Giant of Md. LLC v. Webb

249 Md.App. 545

246 A.3d 664

GIANT OF MARYLAND LLC

v.Karen WEBB

No. 413, Sept. Term, 2019

Court of Special Appeals of Maryland.

February 25, 2021

Argued by: Stephen J. Marshall (Jessica J. Ayd, Franklin & Prokopik PC on the brief), Baltimore, MD, for Appellant.

Argued by: Michael D. Reiter (Chasen Boscolo Injury Lawyers on the brief), Greenbelt, MD, for Appellee.

Leahy, Wells, James A. Kenney, III (Senior Judge, Specially Assigned), JJ.

Kenney, J. Appellee, Karen Webb, was injured on December 4, 2014 while shopping at a supermarket owned and operated by appellant, Giant of Maryland, LLC ("Giant"). On October 25, 2017, she sued Giant in the Circuit Court for Anne Arundel County, advancing two causes of action: (1) negligence and (2) negligent hiring, training, and supervision.¹ A jury returned a verdict in her favor.

In its timely appeal, Giant presents four questions, which we have reordered, slightly rephrased, and consolidated into three for our review:²

I. Did the circuit court err in denying Giant's motion for summary judgment prior to trial and its subsequent motion for judgment?

II. Did the circuit court err in denying Giant's motion in limine to exclude argument that Giant owed Ms. Webb a non-delegable duty of "safety"?

III. Did the circuit court err or abuse its discretion in giving a spoliation instruction?

For the reasons set forth herein, we shall reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The Incident

Ms. Webb's injury occurred in the frozen-foods aisle at Giant. She testified:

I turned around and to put the stuff in my – in the basket and I stepped back and I was struck in the back. And I fell backwards, struck my back and my buttocks which we have pictures to show the bruising that I did hit something and I fell to the ground. And I assume it was a Pepsi person that was pushing the cart.³

Ms. Webb's prior medical history indicated prior incidents of dizziness and falling. Giant's incident report and some medical records suggest that she had reported being dizzy and falling when the incident occurred.

Keydonne Winzer, the person "pushing the cart," denied striking Ms. Webb. He testified:

Okay. ... We have those wooden pallets that we have our crates and things on and I was pulling it to the back of the store. As I'm going down the aisle, I recognize that there's a lady who is knelt down in front of one of the freezer doors. So generally I told her – well, normally when I do the pallets, I'll let the customers know, hey, I'm behind you or I'm on the aisle.

So I said, "Hey I'm behind you." I don't think she really heard me because she stood up, it seems that she lost her balance and when she stumbled backwards, she hit the edge of the pallet and then hit the floor.

As to his employer, he testified:

[Giant's Counsel]: Okay. You received all your training from Pepsi?

[Mr. Winzer]: Yes.

[Giant's Counsel]: Did you ever receive training from Giant?

[Mr. Winzer]: No.

[Giant's Counsel]: Did you ever receive any type of payment directly from Giant?

[Mr. Winzer]: No.

[Giant's Counsel]: Were you ever an employee of Giant?

[Mr. Winzer]: No.

[Giant's Counsel]: You were always an employee of Pepsi?

[Mr. Winzer]: Yes.

* * *

[Giant's Counsel]: Now, your purpose while you were at the Giant that day was to make sure Pepsi product was stocked, correct?

[Mr. Winzer]: Yes.

[Giant's Counsel]: Okay. Did anybody from Giant ever tell you how to stock Pepsi products?

[Mr. Winzer]: No.

* * *

[Giant's Counsel]: In your experience as a merchandiser, were you ever followed by any store employee to watch – so they'd watch you do your job?

[Mr. Winzer]: No.

[Giant's Counsel]: Because they're doing their job, right?

[Mr. Winzer]: Right. Sometimes afterwards, that's – that would be to check to see if I did the job the correctly.

[Giant's Counsel]: If it's stocked properly?

[Mr. Winzer]: Right.

* * *

[Giant's Counsel]: [Giant] did not hire or fire you?

[Mr. Winzer]: No.

[Giant's Counsel]: It did not control your conduct while you were in the store, is that correct?

[Mr. Winzer]: No.

Motion for Summary Judgment

On September 14, 2018, Giant moved for summary judgment:

For the purpose of this motion, and for the resolution of the claims against Giant, while there are disputed facts regarding the manner in which the occurrence happened, it is undisputed that the alleged tortfeasor was not an employee of Giant. Because the person that may have struck the Plaintiff was not an employee or agent of Giant, Giant cannot be vicariously responsible for that person's alleged negligence. Additionally, there cannot be a cause of action for negligent hiring, supervision, or retention. Plaintiff's claims all fail as a matter of law, and Giant is entitled to judgment in its favor.

