6/29/2015: The “Phantom Menace” in Premises Liability Cases

By Andrew Stephenson

The vast majority of premises liability cases should be disposed of by way of summary judgment, especially in Maryland, where the law overwhelmingly favors premises owners. With that said, we almost never get summary judgment in Prince George’s County, Maryland. I was actually beginning to wonder if the judges were even reading them before issuing their one line orders denying the motion citing the conveniently ubiquitous ‘dispute as to material facts.’ Given that judges cannot be reversed for denying a motion for summary judgment, but can be for granting one; and given that the motions judge is not going to be the same judge who will have to actually try the case; I guess there really is no incentive for judges to grant dispositive motions.  So, you will appreciate that my waning confidence in the judicial system, and the P.G. County Circuit Court in particular, was recently restored when we successfully secured an Order granting our motion for summary judgment in the case of Erica Wright v. Large Chain Retailer,  Civil Case # CAL13-33195.

The subject of that motion and the reasoning of the Court in granting the same, provide the basis for this article. The issues involved in that case provide us with an excellent road map for dealing with the Phantom Menace both in terms of legal arguments and best post-incident reporting practices. So, what on earth is the Phantom Menace assuming that it’s not the Dark Sith Lord from Star Wars Episode I? “Phantom Menace” is the pet name that we attorneys at Franklin & Prokopik have given to the annoying, never to be identified, store employee, who just happens to immediately arrive at the scene of a slip and fall, and blurts out any of the following statements (or similar versions thereof): “My word! Is that dangerous defect still there? I kept telling our manager that we needed to do something about that or someone was going to get hurt. Shame on us. C-ya later”; or “I can’t believe that we didn’t clean up that spill, it’s been there for hours and I told management that it was a hidden, hazardous, danger to the general public. Gotta run!”; or “Oh, that old piece of broken carpet strip? We would have fixed it weeks ago but we didn’t want to spend the money because profits are far more important than safety, at least that’s what the boss always says. My shift just ended, I’m, outta here.”   The Phantom Menace is always very difficult for plaintiffs to describe and they never do catch his (or her) actual name. He’s never too old, or too young, too big or too small. He never has any unique features like green hair or a tattoo on his face. In deposition, you might hear a plaintiff discuss the Phantom Menace thusly: “He kinda had dreadlocks, or maybe a crew cut, or something in between. It all happened so fast and I was in terrible pain, so I don’t really remember his appearance, but I definitely remember exactly what he said.”

It really is hard for plaintiffs to win simple premises liability cases. In Maryland, the 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.Keene v. Arlan’s Dep’t Store of Baltimore, Inc., 35 Md.App. 250, 256, 370 A.2d 124 (1977). Whether there has been sufficient time for a business proprietor to discover, cure, or clean up a dangerous condition depends on the circumstances surrounding the fall. See Deering Woods Condo. Ass’n v. Spoon, 377 Md. 250, 833 A.2d 17 … (… 2003). “ ‘What will amount to sufficient time depends upon the circumstances of the particular case, and involves consideration of the nature of the danger, the number of persons likely to be affected by it, the diligence required to discover or prevent it, opportunities and means of knowledge, the foresight which a person of ordinary care and prudence would be expected to exercise under the circumstances, and the foreseeable consequences of the conditions.’ ” Id. (quoting Moore v. Am. Stores Co., 169 Md. 541, 551, 182 A. 436 (1936)).  Further, in the absence of evidence regarding storekeeper’s actual or constructive knowledge of an allegedly dangerous condition, it is unreasonable to require constant inspection by the storekeeper. See Carter v. Shoppers Food Warehouse MD Corp., 126 Md. App. 147, 164, 727 A.2d 958, 967 (1999) (“it would not be reasonable to require appellee constantly to inspect the produce section and fix the floor mats each time a corner becomes misplaced or turned up.”).  The Court of Appeals has also determined that storekeepers cannot have constructive notice of conditions such as a loose carpet seam where a plaintiff’s stumble and footwear may have created the alleged defect.  See Leannarda v. Lansburgh’s, 260 Md. 701, 706, 273 A.2d 149 (1971) (“[w]e see a clear distinction between a metal tread which could have been loosened only by a screwdriver or a long period of sustained wear and tear, and a carpet seam none the worse for wear but vulnerable to the spiked heels of [Plaintiff] or an earlier customer”). It’s almost unfair.

