, 448-49, 340 A.2d 705 (1975); See also Montgomery Ward & Co. v. Cliser, 267 Md. 406, 421, 298 A.2d 16 (1972) ("[s]ince malice may be implied from want of probable cause ... it would now seem possible to recover punitive damages in a false arrest case without proof of actual malice").[4]

Ability to Pay Punitive Damages

Appellants argue that because there was no evidence regarding the net worth of Montgomery Ward or Mr. Bresnahan, the award of punitive damages was improper. At the close of the evidence, appellant moved for judgment on the issue of punitive damages, contending that the plaintiff was required to introduce evidence of net worth but failed to do so. We agree that, once liability has been established, but not before, evidence of a defendant's ability to pay punitive damages should be considered. See Fraidin v. Weitzman, 93 Md. App. 168, 211-17, 611 A.2d 1046 (1992), cert. denied, 329 Md. 109, 617 A.2d 1055 (1993).

Appellants apparently would require that evidence of net worth must be introduced before defendant is determined to be responsible for compensatory damages. That cannot be the posture of the law. Indeed, that practice would seem to be precluded by Md.Code C.J. § 10-913(a), which provides:

In any action for punitive damages for personal injury, evidence of the defendant's financial means is not admissible until there has been a finding of liability and that punitive damages are supportable under the facts.

(Emphasis added).

Assuming, arguendo, that this type of case may not be considered as one of "personal injury," the logic of the statute is compelling the wealth or poverty of a defendant could most certainly be an inappropriate influence upon a jury.

We do not suggest "mandatory bifurcation" of compensatory and punitive damage claims. The Court of Appeals spoke to this in Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992):

Second, amici argue that we should impose mandatory bifurcation of the compensatory and punitive damages claims. We note that a trial court may exercise its discretion and bifurcate these issues, pursuant to Maryland Rule 2-503(b). In addition, as frequently occurs in light of Maryland Code (1974, 1989 Repl.Vol.), § 10-913(a) of the Courts and Judicial Proceedings Article (precluding evidence of a defendant's financial means until there has been a finding that punitive damages are supportable under the facts), the trial court will instruct the jury on the compensatory claims and on the defendant's potential liability for punitive damages. Then, once the jury has made a finding of liability on the underlying claims and has determined that there should be liability for punitive damages, the trial court will further instruct the jury concerning the calculation of a punitive damages award. This is precisely the procedure that was followed in these cases. If there were two separate damages trials in every case, much of the evidence at the trial solely on the issue of punitive damages would duplicate the evidence admitted at the compensatory damages trial. Many of the same witnesses would have to be recalled to repeat their testimony before the jury. In light of the fact that this duplication would burden both witnesses and jurors as well as waste judicial resources, we believe that mandatory bifurcation is undesirable.

Id. at 473-74 n. 29, 601 A.2d 633.

We do believe, however, that the general practice is and should be to withhold evidence of ability to pay until and unless the jury awards compensatory damages and decides to award punitive damages. When and if the jury awards compensatory damages, then the trial judge can instruct fully on punitive damages after the presentation of evidence of the defendant's ability to pay. There is but one jury and one trial, although the presentation of financial evidence is delayed until the appropriate time. Thus, the trial truly is not divided into two parts, and witnesses need not be recalled. As to the admission of other evidence that relates to punitive damages, the relevance and admissibility thereof is a matter within the discretion of the trial court to be determined on an ad hoc basis.

Additionally, appellants argue that the court improperly took judicial notice of Montgomery Ward's status as a major corporation in Maryland. Appellants reason that this had "the practical effect of inviting the jury to feel free to select any figure they capriciously so chose." The court instructed the jury on punitive damages and stated, among other things:

There's been no evidence in this case of a financial condition, but I do take judicial notice that Montgomery Ward is a major corporation, and I think you can, as I have, you can do the same.

That instruction may have inappropriately influenced the jurors on the question of liability and would have been equally incorrect if the question of punitive damages had been properly before the jury at that point. There was, however, no objection to that instruction. See Md.Rule 2-520(e).

