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Maryland Federal District Court Grants Defendant’s Motion for Summary Judgment and Motion to Exclude Expert Witness in Grocery Store Negligence Action

Joann Sweeney v. SuperValu Inc.
Civil No. CCB-13-1804 (May 15, 2014)

by Jhanelle A. Graham, Associate
Semmes, Bowen & Semmes (

Available at

In Joann Sweeney v. SuperValu Inc., Plaintiff Joann Sweeney brought an action against Defendant, SuperValu Inc. (d/b/a Shoppers Food & Pharmacy) (“Shoppers”) seeking damages for injuries she suffered after falling in a Shoppers grocery store in Baltimore County, Maryland. Before the Maryland federal district court was Shoppers’s motion for summary judgment, as well as its motion to exclude the testimony of Sweeney’s expert, Barry Erik Parsons. After reviewing the facts and relevant law, the Honorable District Judge Catherine C. Blake granted both of Shoppers’s motions.

The facts of the case are as follows: On June 23, 2011, Sweeney and her daughter entered the Shoppers store, when Sweeney slipped on a clear, small plastic tag in an aisle on the floor. As a result of the fall, she allegedly sustained an injury to her right shoulder. Richard Lucas, the store manager, spoke with Sweeney after the fall and filled out an incident report. He later testified at his deposition that he had walked through every aisle of the store just fifteen minutes prior to Sweeney’s fall and that he did not recall seeing a tag on the floor. The question before the district court was, therefore, whether there was a sufficient basis upon which a reasonable jury could conclude that Shoppers’s negligence caused the plastic tag at issue to fall. To support Sweeney’s argument that Shoppers had either actual or constructive knowledge because the plastic tags had a “known propensity to fall from the shelf,” Sweeney submitted the expert testimony of Parsons, who opined that: (1) “[t]he plastic sign clip on the floor created a dangerous condition that caused [] Sweeney to slip and fall,” (2) “Shoppers selected a dangerous shelf clip system that made it foreseeable that clips would be knocked off of shelves onto the floor during the normal course of shopping activities,” (3) “Shoppers’ failure to reasonably inspect and maintain the area where Sweeney slipped violated the standard of care and resulted in the sign clip creating a dangerous condition and caused Sweeney to slip and become injured,” and (4) “[]Sweeney was acting in a reasonable manner for a shopper in a retail environment and her actions were not the cause of her fall.” Shoppers moved for summary judgment and to exclude Parsons’ testimony.

The district court began its analysis by articulating the applicable legal standard under Federal Rule of Civil Procedure 56(a), which provides that summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The court stated that whether a fact is material depends upon the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247–48 (1986). Accordingly, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Id. Further, the district court explained that “[a] party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d514, 522 (4th Cir. 2003) (alteration in original) (quoting FED. R. CIV. P. 56(e)). Additionally, the court must view the evidence in the light most favorable to the nonmovant and draw all justifiable inferences in his favor. Scott v. Harris, 550 U.S. 372, 378 (2007) (citation omitted). Importantly, according to the district court, the court must not yield its obligation “to prevent factually unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526.

The Maryland district court then addressed choice-of-law, stating that a court sitting in a diversity case must apply the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941). Despite a modern trend favoring alternative approaches, the court noted that “Maryland adheres to the lex loci delicti rule” to determine the applicable law in tort actions. Thus, because the alleged tort took place in Baltimore County, Maryland, the district court held that Maryland law governed Sweeney’s negligence claim. In reviewing the merits of Sweeney’s negligence claim, the district court stated that, in Maryland, “the proprietor of a store owes a duty to . . . [an invitee] to exercise ordinary care to keep the premises in a reasonably safe condition and will be liable for injuries sustained in consequence of a failure to do so.” Maans v. Giant of Md., L.L.C., 871 A.2d 627,631 (Md. App. 2005). To prove that a proprietor violated his duty, “[t]he evidence 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 to warn the invitee.’” Rehn v. Westfield Am., 837 A.2d 981, 984 (Md. App. 2003). Further, “there is no liability for harm resulting from conditions . . . which the occupier neither knew about nor could have discovered with reasonable care.” Tennant v. Shoppers Food Warehouse Md. Corp., 693 A.2d 370, 375 (Md. App. 1997).

Reviewing the facts of the case, the district court reiterated that Sweeney bore the burden of demonstrating that the store proprietor had notice of the condition. Here, however, the district court found that Sweeney offered no facts from which a reasonable jury could conclude that Shoppers’ negligence caused the plastic tag at issue to fall. Rather, she admitted that the plastic tag may have fallen because of the actions of another customer. Additionally, the court could not conclude that Shoppers had either actual or constructive knowledge that the plastic tags had a “known propensity to fall from the shelf.” Even assuming that this testimony required an expert, the court held that Parsons lacked the necessary qualifications to be an expert and did not have a sufficient factual basis for his opinions. See Fed. R. Evid. 702. As for his qualifications, Parsons has a two-(2)-year degree from a junior college and managed various stores and food retail operations, but he did not hold any professional licenses, had never published in the field of floor care maintenance or retail floor maintenance, and did not sit on any national, state, or local safety committees. Additionally, Parsons did not interview any witnesses or parties in this case and made just a minute-long visit to the Shoppers store, during which time he did not talk to any Shoppers employees or take any measurements or pictures. The court found that Parsons simply did not know how long the plastic tag was on the floor or whether any Shoppers employees saw it there, and Sweeney proffered no evidence to suggest that anyone saw the tag before she slipped on it. Rather, Lucas testified that he had inspected all the aisles just fifteen (15) minutes before Sweeney fell, and that he did not recall seeing a tag on the ground. As stated by the Court of Appeals of Maryland, “it would be unreasonable to hold that [there is a] duty to conduct a continuous inspection tour of the store.” Moulden, 210 A.2d at 725–26.

In sum, because there was no evidence from which a reasonable jury could conclude that Shoppers had notice of the plastic tag on which Sweeney slipped, there was no question for the jury on Sweeney’s negligence claim, and Shoppers was entitled to judgment as a matter of law.