Cador v. Yes Organic Mkt. Hyattsville Inc.

253 Md.App. 628

269 A.3d 353

Jacqueline CADOR

v.YES ORGANIC MARKET HYATTSVILLE INC.

No. 0898, Sept. Term, 2020

Court of Special Appeals of Maryland.

February 1, 2022

Argued by: Bernard A. Solnik (Law Office of Bernard Solnik, LLC, Bethesda, MD), all on the brief, for Appellant.

Argued by: Jennifer L. Matzye (Law Offices of Joseph M. Jagielski, Hunt Valley, MD), all on the brief, for Appellee.

Panel: Graeff, Shaw, Charles E. Moylan, Jr., Senior Judge, Specially Assigned, JJ.

Moylan, J.

The subject is contributory negligence. The specific focus is on the difference, qualitative rather than quantitative, between the evidentiary predicate that requires a judicial ruling of contributory negligence, as a matter of law, and the evidentiary predicate that permits a jury finding of contributory negligence, as a matter of fact. This difference is not simply one between more or less of the same thing. Quantity is not the issue. Nor is the difference one between an adequate case of contributory negligence and a stronger, perhaps much stronger, case. The difference is rather between a case of contributory negligence built on disputed evidence and one built on undisputed evidence. Quantity is not the differentiating factor. Even a mountain of evidence may be disputed; a molehill of evidence may be undisputed. The difference is that the resolution of the dispute, large or small, requires factfinding. Undisputed evidence, by contrast, requires no factfinding.

The Role Of Inference;

The Risk Of Non-Persuasion

A judge, as legal referee, does not engage in factfinding. In cases of undisputed evidence, the judge need not do so, for there are no disputes to be resolved. For some rulings as a matter of law, moreover, even apparent disputes may sometimes be finessed, as the judge accepts as fact that version of the evidence most favorable to the non-moving party. Such a version of the evidence is something not in dispute. The evidence, as it indisputably exists or is presumed to exist, either is or is not contributory negligence, as a matter of law. The judge, therefore, may make a legal decision as to it by way of Summary Judgment or a judgment in the course of the trial or a judgment N.O.V. without engaging in factfinding. Appellate review, moreover, is not deferential. Where things are determined as a matter of law, the appellate court will make its own legal determination, de novo.

In the case of disputed evidence, on the other hand, factfinders play a very different role. Factfinders exist for the very purpose of resolving disputes. Unlike the judge-as-legal-referee, the factfinders have wider discretionary options. Appellate review, moreover, will be very deferential to almost anything that the factfinders decide, just as it will be deferential to the trial judge's legal decision to let issues go to the factfinders. The factfinders may be persuaded to find in one direction or in the other by the parties to the case. That burden of persuasion, to whomever it belongs, incurs the risk of non-persuasion.

Figuring prominently in the exercise of persuasion, along with such factors as the credibility of witnesses and the logical cogency of the competing propositions, is the phenomenon of drawing inferences. The factfinder may be persuaded that from the existence of Fact A, one may infer the existence of Fact B, the ultimate fact itself. It is here, however, that the risk of non-persuasion looms large. Inferences may be drawn, but they may also be declined. Inferences may be contradicted by counter-inferences. This inferential swirl and counter-swirl is a world wherein the judge-as-legal-referee does not operate. The judge's rulings are existential; the jury's findings, on the other hand, may be inferential.

For the judge, it is not a case of "may be;" it is a case of "is" or "is not." The jury is not so limited.

In the case before us, the sole question is, "Was the existence of contributory negligence, yea or nay, a question of law for the judge or a question of fact for the jury?" The question might also be phrased, "Was there a genuine dispute as to a material fact?" Was it a case for the judge? Or was it a case for the jury?

The Case At Hand

At approximately 9:00 P.M. on September 21, 2016, the plaintiff-appellant, Mrs. Jacqueline Cador (the plaintiff), along with her husband and her daughter, went shopping in a grocery store owned and operated by the defendant-appellee, Yes Organic Market Hyattsville Inc. (the Market). The Market was still open, but it was approaching closing time. While shopping, the plaintiff slipped and fell on a portion of the floor that had recently been mopped by an employee of the Market. The plaintiff required partial knee replacement surgery.