Earlier in the proceedings, appellant argued its motion for judgment on the issue of punitive damages, contending, at that juncture, that "there's a requirement in Maryland law that the plaintiff, that there be evidence submitted to the fact finder of the financial net worth of the defendant and their ability to pay." The trial judge responded, "I don't think that's necessary when you're dealing with corporations. I can take judicial notice of Montgomery Ward."[5] Appellant's argument, which was not restated as an objection after the jury had been instructed, could not be considered on appeal as an objection to those instructions. See, e.g., Duvall v. Potomac Electric Power Co., 234 Md. 42, 48, 197 A.2d 893 (1964), and Aetna Casualty & Surety Co. v. Hartford Accident & Indemnity Co., 74 Md. App. 539, 549, 539 A.2d 239 (1988).

III.

Appellants argue that the trial court improperly sustained objections on hearsay grounds that prevented Mr. Bresnahan from testifying with regard to statements made to him by Ms. Broadway and Ms. Holmes. More specifically, on appeal, appellant now asserts:

Because this case was replete with issues of reasonableness, probable cause and malice, Mr. Bresnahan's testimony regarding what interviews he conducted and how he conducted them were highly relevant. When specifically asked to recount the investigation he prepared and the statements he considered, the trial court sustained a hearsay objection, notwithstanding Appellant's proffer and argument. The trial court precluded Mr. Bresnahan from properly and fully testifying about the investigation.

Although appellant has not directed us to the subject rulings of the court, we believe them to be as follows:

A. I then asked Miss Broadway how to how it could be her cousin's. And she went on to explain to me, or made the statement to me MR. LARDIERI: Objection. THE COURT: I'll sustained [sic] that. * * * * * * Q. Okay. A. Miss Broadway gave me a written statement on that day. Q. Okay. A. Stating MR. LARDIERI: Objection. THE COURT: I'll sustain that objection. * * * * * * Q. Did Miss Broadway confess any guilt to you involving these credit card frauds? A. No sir, not the guilt. She just stated to me MR. LARDIERI: Objection. THE COURT: You've answered the question. * * * * * * I then talked to Miss Broadway again, where she stated to me at that time MR. LARDIERI: Objection. THE COURT: Sustain the objection. Trial counsel argued to the court: The issue in this case is the reasonableness and maliciousness of the defendant in this case. The statements he's trying to make are not for the truth of the matter asserted, but for what he did next.

The court responded by sustaining the objection and instructing trial counsel to rephrase the question. Assuming that the trial judge sustained the objection based on grounds of hearsay, he erred inasmuch as trial counsel explained that the statements to be elicited were not for the purpose of offering the truth of the matters contained therein. There were, however, no specific proffers as to what the statements would reveal. As explained in Joseph F. Murphy, Jr. Maryland Evidence Handbook § 101 (2d ed. 1993):

If the trial judge erroneously sustains an objection to your question, you must "proffer" (state for the record) what the answer would be. An offer of proof gives the trial judge a better understanding of the issue triggered by the objection, as well as the opportunity to reconsider a hasty ruling. Its most important function, however, is to preserve the erroneous ruling for appellate review.

See also Jacob A. Stein, Trial Handbook for Maryland Lawyers § 31.7 (2d ed. 1986). To the extent that the court understood what appellant was trying to prove, and therefore a proffer was unnecessary, see Jorgensen v. State, 80 Md. App. 595, 565 A.2d 371 (1989), "[a]ny error of exclusion was cured by facts established otherwise." Braxton v. State, 57 Md. App. 539, 550, 470 A.2d 1327 (1984). As both Ms. Broadway and Ms. Holmes testified regarding their statements, we conclude that any error was harmless and does not merit reversal.[6] If, indeed, appellant was attempting to establish more than that to which Ms. Broadway and Ms. Holmes testified, he did not proffer that to the court and, to that extent, the issue is not preserved for our review.

Additionally, the court properly exercised its discretion in refusing to admit a document that appellant had failed to disclose to appellee's counsel during discovery.

Finally, appellants contend that the trial judge erred in admitting a certified copy of the docket entries in appellee's criminal case that contained the notation "N.G." Appellants claim that this evidence improperly allowed the jury to believe that appellee was acquitted in the criminal case. We see no merit in this argument, especially considering that appellee testified that the charges against her were "dismissed."[7]

The record reveals that the trial judge also considered the "N.G." notation within the docket entries as merely a "short hand way of disposing of the case." The trial judge, therefore, admitted the document but agreed to "let it come in with some explanation of what N.G. means." On the record it seems that the trial judge later forgot to give this explanatory instruction. Appellants, however, made no further objection to his instructions in that regard.

