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Trial Court Properly Granted Summary Judgment on the Grounds that Plaintiff Produced No Admissible Evidence of Defendants’ Actual or Constructive Knowledge of a Slip-and-Fall Hazard

Zilichikhis v. Montgomery County, Maryland
No. 388 (Court of Special Appeals of Maryland, May 28, 2015)
by Caroline E. Willsey
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.mdcourts.gov/opinions/cosa/2015/0388s14.pdf

In Zilichikhis v. Montgomery County, Maryland, No. 388 (Court of Special Appeals of Maryland, May 28, 2015), Plaintiff slipped and fell on a greasy substance in a parking garage owned and operated by Montgomery County, Maryland. Plaintiff eventually developed a subdural hematoma that required emergency surgery. Plaintiff alleged that he continues to suffer various impairments as a result of the traumatic brain injury he sustained when he fell.

Plaintiff, along with his wife, filed a complaint in the Circuit Court for Montgomery County, Maryland, alleging that he was entitled to recover for his injuries and loss of consortium. By the time the Motion for Summary Judgment was filed, the case involved only four (4) Defendants – Montgomery County Maryland, the owner and operator of the garage; the Montgomery County Department of Transportation, the agency charged with administering county-owned parking spaces; Penn Parking, Inc., the management company for the garage; and Colossal Contractors, Inc., a company that performs cleaning services for the garage.

The County filed a Motion for Summary Judgment, arguing in part, that Plaintiffs provided no evidence of Defendants’ actual or constructive knowledge of the dangerous condition in time to remedy the condition before Plaintiff’s fall. Plaintiffs filed an Opposition to Summary Judgment, arguing that Defendants need not have knowledge of the particular oil spill on which Plaintiff fell; rather, Defendants only need be on notice of the garage’s dangerous condition in general.

In support of Plaintiffs’ claim that Defendants had the requisite knowledge of the slip-and-fall hazard in their garage, Plaintiffs attempted to submit the following: (1) various photographs depicting dark stains on a walkway inside the garage; (2) an affidavit from Plaintiffs’ daughter, claiming that the garage was always dirty and often slippery, particularly on the night Plaintiff was injured when she took photographs of the garage; and (3) an expert affidavit opining that the oil spill on the walkway had been in the garage for more than 36 to 48 hours.

The circuit court granted each of Defendants’ Motions for Summary Judgment, concluding that Plaintiff had no evidence that the hazardous condition existed for any significant period of time before the fall. The circuit court also rejected the photographs Plaintiffs produced because they were inconsistent with the location of the oil spill that Plaintiffs described in their depositions.

The appeal in this case concerned, in part, three (3) findings made by the circuit court in its decision to grant summary judgment.

The circuit court correctly determined that there was no factual dispute as to where Plaintiff fell, finding that Plaintiff fell in a parking spot, as opposed to on the walking path depicted in photographs submitted into evidence. Plaintiffs unjustifiably argued that the location of the oil spill was material to Defendants’ constructive knowledge of the hazard, under a theory that the mere existence of the oil spill on a walkway led to the inference that patrons would have reported the spill, thus putting Defendants on notice. Plaintiffs’ Answers to Interrogatories, which at one point stated that Plaintiff fell on a walkway, were insufficient to generate a genuine dispute of fact as to where Plaintiff fell because the statements were made to the best of Plaintiff’s knowledge and belief, not based on personal knowledge. An affirmative showing that the statements in the Interrogatories were made under oath, on the basis of personal knowledge, and by a competent witness, were correctly considered to be a prerequisite for Plaintiffs to generate a genuine dispute of fact.

Similarly, the circuit court properly excluded the photographs and expert testimony submitted by Plaintiffs. Given the absence of testimony to establish that the area depicted in the photographs was the actual site of the accident, Plaintiffs did not establish a proper foundation for admitting the photographs as evidence of the location of Plaintiff’s fall. Once the photographs were excluded, the expert’s opinion was made irrelevant by the fact that it pertained to facts not in evidence.

Having determined that there was no genuine dispute of material fact, the circuit court properly determined that there was insufficient evidence to establish Defendants’ constructive knowledge of the hazard in the garage. To sustain a cause of action in a premises liability case, Plaintiffs must prove (1) Defendants’ actual or constructive knowledge of the dangerous condition, and (2) that the knowledge was gained in sufficient time to give Defendants the opportunity to remove the hazard or warn persons on the premises. An entity charged with failing to maintain safe premises is properly granted summary judgment if either of these two requirements are not met. The circuit court correctly determined that the mere fact that Plaintiff slipped and fell on an oil spill in a parking spot inside the garage does not meet either of the two requirements regarding Defendants’ knowledge. The circuit court also properly rejected Plaintiffs’ contention that an inference of constructive notice may be made merely because the owner of the premises failed to use due care in inspecting for dangerous conditions.

Accordingly, the appellate court upheld the circuit court’s grant of summary judgment.