850 F. Supp. 369 | D. Maryland | 1994
OPINION
Plaintiff NORBERT RONK III sues Defendant THE CORNER KICK, INC. and its individual owners, alleging that he was injured while playing racquetball at a court owned and operated by Defendants. Plaintiff says he slipped on water which Defendants negligently allowed to collect on the floor of the court; that they had actual notice of the condition which caused the fall in sufficient time to permit it to be corrected; and that they failed to inspect the court to make it safe for business invitees or to warn of the condition which caused the fall.
Defendants, citing a number of grounds, have filed a Motion for Summary Judgment which Plaintiff has opposed. Both sides rely on supporting affidavits.
The pivotal and ultimately dispositive questions in this case are whether Plaintiff has raised a genuine issue of material fact as to either causation or as to actual or constructive notice. Finding that Plaintiff has
I.
In the early afternoon of January 25, 1990, Plaintiff was playing racquetball at The Corner Kick, Inc., a multi-sports facility in Gaithersburg. After playing for a period of time, he alleges he slipped on water which had accumulated on the floor in the front left corner of the court, causing him to slide forward into the front wall and dislocate his right ankle. He contends this occurred through no fault of his own.
In his deposition, Plaintiff indicated that the water covered an area 3 to 4 feet long and was 6 to 8 inches wide. Neither Plaintiff nor any eyewitness, however, is able to say how the water came to be located on the floor. Instead, Plaintiff relies upon expert testimony (put forth some four years after the fact) suggesting that a negligently maintained heating/air conditioning/ventilation (HVAC) system was the probable cause of the floor’s wetness. On the issue of notice, Plaintiff adduces one witness who states that he observed moisture building up on the walls or floor of the court “maybe 3 or 4 times ... since 1987.”
II.
Federal Rule of Civil Procedure 56 governs the matter of summary judgment in Federal Court.
III.
Although Defendants dispute the matter, the Court will assume for present purposes that Plaintiff was a business invitee of Defendants.
In that regard, under the law of Maryland a business proprietor has a duty to patrons to exercise ordinary care to keep his premises in reasonably safe condition. Moulden v. Greenbelt Consumer Services, Inc., 239 Md. 229, 210 A.2d 724 (1965). The mere existence of a defect or danger is insufficient to establish liability, Prosser and Keeton, The Law of Torts, Section 61 (5th ed.), unless the proprietor either created the dangerous condition or had actual or constructive knowledge of its existence. Moulden, 210 A.2d 724; Lexington Market Authority v. Zappala, 233 Md. 444, 197 A.2d 147 (1964); Montgometry Ward v. Hairston, 196 Md. 595, 78 A.2d 190 (1951). On either theory Plaintiffs case, quite simply, never proceeds beyond gossamer speculation and airy inference.
Plaintiff posits first that Defendants created the wet floor because they failed to properly maintain the HVAC system, which is cited as the source of the wet spot. But
In the absence of evidence that the condition causing injury to a business invitee was created by the act or omissions of the employees of a defendant, liability depends upon proof that defendant knew or ought to have known that the condition created by an intervening agency existed. Montgomery Ward, 78 A.2d 190. But Plaintiffs case falters in this respect as well. No one ever called a wet spot to Defendants’ attention on a previous occasion. Defendants’ employees, on the other hand, state without contradiction that they had no actual notice of a wet spot, despite frequent and periodic inspections. As far as actual notice is concerned, that is the end of the matter.
Plaintiffs theory of constructive notice fares no better. What he must prove is that Defendants had constructive notice of the wet spot and its capacity for danger on the day in question. But Plaintiff cites no evidence as to how long the particular offending wet spot was on the floor, such that Defendants should have been on notice on January 25, 1990. What he proffers instead is evidence that two individuals observed moisture on the walls and floor of the racquetball court on perhaps five-six-or seven occasions over approximately a three-year period prior to the accident.
Plaintiffs evidence of Defendants’ negligence is, in sum, no more than mere surmise, which is insufficient as a matter of law to raise a triable issue. Moulden, 210 A.2d 724. The Court accordingly grants Defendants’ Motion for Summary Judgment.
ORDER
Upon consideration of Defendants’ Motion for Summary Judgment and Plaintiffs Opposition thereto, it is this 26th day of April, 1994
ORDERED that Defendants’ Motion be and the same is hereby GRANTED; and it is further
ORDERED that final judgment is entered in favor of all Defendants and against the Plaintiff, costs to be paid by Plaintiff.
. It is not clear whether "since 1987” is intended to mean between 1987 and January 1990, when the accident occurred, or between 1987 and some time after January 1993, when this suit was filed and the witness deposed.
. Both Plaintiff and Defendants cite extensively to Maryland's state Rules of Procedure cases pertaining to summary judgments. While State law applies to the substantive issues in a diversity case such as this, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the Federal Rules of Procedure govern all matters of procedure including summary judgment. Fed.R.Civ.Proc. 1; Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965).
.The dispute over Plaintiff’s status arises because, on the day of the accident, according to Defendants, Plaintiff may have overstayed his allotted time on the court.
. See n. 1.