Appellants further assert that they were improperly denied the opportunity to rebut this evidence. Specifically, appellants claim that during direct examination they were prevented from bringing out testimonial evidence of "why the charges were dropped." Appellants, however, never proffered the anticipated testimony or the facts that would show that the criminal proceeding against appellee did not terminate in her favor. Without the required proffer, this issue is not preserved for our review. Shpak v. Schertle, 97 Md. App. 207, 214-16, 629 A.2d 763 (1993).

JUDGMENTS AFFIRMED; APPELLANTS TO PAY THE COSTS.

NOTES

[1] The jury was instructed:

Failure to conduct an adequate investigation may destroy the probable cause. It is not just the accuser[']s limited knowledge, but extent to any knowledge that should or could have been obtained by a reasonable person. So that probable cause does not exist if a proper investigation could have cleared the accused.

[2] The jury was instructed on this point, without objection:

Now, what is malicious prosecution? Malicious prosecution is the beginning or continuing of a legal prosecution with malice and without probable cause against another, where the proceedings terminate in favor of the other person. In other words, it's a continuing of a legal proceeding with malice against the other person, where the proceeding terminates or ends in favor of the other person, in this case in favor of Miss Wilson.

[3] The trial judge, in pertinent part, instructed the jury:

So, she's suing Montgomery Ward and Jeffrey Bresnahan for a tort action, an intentional wrong, of false arrest. I'll describe what that is. She's also suing them for something else. Malicious prosecution. She doesn't have to prove both to get damages, but she has to prove one to get the compensatory part of the damages. She has to prove at least one.

No objection was made to this instruction. But see Caldor v. Bowden, 330 Md. 632, 662-63, 625 A.2d 959 (1993), where the Court of Appeals held that "there must be an award of compensatory damages for each count which forms the foundation for an award of punitive damages." See also Rispoli v. Jackson, 51 Md. App. 606, 612-13, 445 A.2d 349 (1982).

[4] Appellants further assert that appellee argued to the jury that she incurred some lost wages as a consequence of her alleged false arrest and malicious prosecution. Appellants therefore argue that the award of compensatory damages should be vacated because compensation for lost wages is not available in a malicious prosecution case. As this argument was not raised below, however, it is not preserved for our review. Md.Rule 8-131(a) (1994).

Even if this issue were preserved, appellant's argument is unavailing. No authority was cited for this assertion, nor have we found any. To the contrary, one of the most respected treatises, W. Page Keeton et al., Prosser and Keeton on Torts § 119 (5th ed. 1984), states that if successful in a malicious prosecution claim, a plaintiff "may recover for any specific financial loss such as loss of present or prospective employment, or loss of business profits which can be proved with reasonable certainty to be caused by the prosecution."

If anything, this court implicitly approved of the element of "lost wages" in Freeman Ass'n v. Murray, 18 Md. App. 419, 306 A.2d 548 (1973). In that case, we upheld an award of $15,000 in compensatory damages where "Plaintiff was able to show out-of-pocket expenses of only $250.00 for attorney's fees and a few days of lost wages." Id. at 423, 306 A.2d 548.

[5] Md.Rule 5-201 (1994) Judicial Notice of Adjudicative Facts, which was not in effect at the time of trial, provides, in relevant part:

(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

* * * * * *

(e) Opportunity to be Heard. Upon timely request, a party is entitled to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

In her commentary on Rule 5-201(b), Professor Lynn McLain observes that "[t]he trial judge's personal knowledge of an adjudicative fact does not make it a proper subject of judicial notice." McLain, Maryland Rules of Evidence at 82 (1994) (citing Neal v. Fisher, 312 Md. 685, 696-97, 541 A.2d 1314, 1320 (1988)) (emphasis in original).

[6] With regard to Ms. Broadway (also known as Sandra Fuller), the pertinent part of her testimony follows:

Q. During the course of that interview, did you tell Loss Prevention people that you knew about this incident?

A. Yes.

Q. What did you tell them?

A. I told them that she was, you know, charging up stuff on her cousin's or her sister's account. And she said you couldn't get in trouble for it, because they couldn't prove it was her cousin.