In the Circuit Court for Prince George's County, the plaintiff sued the Market for negligence. The Market filed a motion for Summary Judgment based on the affirmative defenses of both 1) contributory negligence and 2) the assumption of risk. On October 6, 2020, the trial judge granted the motion for Summary Judgment in favor of the Market on both grounds. The plaintiff has filed the present appeal.

The motion for Summary Judgment was filed pursuant to Maryland Rule of Procedure 2-501(f), which provides in pertinent part:

The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.

(Emphasis supplied.)

What Is A "Dispute"?

A brief word is in order about the "genuine dispute" as to a "material fact" that will defeat Summary Judgment. The notion of a "dispute" is not limited to a testimonial dispute about the very physical existence of a predicate fact in order to launch a possible inference. It may also be a "dispute" about the inferential process itself. Even from an undisputed predicate fact, shall a permissible inference be drawn or shall it be declined? Which of several possibly contradictory inferences shall be drawn? There are obviously critically important "disputes" about which inferences to draw or to decline. Such "disputes", as Rule 2-501(f) clearly states, are not matters to be resolved by Summary Judgment.

Standard Of Review

In Mathews v. Cassidy Turley Maryland, Inc., 435 Md. 584, 598, 80 A.3d 269 (2013), Judge McDonald laid out for the Court of Appeals the standard of review when the appellate court examines such a grant of Summary Judgment:

Under the Maryland Rules, a circuit court may grant summary judgment if there is no dispute as to material fact and the moving party is entitled to judgment as a matter of law.

Maryland Rule 2-501(f). The court is to consider the record in the light most favorable to the non-moving party and consider any reasonable inferences that may be drawn from the undisputed facts against the moving party. Because the circuit court's decision turns on a question of law, not a dispute of fact, an appellate court is to review whether the circuit court was legally correct in awarding summary judgment without according any special deference to the circuit court's conclusions.

(Emphasis supplied.) See also Ross v. Housing Authority of Baltimore City, 430 Md. 648, 666-67, 63 A.3d 1 (2013) ; Six Flags America, L.P. v. Gonzalez-Perdomo, 248 Md. App. 569, 580, 242 A.3d 1143 (2020).

Two Ostensible Beacons Of Alarm

The contributory negligence issue before us is a limited one. The Market points to no direct conduct on the part of the plaintiff that would, in and of itself, have constituted either contributory negligence or the assumption of risk. The Market points rather to two physical objects in the grocery that were at one time or another within the range of vision of the plaintiff before she fell. The Market argues that the plaintiff must be deemed to have seen one or both of those admonitory beacons and that she was thereby put on notice that the flooring in the Market was dangerous. The Market's argument is that the inference was compelling that the plaintiff had been put on notice and that heightened caution on her part was, therefore, necessary and that she negligently failed to exercise that heightened caution.

In granting Summary Judgment in favor of the Market, the trial judge made the assumption that, in exposing its customers to floors that were wet from recent mopping, the Market had, indeed, been negligent. The trial judge nevertheless bought the further argument made by the Market:

I think that the unrefuted, undisputed evidence – and admitted that your client said that there was a bucket afterwards. She said she didn't notice it at the time, but you can see her walking directly past it; I think that this is a quintessential example of both assumption of the risk and contributory negligence.

So I think I have to – I don't have any choice but to grant the motion for summary judgment on those grounds, not on the other ones...but on the grounds of assumption of the risk and contributory negligence.

(Emphasis supplied.)

The Fate Of Contributory Negligence Sealed The Fate Of Assumption Of Risk

This argument before us can be further limited in one important respect. It will be convenient to confine our analysis to contributory negligence alone and not to burden the analysis with a further consideration of the assumption of risk. Both affirmative defenses, to prevail, would require us to conclude that the plaintiff must have seen the warning signs and must, therefore, have been consciously aware of the danger of walking incautiously in the store. Assumption of risk, however, would require us to go one step further and to conclude that the plaintiff, aware of the risk, made the conscious and deliberate decision to ignore that risk. That goes one additional step beyond mere negligence. If our decision should be in favor of the plaintiff on the subject of contributory negligence, however, as indeed it will be in this case, that decision necessarily would...