Cheskis v. Safeway Inc.

TAMMY CHESKIS, Plaintiff, v. SAFEWAY, INC., et al. Defendants.

No. DLB-19-1734

United States District Court, D. Maryland

August 27, 2021

MEMORANDUM OPINION AND ORDER

DEBORAH L. BOARDMAN UNITED STATES DISTRICT JUDGE

In this negligence action, plaintiff Tammy Cheskis alleges that Safeway, Inc. (“Safeway”) is liable for damages resulting from injuries she sustained after she fell while walking through the aisles of a Safeway supermarket. ECF 3. Pending is Safeway's motion for summary judgment. ECF 53. The parties fully briefed the motion. ECF 53-1, 54, 54-1 & 55. A hearing is not necessary. See Loc. R 105.6. Safeway had a non-delegable duty to maintain the premises in a reasonable and safe condition for its invitee Ms. Cheskis. Based on the record evidence before the Court there is a genuine dispute of material fact as to whether Safeway breached that duty. Accordingly, Safeway's motion for summary judgment is denied.

I. Background

The Court views the following facts and the reasonable inferences drawn from them in the light most favorable to Ms. Cheskis. See Perkins v. Int'l Paper Co., 936 F.3d 196, 205 (4th Cir. 2019). Safeway owns and operates a supermarket located at 1451 South Ritchie Highway in Arnold, Maryland. Def.'s Mot. ¶ 2, ECF 53; Pl.'s Opp'n 1 & 10 n.9, ECF 54-1. Safeway contracted with non-party Ultra Care to wax and clean the store's floors, and Ultra Care, in turn, contracted with third-party defendant PWR Building Services (“PWR”) to perform the work. ECF 53 ¶ 2; ECF 54-1, at 10 n.9. It is undisputed that PWR is an independent contractor. Def.'s Mem. 5, ECF 53-1; ECF 54-1, at 10 n.9.

Safeway's floors are waxed approximately every three months. Haskell Dep. 28:3-6, ECF 54-7. On April 24, 2017, PWR waxed the floors. Khmaladze Dep. 9:3 - 10:3, ECF 54-3; ECF 53 ¶ 3; ECF 54-1, at 2-3. The waxing began at approximately midnight and finished around 4:00 a.m. ECF 53 ¶ 3; ECF 54-1, at 2-3. At that time, Mr. James Taylor, a Safeway night manager, inspected the floors and signed off that the waxing was complete. ECF 53 ¶ 3; ECF 53-1, at 3; ECF 54-1, at 6; Taylor Dep. 13:11 - 14:21, ECF 53-6. A couple hours later, from approximately 6:36 a.m. to 6:56 a.m., PWR employee Eric Francisco Godoy Castenada (“Mr. Godoy”) washed and scrubbed the Safeway floors as he routinely did at that location. ECF 53 ¶ 4; ECF 53-1, at 5; ECF 54-1, at 3 & 4. A Safeway supervisor did not typically inspect the floors or sign off on the completion of the work after they were cleaned and scrubbed, as was the case after waxing. ECF 53-6, at 18:1-20.

Almost immediately after PWR finished washing and scrubbing the floors, at 6:57:37 a.m., Ms. Cheskis slipped and fell while she was walking through the aisles of the Safeway. ECF 53-1, at 1 & 5; ECF 54-1, at 2 & 6; Cheskis Dep. 30:5-7, ECF 54-2. Video security footage from just before the fall shows PWR employee Mr. Godoy pushing the scrubber up the right side of an aisle. ECF 53-10. Less than two minutes later, Ms. Cheskis crossed the aisle from left to right and fell as she reached the right side of the aisle. Id.; see ECF 53-1, at 7 & 8; ECF 54-1, at 3. After she fell, Ms. Cheskis noticed that the floor was “really shiny.” ECF 54-2, at 27:19 - 28:15, 34:1-10. Safeway did not notify customers that the floor recently had been waxed. ECF 54-7, at 32:5-9.

Ms. Cheskis testified that when she entered the store, there was no warning sign that the floor recently had been waxed or scrubbed. ECF 54-2, at 45:11-13 & 46:9-21.

Ms. Cheskis and Nancy Haskell, the Safeway manager on duty at the time of the fall, noticed a strip of water “in the area” after the fall. Id. at 30:4-13; ECF 54-7, at 46:20-21, 50:15 - 52:1, 83:10-12. Ms. Haskell recalled that the strip of water was about a foot long. ECF 54-7, at 51:7-15. In the incident report she completed after Ms. Cheskis fell, Ms. Haskell stated that “[t]he customer slipped and fell due to some water on the floor left by a third party floor cleaning company.” Incident Report, ECF 54-8; see ECF 54-7, at 70:12-20. Lisa Giacobbe Khmaladze (“Ms. Khmaladze”), the sole member of PWR, and Mr. Taylor, a Safeway manager, both stated that the scrubber can leave behind little trails of water. ECF 54-3, at 30:20 - 31:20; ECF 53-6, at 19:11- 20:9. Ms. Cheskis testified that her clothing did not feel wet after she fell and she did not notice any wet spots on the floor around her. ECF 54-2, at 30:11-12, 34:6-8.