Q. Okay. How many times did you meet with Loss Prevention Specialists regarding this incident?

A. Two or three times.

Q. Okay. And each time that you met with them, did you discuss conversations you had with Miss Wilson?

A. No, I didn't.

Q. Each time you met with them, do you remember when the first time was that you met with the Loss Prevention people?

A. No, I don't.

Q. Do you remember the second time that you met with them, what you told them differently from the first time that you met with them?

MR. LARDIERI: Objection. I think it's leading.

THE COURT: If she remembers. If she doesn't, she doesn't.

THE WITNESS: No. I don't remember exactly.

BY MR. KAISER:

Q. Okay. Do you remember why you met with them on three separate occasions?

A. Yes.

Q. Can you tell us why?

A. They were investigating Miss Wilson and the charge account.

With regard to Ms. Holmes, she testified as follows:

Q. Did there come a time when you were interviewed by the Loss Prevention Department in Montgomery Ward?

A. Yes.

Q. What was that interview about?

A. What all went on.

Q. Excuse me?

A. What all went on.

Q. Who were you interviewed by?

A. I think it was Joe and Calvin. And I think there was somebody else, but I can't remember.

Q. Did you give them a statement?

A. Yes, I did.

Q. What did you tell them?

A. I told them that it's been so long, that I can't remember everything I said. But that she had some merchandise, and she came up to the register with a white piece of paper, and gave it to the cashier, and I can't remember her signing it. I know she had some clothes.

[7] That testimony was as follows:

Q. Now, did you go to Court on the criminal charges on the credit card theft? We're in Court now, but did you ever go to Court on the credit card charges?

A. Yes.

Q. And you don't have to tell the whole story, but can you just explain to the jury what the end result was in that case?