Ms. Webb, in opposition to the motion, stated:

The man was not wearing any type of uniform and did not identify himself to Ms. Webb and as a result [she] was not aware whether he was an employee of Giant. Exhibit A at 31-3 through 17. However, [she] assumed that the man that struck her was an employee of Giant.

* * *

Mr. Winzer has testified that Defendant Giant's pallet jacks were known and understood to be available for his use and that of other such third-party vendors with the express permission and consent of Defendant Giant. ... Mr. Coradini [Giant's corporate representative] also explained that Defendant Giant would direct vendors on such matters as where to place items and displays and "correct" them where a safety issue was observed.

* * *

The Motion for Summary Judgment must be denied because Giant is vicariously liable for the subject incident which caused Ms. Webb's injuries and also because there remain genuine disputes of material fact as to the identity of the individual who struck Ms. Webb with the pallet jack.

(Emphasis added).

The circuit court denied the motion without a hearing.

Motion in Limine

On April 3, 2019, Giant filed an Omnibus Motion in Limine to preclude Ms. Webb from arguing that Giant had "breached a ‘safety’ duty as a property owner" under a "Reptile Theory"⁴ approach by "appeal[ing] to the jury's own interests and/or passions and ask[ing] them to place themselves in the proverbial shoes of the plaintiff when deciding what the defendant should have done." In addition, the motion in limine sought to preclude any evidence or testimony that Mr. Winzer "was an employee, agent, or servant of Giant," because it was now undisputed "that the person pushing the cart was an employee of PepsiCo."

Ms. Webb responded that "[t]here is a genuine dispute of material fact as to the identity of the employee who caused [her] injuries," and that "she does not know whether the man who struck her was employed by Defendant Giant." In addition, she argued that "Giant, as the property owner of a business open to the public, owe[d] a duty to ‘use reasonable care to see that those portions of the property that the invitee may be expected to use are safe.’ " Characterizing Giant's duty as "non-delegable under Maryland law," she argued that "the duty of care owned to Ms. Webb" was breached when it "permitted Mr. Winzer ... to utilize a pallet jack it owned with its permission and consent, in its store aisles, at the same time they were to be open to customers (invitees), without proper oversight or supervision."

When the parties appeared for the first day of trial, the court, after argument, denied the motion:

[W]ith regards to Mr. Win[ze]r as [to] whether he's an employee, agent, servant of Giant, again, these are, I think, you are asking me again to kind of make a ruling without having the evidence. I think this is the facts that are going to be at issue, and I will address this at the conclusion of the case, so I decline to rule on a Motion in Limine at this point. – whether Giant breached a safety duty as the property owner, again, I'm going to instruct the jurors on the law. If they start to argue a higher duty and it's not supported by my instructions, that's going to be an area that they're going to have a problem with in closing arguments.

They're going to get the instructions from me, you know. That will be fair fodder for your closing, you know.

So at this point I'm going to deny your motions with regards to that.

(Emphasis added).

Motion for Judgment

At the close of Ms. Webb's case-in-chief, Giant moved for judgment on two grounds: (1) that there was no evidence of an unreasonably dangerous condition on the premises to support a claim that Giant breached a non-delegable duty to keep its premises safe; and (2) that there was no evidence that Mr. Winzer was an agent, servant, or employee of Giant sufficient to support a claim for vicarious liability or negligent hiring, supervision, training, or retention.

Ms. Webb's counsel responded:

The property owner here, which is undisputed, Giant, has a non-delegable duty ... which he is not free to delegate to the contractor. Such a non-delegable duty requires the person upon who it is imposed to answer for that care as exercised by anyone even though he be an independent contractor to whom the performance of the duty is entrusted. ...

[E]mployers are liable under this exception⁵ irrespective of whether they themselves have been at fault. Whether vicarious liability should be imposed upon an employer by application of this exception is a matter of policy.

* * *

That's exactly what we have here and with respect to these questions regarding notice, whether knows or should have known, there was testimony from both the Giant rep and from Mr. Winzer that they know – first of all, it's a store owned by Giant and it's a pallet jack owned by Giant with their permission and consent stocking shelves for their benefit. And the duty is to use reasonable care to see that those portions of the property that the invitee may be expected to use are safe.

The trial court granted judgment in favor of Giant on premises liability, but permitted the case to go forward based on vicarious liability:

I evaluated the evidence of this case and ... looked at the case law that was cited and what I believe

...