Ms. Khmaladze testified that waxing the floors does not make them slippery. ECF 54-3, at 28:6-8. According to Ms. Khmaladze, PWR waxed Safeway's floors with wax provided by Safeway and cleaned the floor “with water and chemical solution provided by Safeway.” Id. at 12:6-9 & 16:10-13. She said the company would “run the scrubber on that particular area and then . . . get the wax and apply to the floor using mops.” Id. at 10:10-12. She also said that PWR employees were not “supposed to” scrub and clean the floor after it had been waxed. Id. at 14:7- 11. Rather, the floor is “usually buffed . . . the next day. So if [PWR] wax[es] this section tonight, it wouldn't buff it until, like, almost two days later.” Id. at 28:11-13. She explained that “the wax needs to harden and when it's soft, if you buff it with the high speed buffers that we have, then the wax just gets wiped all off . . . .” Id. at 28:15-17. In addition, the instructions on the wax itself state: “Allow to cure for 24 hours before burnishing.” ECF 45-4, at 2.

On May 13, 2019, Ms. Cheskis filed this negligence action against Safeway in the Circuit Court for Anne Arundel County, Maryland. ECF 3. On June 13, 2019, Safeway removed the action to this Court. ECF 1. In her Second Amended Complaint, she claims:

Defendant Safeway was negligent and breached its non-delegable duty by failing either to remove the liquid from the floor, make sure the floors were dry, close the store until the floors were safe to walk on, and/or to put up signs in the proper areas stating that the floors were wet/polished/waxed/slick or otherwise dangerous; failure to warn that any walking in that area should be done with caution; failure to otherwise warn the Plaintiff that the ground was wet/slippery/slick, failure to follow the instructions as to putting the wax on the floor as the instructions indicated that the “floors would be very slippery until dry, ” allowed liquid to gather on the floor in the area where Plaintiff fell and did not properly inspect the floors to make sure that they were safe for customers (including the Plaintiff) during the time period that Plaintiff was in said Defendant Safeway location and was otherwise negligent.

Second Am. Compl. ¶ 11, ECF 50 (bold in original). Plaintiff further asserts that under the doctrine of respondeat superior, Safeway is vicariously responsible for any negligence by PWR. Id. ¶ 14.

After the completion of discovery, Safeway moved for summary judgment. ECF 53.

Safeway argues it is not legally responsible for any hazardous condition that PWR, an independent contractor, may have created. ECF 53-1, at 5, 12, 19-20. Safeway also argues that, even if it were responsible for PWR's actions, there is insufficient evidence of negligence to submit the claims to a jury. Id. at 5, 21-22. Finally, Safeway argues that, even if there is sufficient evidence of negligence, it did not have sufficient notice of the hazardous floor conditions to remedy them or warn Ms. Cheskis about them. Id. at 5, 12, 17-19.

II. Standard of Review

Summary judgment is appropriate when the moving party establishes 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). To meet its burden, the party must identify “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials” in support of its position. Fed.R.Civ.P. 56(c)(1)(A). Then, “[t]o avoid summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue for trial.” Perkins v. Int'l Paper Co., 936 F.3d 196, 205 (4th Cir. 2019) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The opposing party must identify more than a “scintilla of evidence” in support of its position to defeat the motion for summary judgment. Anderson, 477 U.S. at 251. Although “a court should not weigh the evidence, ” Perkins, 936 F.3d at 205 (quoting Anderson, 477 U.S. at 249), if “a party fails to establish the existence of an element essential to that party's case” or “‘the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, '” then summary judgment is proper, id. (quoting Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In ruling on a motion for summary judgment, this Court “view[s] the facts and inferences drawn from the facts in the light most favorable to . . . the nonmoving party.” Perkins, 936 F.3d at 205 (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir. 1996)).

III. Discussion

To prevail on her negligence claim, Ms. Cheskis must prove “1) that the defendant was under a duty to protect the plaintiff from injury, 2) that the defendant breached that duty, 3) that [she] suffered actual injury or loss, and 4) that the loss or injury proximately resulted from the defendant's breach of duty.” Steamfitters Local Union No. 602 v. Erie Ins. Exch., 233 A.3d 59, 72 (Md. 2020) (quoting Rowhouses, Inc. v. Smith, 133 A.3d 1054, 1066 (Md. 2016)).^[1] Duty and breach are the elements at issue in the pending motion.

A. Duty

Safeway...