A. It was dismissed.

Q. Did any witnesses ever testify against you in the criminal Court?

A. No, they did not.

Q. Was there any trial?

A. No.

Q. Did you ever see Mr. Bresnahan there at the criminal Court?

A. No, he was not.

Expert Opinions must be based established principles

Claimants and defendants who present expert testimony have to ensure that the methods and calculations used are widely used in the articular field to from opinions. By doing so, parties will ensure that they meet the burden on showing that opinions rendered are the result of reliable principles. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND LAWRENCE V. HARDESTY, SR., : Plaintiff : : : v. : Civil Action AMD 01-1130 : : AMERICAN SEATING CO., : Defendant : MEMORANDUM Before the Court in this diversity personal injury damages action are the parties’ cross motions for summary judgment. Defendant’s motion includes a challenge to the qualifications of Plaintiff’s expert witness on liability and the reliability of the expert’s methodology to render the causation opinion he renders. An oral hearing has been conducted and counsel have filed supplemental letter memoranda. Plaintiff was invited to have his expert testify by video conference to allay the court’s concerns as to the reliability of the expert’s opinions, but Plaintiff has declined that opportunity. For the reasons set forth herein, Plaintiff’s motion for summary judgment shall be denied and Defendant's motion will be granted. I. BACKGROUND The material facts, viewed in the light most favorable to Plaintiff, are as follows. Plaintiff is an experienced, over- 2- the-road, tractor-trailer truck driver. On or about August 24, 1998, at Defendant’s plant located in Grand Rapids, Michigan, Plaintiff picked up a load of stadium seating equipment which was to be installed in a National Football League arena then under construction in Baltimore. The equipment, consisting of seat backs and other parts, had been packed in large corrugated cardboard boxes. Each box weighed several hundred pounds. Defendant’s employees loaded the boxes into the trailer, using fork lift machines. The loading process took less than an hour. Plaintiff was present on the scene when his trailer was loaded; however, he remained in the cab of his truck, doing “paper work” and perhaps napping, during the loading process. The boxes containing the seating equipment were stacked two or three high onto wooden pallets, and then such a two- or three-box “pallet-load” would be stacked atop another “pallet-load.” (A photograph of a part of the load taken after Plaintiff’s arrival in Baltimore (i.e., immediately after the incident in which Plaintiff was injured) shows considerable open space between the roof of the trailer and the top of the cargo, on the one hand, and between the rear door of the trailer and the back end of the cargo, on the -3- other hand.) When the trailer had been fully loaded, Plaintiff visually examined the portion of the load that could be observed from ground level at the rear of the trailer. Truckers and shippers employ so-called “load bars” to secure freight such as that at issue in this case. Load bars are expandable metal bracing mechanisms which, when properly installed in a trailer that is properly loaded, secure the cargo in situ, thereby retard movement of the cargo during transit, and thus enhance safety. Plaintiff climbed into the rear of his trailer after one of Defendant’s employees had installed the load bars in his trailer to check that the installation of the load bars was proper and adequate. Plaintiff checked the load bars and found them secure. Plaintiff then sealed the load, and the trailer was not opened until the cargo arrived in Baltimore a day or so later. Plaintiff accepted the freight “S.L.C.” “S.L.C.” means “shipper’s load and count.” It is a term that is commonly seen in the adjudication of claims among shippers, carriers and consignees for damage to freight, see generally Dublin Co. v. Ryder Truck Lines, Inc., 417 F.2d 777 (5th Cir. 1969), and it serves as a legal device to shift the burden of proof in such -4- litigation. See generally Automated Donut Systems, Inc. v. Consolidated Rail Corp., 424 N.E.2d 265 (Mass.App. 1981); see also Marjan Int'l Corp. v. V.K. Putnam, Inc., 1993 WL 541204, *15, n. 2 (S.D.N.Y. Dec. 28, 1993)(“The legend ‘SLC’ refers to ‘shipper's load and count’ and indicates that the shipper, but not the carrier, attests to the accuracy of the quantity of goods loaded on board the carrier's vehicle.”). Plaintiff contends that the shipping of the stadium seats “S.L.C.” relieved him of any “duty to observe the loading” of his trailer. See March 21, 2002, Letter Memorandum of Plaintiff at 4 (quoting testimony of Plaintiff’s expert witness). Plaintiff drove the load to Baltimore. When Plaintiff arrived at his Baltimore destination, he opened the rear doors of his trailer. When Plaintiff did so, one or two of the boxes at the end of the trailer fell out of the trailer and injured Plaintiff. Accordingly, Plaintiff brought this claim for damages under Maryland law. Jurisdiction is based on diversity of citizenship. Plaintiff conceded at the hearing that without the testimony of his expert witness as to causation (set forth below), he cannot prevail in this action. -5- II. ANALYSIS Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to summary judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For purposes of summary judgment, a dispute about a fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and a fact is material if, when applied to the substantive law, it affects the outcome of litigation. Anderson, 477 U.S. at 248. A party seeking summary judgment bears the initial responsibility of informing the court of the basis of its motion and identifying the portions of the opposing party's case which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When considering the motion, the court assumes that all of the non-moving party's evidence is worthy of belief and justifiable inferences are drawn in favor of the non-moving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the non-moving party fails to establish the existence of an essential element -6- of its case, the moving party is entitled to summary judgment as a matter of law. Celotex Corp. 477 U.S. at 322. If the movant demonstrates there is no genuine issue of material fact and that she is entitled to summary judgment as a matter of law, the non-moving party must, in order to withstand the motion for summary judgment, produce sufficient evidence in the form of depositions, affidavits or other documentation which demonstrates that a triable issue of fact exists for trial. Id. at 324. The existence of only a “scintilla of evidence” is not enough to defeat a motion for summary judgment. Instead, the evidentiary materials must show facts from which the finder of fact could reasonably find for the non-moving party. Anderson, 477 U.S. at 252. Under Maryland tort law, a negligence claim requires a showing of the following four elements: “(1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty by the defendant; (3) a legally cognizable causal relationship between the breach of duty and the harm suffered; and (4) damages suffered by the plaintiff.” Yousef v. Trustbank Savings, F.S.B., 81 Md. App. 527, 535-36 (1990), citing Jacques v. First Nat’l Bank of Maryland, 307 Md. 527, 531 (1986). Although the question “whether there is adequate -7- proof of the required elements needed to succeed in a negligence action is [generally] a question of fact to be determined by the fact finder, . . . the existence of a legal duty is a question of law to be decided by the court.” Valentine v. On Target, Inc., 353 Md. 544, 549 (1999)(emphasis added); Rosenblatt v. Exxon, 335 Md. 58, 76 (1994)(same). Contributory negligence, "that degree of reasonable and ordinary care that a plaintiff