Kelly Bertolazzi v. Baltimore Hotel Corporation, 695 F. App'x 693

Plaintiff Kelly Bertolazzi slipped/was injured after stepping onto an escalator at a Hilton hotel that was inoperable and not cordoned off or otherwise marked as out of service.
Bertolazzi testified she did not notice the escalator was not working until she stepped on it, saw no warning signs, and could not disembark because she was amid a group of people.
The hotel’s records/evidence indicated the hotel knew about the inoperable escalator, had previously cordoned off a different inoperable escalator, and its maintenance company recommended stationing an employee to warn guests until cordoning was possible.
Defendants moved for summary judgment on premises liability and assumption-of-risk/contributory negligence grounds; the district court granted summary judgment for defendants.
The Fourth Circuit reviewed de novo, applied Maryland substantive law, and concluded there were genuine factual disputes that precluded summary judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an inoperable escalator can be a "dangerous condition" for premises liability	Escalator was dangerous: known inoperable, uncordoned, no warnings, more hazardous than stairs	An inoperable escalator is not necessarily a dangerous condition as a matter of law; no presumption of negligence	Court predicted Maryland would treat the escalator as a dangerous condition on these facts and found a jury could so conclude
Whether proprietor had knowledge or created the dangerous condition	Hilton knew (records/maintenance recommendations) and failed to cordon or warn	No actionable knowledge or creation of danger warranting liability	Court held a reasonable jury could find actual or constructive knowledge and causation by the proprietor
Whether Bertolazzi assumed the risk of injury	She did not know the escalator was inoperable, saw no warnings, and could not leave the escalator when she noticed	Plaintiff should have appreciated the risk or noticed the condition	Court held assumption of risk is a jury question here; summary judgment inappropriate because there is no undisputed evidence she knew and appreciated the specific risk
Whether contributory negligence bars recovery as a matter of law	Plaintiff lacked awareness; could not avoid harm	Plaintiff acted negligently in using the escalator	Court found contributory negligence not established as a matter of law and vacated summary judgment

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562 (4th Cir.) (standard of review for summary judgment)
Dash v. Mayweather, 731 F.3d 303 (4th Cir.) (nonmoving party cannot survive on conclusory allegations)
Stahle v. CTS Corp., 817 F.3d 96 (4th Cir.) (apply forum state substantive law in diversity cases)
Giant Food, Inc. v. Mitchell, 640 A.2d 1134 (Md. 1994) (storekeepers owe invitees ordinary care; no presumption of negligence)
Maans v. Giant of Md., L.L.C., 871 A.2d 627 (Md. Ct. Spec. App.) (plaintiff must show dangerous condition and proprietor's knowledge)
Troxel v. Iguana Cantina, LLC, 29 A.3d 1038 (Md. Ct. Spec. App.) (causation standard in premises liability)
Thomas v. Panco Mgmt. of Md., LLC, 31 A.3d 583 (Md.) (assumption of risk requires actual knowledge and appreciation of the specific danger)
Kilgore v. Carson Pirie Holdings, Inc., [citation="205 F. App'x 367"] (6th Cir.) (escalator inoperability discussed in premises liability context)
Menish v. Polinger Co., 356 A.2d 233 (Md.) (contributory negligence principles)
Diffendal v. Kash & Karry Serv. Corp., 536 A.2d 1175 (Md. Ct. Spec. App.) (contributory negligence in premises cases)