MD's Court of Special Appeals says slip-and-fall rule still stands

Maryland's second-highest court has declined to add the state to the list of 21 jurisdictions that ease the plaintiff's burden of proof in some slip-and-fall cases.

Under the mode-of-operation rule, a plaintiff need not show that a store owner was on notice of a dangerous condition if the proprietor could reasonably anticipate that hazardous conditions would regularly arise in the ordinary course of business.

Last week, the Court of Special Appeals emphatically rejected this alternative rule, finding it to be at odds with a long history of case law in Maryland.

Doing away with the requirement that the invitee must prove how long the dangerous condition existed pre-injury is the functional equivalent of doing away with the requirement that the plaintiff prove that the defendant's negligence was the proximate cause of the plaintiff's injury, Judge James P. Salmon wrote for the appellate court.

Christopher R. Dunn, attorney for appellee Giant of Maryland LLC, praised the decision yesterday.It's a very strong opinion for property owners, Dunn said. It clarifies that in order to create a prima facie case, the plaintiff has to establish 'time-on-the-floor evidence' of the defective condition.

The decision affirms the dismissal of a lawsuit brought by Chandra Maans against Giant of Maryland to recover for injuries she sustained in a Harford County grocery store in 1999.

The Harford County Circuit Court granted Giant's motion for judgment at the close of the plaintiff's case, finding that Maans did not present sufficient evidence to raise a question as to whether Giant had actual or constructive knowledge of an alleged water spill.

On appeal, Maans proposed theories under which a jury could have found that Giant had knowledge of the spill.

The Court of Special Appeals was not convinced, citing the oft- repeated burden of proof for slip-and-fall plaintiffs, which it summarized in 2003 in Rehn v. Westfield American.

Rehn reaffirmed that to put a slip-and-fall case before the jury, the plaintiff must show not only that a dangerous condition existed, but also that the proprietor 'had actual or constructive knowledge of it, and that that knowledge was gained in sufficient time to give the owner the opportunity to remove it or warn the invitee.'

While the appellate court found that Maans did raise a question as to whether the water spill existed, she produced not one scintilla of evidence suggesting Giant had notice of it or sufficient time to fix it.

Maans was shopping with her niece when she allegedly slipped on a transparent pool of water near the checkout area and injured her back. She was six-and-one-half months pregnant at the time.

She filed suit against Giant, claiming it breached its duty of care owed to her as an invitee by negligently allowing water to remain on the floor.

Though she admitted at trial that she never saw or felt any water, she testified that an assistant store manager ordered another employee to get up all the water off the floor and warned attending paramedics to be careful not to slip on it.

The store manager testified that she investigated the accident and discovered only [a] couple of drops of soda on the floor, attributable to a leak from a nearby shopper's cart. She further stated that Giant's policy called for all employees to look for spills and hazards in the store and to clean up any such hazard promptly.

Two other employees corroborated the manager's testimony, adding that the floors were always cleaned in the morning prior to opening and then cleaned throughout the day as needed.

Finding that Maans produced no evidence that Giant breached its duty of care, the circuit court granted Giant's motion for judgment at the close of Maans' case.

The Court of Special Appeals affirmed, rejecting Maans' argument that the court should adopt the mode of operation rule.

Maans' attorney did not return a call for comment before press time yesterday.

WHAT THE COURT HELD

Case:

Maans v. Giant of Maryland LLC, CSA No. 161, Sept. Term 2004. Reported. Opinion by Salmon, J. Filed April 4, 2005.

Issue:

Did the lower court err in granting a defense motion for judgment at the close of plaintiff's slip-and-fall case, where the plaintiff failed to show how long the alleged dangerous condition existed prior to her fall?

Holding:

No; affirmed. The mode-of-operation rule advanced by plaintiff/ appellant, under which a plaintiff need not show that a store owner was on notice of a dangerous condition if the proprietor could reasonably anticipate that hazardous conditions would regularly arise in the ordinary course of business, is at odds with a long history of case law in Maryland.

Counsel:

Ann Wittik-Bravmann for appellant; Christopher R. Dunn for appellee.

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