fails to undertake in the face of an appreciable risk which cooperates with the defendant's negligence in bringing about the plaintiff's harm," Bd. of County Comm'rs of Garrett County v. Bell Atlantic-Maryland, Inc., 346 Md. 160, 180 (1997), is a complete bar to recovery. Id. Defendant argues, inter alia, that (1) the summary judgment record establishes that Plaintiff was contributorily negligent as a matter of law, and that (2) because Plaintiff’s expert opinion testimony as to causation was not reliably derived as required by Fed. R. Evid. 702, it is inadmissible. I agree with Defendant. First, to the extent Plaintiff contends that he was not contributorily negligent because the law imposed no duty upon him to exercise reasonable care for his own safety, other than -8- a duty to avoid “open and patent” dangers, or because his load was shipped “S.L.C.,” see, inter alia, Plaintiff’s March 21, 2002, Letter Memorandum at 2 (“Thus, the defendant’s reliance upon [Code of Federal Regulations provisions setting forth the duty of due care owed by a motor carrier/truck driver such as Plaintiff] is a red herring . . . [because] to the extent the [duty of due care imposed on Plaintiff is] not trumped by ‘S.L.C.’ except as to open and patent dangers, [it] has been complied with . . . .”), the court rejects such a contention. To the contrary, as a matter of law, Plaintiff had a duty under Maryland law (and, as a federally-licensed common carrier, under federal law) to exercise reasonable care for his own safety, in conformity with commonsense federal regulations requiring that before starting on his journey he “[a]ssure himself . . . that the . . . commercial motor vehicle’s cargo is properly distributed and adequately secured.” See 49 C.F.R. 393.9 (1994). He failed to conform to these requirements and thereby failed to conform to the requirements of Maryland law. Id. “Undoubtedly, the safety regulations at issue also impose obligations not only upon carriers but upon drivers themselves.” Johnson v. S.O.S. Transport, Inc., 926 F.2d 516, 524 (6th Cir. 1991); and see -9- Franklin Stainless Corp. v. Marlo Transport Corp., 748 F.2d 865, 869 n. 4 (4th Cir. 1984)(quoting with approval jury instruction as follows: "You are told that [the driver] did not comply with these regulations, and you are told further that that is negligence."). Notwithstanding Plaintiff’s expert’s equivocation on this issue, neither the alleged “practice in the industry” nor the “S.L.C.” endorsement on the bill of lading excused Plaintiff from the duty to exercise reasonable care for his own safety. Although a different circumstance is presented where a driver accepts a sealed load, see, e.g., General Electric Co. v. Moretz, 270 F.2d 780 (4th Cir. 1959), there is no dispute in this case that Plaintiff himself sealed the trailer. Thus, his transportation of the cargo at issue here is plainly covered by the federal regulations. Surely, Maryland common law would impose no lesser duty. Accordingly, plaintiff’s decision to ignore the loading process by remaining in his truck, oblivious to the manner and means of Defendant’s loading of the trailer, coupled with his own failure to examine the load bars sufficiently to confirm that they would “adequately secure” the cargo, together with his decision, in the face of his prior omissions, to open the -10- doors of the trailer upon his arrival in Baltimore while standing within the zone of danger created by the possibility (of which he negligently failed to inform himself) of injury from cargo falling out of the trailer, cohered to rise to the level of a cognizable breach of duty--contributory negligence. Moreover, the very same mechanism of proximate cause, whatever it might have been, that would otherwise have justified the imposition of liability upon Defendant for its negligence (if any) would likewise inexorably raise the bar of contributory negligence against Plaintiff. Consequently, if Defendant were indeed negligent and if its negligence was a proximate cause of Plaintiff’s injuries, then, as a matter of law, the very same must be true as to the Plaintiff’s acts and omissions. Defendant is therefore entitled to judgment as a matter of law. Second, I am constrained to agree with Defendant that, even assuming Plaintiff’s expert is qualified by experience to render opinions relevant to the trucking industry, the witness’s causation testimony does not pass muster under Rule 702. See generally Shreve v. Sears, Roebuck & Co., 166 F. Supp. 2d 378 (D. Md. 2001). On the basis of three poor quality photographs taken immediately after the accident and several -11- alleged calculations of “crush factors” and the like in respect to the cardboard packaging materials containing the seating equipment, the witness has essentially wandered into a metaphysical extrapolation as to how and why the load bars became dislodged and why the boxes of seating components managed to be in a position such that, when the doors were opened in Baltimore, one or two of the boxes fell out of the trailer. To be sure, the witness’s reasoning and chain of inferences leading to his causation conclusion may be minimally plausible. Nevertheless, the proffered opinion-- that the corrugated packaging containing the seating equipment was too weak to support their contents and/or similar boxes resting atop them, that the lower boxes on the “pallet-loads” were crushed by the allegedly heavier boxes stacked on top of them, thereby causing the heavier boxes to tumble off the “pallet-loads” and thereby cause the load bars to be dislodged, and thus become ineffective, thereby allowing one or two boxes to fall out of the truck when the doors were opened-- has not been shown to be based on ”sufficient facts or data,” Fed. R. Evid. 702(1), that are “reasonably relied upon by experts in the particular field in forming opinions or -12- inferences upon the subject,” Fed. R. Evid. 703, and thus, Plaintiff has not demonstrated that the expert testimony on causation “is the product of reliable principles and methods.” Fed. R. Evid. 703(2). Contrary to Plaintiff’s assertion, Defendant need not show that Plaintiff’s expert opinion testimony is “bizarre” in order to challenge its admissibility. See Plaintiff’s April 2, 2002, Letter Memorandum at 1. Rather, Defendant need only raise an unanswered question as to the reliability of the methods employed to derive such testimony. Defendant has done so here. III. CONCLUSION As a matter of law, Plaintiff’s claim is barred by his own contributory negligence. Moreover, in view of the manifest unreliability of the Plaintiff’s expert opinion testimony that inadequate packaging material was a proximate cause of the unintended escape of the trailer contents which injured plaintiff, that testimony is excluded. That evidence having been excluded as inadmissible under Fed. R. Evid. 702, Plaintiff, as he conceded at the hearing, cannot establish an element of his negligence claim. Accordingly, Plaintiff’s motion for summary judgment shall be denied and Defendant's motion for summary judgment shall be granted. A separate -13- order follows. Filed: April 10, 2002 Andre M. Davis United States District Judge IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND LAWRENCE V. HARDESTY, SR., : Plaintiff : : : v. : Civil Action AMD 01-1130 : : AMERICAN SEATING CO., : Defendant : ORDER In accordance with the foregoing Memorandum, it is this 10th day of April, 2002, by the United States District Court for the District of Maryland, hereby ORDERED: 1. That Plaintiff’s Motion for Summary Judgment is DENIED and Defendant's Motion for Summary Judgment is GRANTED and JUDGMENT IS ENTERED IN FAVOR OF DEFENDANT AND AGAINST PLAINTIFF; 2. That this action is hereby CLOSED; and 3. That the Clerk shall transmit copies of the foregoing memorandum and this order to all counsel. Andre M. Davis United States District Judge

Baltimore police officers face repeated misconduct lawsuits

City Police Officers - Multiple Misconduct Lawsuits

In a Six month long investigation, the Baltimore sun has uncovered disturbing details of police brutality in the Baltimore city Police force. Last week, I blogged about the millions paid out in settlement by the city.  In a another expose, the Sun writes that some officers have had as many as three allegations of misconduct resulting in significant injuries to civilians. For more go to Baltimore Sun.

Baltimore City- $5.7 Million in Claims Unlawful Use of Force

Police Brutality Lawyer - Police Misconduct

According to a Baltimore Sun report, Baltimore City has paid $5.7 million in unlawful use of force claims brought against police officers since 2011. In an interesting note, the article states that, "Department officials said some officers were exonerated in internal force investigations, even though jurors and the city awarded thousands of dollars to battered residents in those incidents." The above comments is in line with another chilling revelation which quotes the Baltimore City Police Strategic Plan 2013: "Discipline has not always been a priority for the Baltimore Police Department. " The victims identified on the story show that no one is safe. A 87 year old grandmother and a pregnant women were two of the victims of police brutality identified in the story. If true the treatment of the grandmother in the story is jaw dropping. Another woman was shot in the stomach. The victims injuries go beyond the physical injuries from  gun shots, broken bones to lacerations. They also claim to live with the fear of the police. Some victims and witness declined to discuss the case in fear of retaliation. It is no surprise that the police officers and the victims have startlingly different accounts of what happened in each incident. In one case, the office claimed that he did not remember the incident at all. In another, the description of the victims actions suggest she was aggressive toward the police and resisted arrest. Injuries were also minimized in the police reports.

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