Of course, it’s the tricky old “notice” element that proves most elusive to plaintiffs and hence the geneses of the Phantom Menace. Except for the Phantom Menace, Plaintiff, Erica Wright, wouldn’t have even survived a motion to dismiss. She probably wouldn’t have even filed a lawsuit to begin with. Plaintiff, Wright, alleged serious injury further to a slip and fall at my client’s retail outlet. She claimed that she fell over a loose rubber transition strip. Her only evidence of notice was that an unidentified, unnamed, store employee, happened on the scene and stated, “I’m not going to get fired for this, they knew about this, they should have fixed this a long time ago”, before exiting stage left. The Phantom Menace may often be brought to light for the first time several years after what was then understood to be a fairly innocuous incident. We often discover the Phantom Menace long after records confirming the identity of every store employee working at the time of the alleged incident have been lost or destroyed in the normal course of such business affairs. Affirmatively disproving the existence of the Phantom Menace may be difficult, if not impossible, three years post incident. Either way, a plaintiff’s sworn testimony as to the existence of a Phantom Menace, even in the face of affirmative proof to the contrary, is usually enough to create the dreaded ‘dispute of materials facts’ sufficient to defeat a bid for summary judgment.

We moved for summary judgment, even despite Plaintiff, Wright’s testimony, asking the court to ignore the Phantom Menace arguing that his alleged statements were inadmissible hearsay and should be ignored; that Plaintiff’s lack of any detailed description had denied us of the opportunity to identify the Phantom Menace such that we had been denied the opportunity to cross examine. The Court properly entered summary judgment in our favor when it determined that the record contained insufficient evidence to establish such notice, where the only statement Plaintiff produced in support of her contention that Defendant possessed notice was the hearsay statement of a completely unidentified male.  The Court rejected Plaintiff’s arguments that the hearsay statement qualified for the exception of being an excited utterance. One of the key factors the Court noted was that Plaintiff had failed to provide any evidence that would show that the Phantom Menace was even a store employee-.i.e. she could not identify any insignia that would tend to show an employment relationship.  The Court further noted that Plaintiff had presented no evidence to distinguish whether the Phantom Menace was a stockroom employee, a janitor, a cashier, etc., such that floor conditions would be within the scope of the purported employment.

However, in the meantime, let’s all consider some better post incident practices which will allow us to affirmatively disprove the existence of the Phantom Menace. Of course, any discussion of post incident practices has to be tempered with the pragmatic recognition that every incident is different and one size doesn’t usually fit all.  If a customer slips and falls and breaks his neck then, of course, no stone will be left unturned and the best post incident practices will be employed to the nth degree. But it’s often the more innocuous incidents where the customer gets back up and leaves the store without assistance, but later gets multiple back surgeries, which elude us.

Probably, the most obvious and basic measure is to get a list of all store employees who actually worked a shift at or around the time of the alleged occurrence. Providing this list to Claims or Risk Management, together with the incident report, is certainly a great start. However, depending on the size of your business, that list might include anywhere from 2-30 employees. Gathering up thirty employees to provide sworn affidavits or, worse, testimony at trial, three or more years post incident could prove difficult. A large contingent is likely to be former employees or simply outside of the court’s subpoena power by the time you need them. And, heavens forbid, you only get twenty-nine out of the thirty, because you know how a good plaintiff’s counsel will spin that at trial. One way to overcome the cumbersome logistics of getting every employee to come and testify, that he or she is not the Phantom Menace, is to secure their photographs either from their personnel files, or just ask them to take a selfie and text it to you. We then present copies of all photographs to the plaintiff during deposition and demand that plaintiff identify the Phantom Menace. If she does pick out one of the photographs then at least you are down to calling only one witness. Logistical problem solved!

Another alternative, and what I would suggest as a best practice option, is to have a portion (maybe even a whole page or separate report) on your standard incident report for every employee to sign under a section that affirmatively states something to effect of: “By signing this document and I am hereby affirming that I did not witness this incident, I did not communicate to the individual involved in the incident, and I had no prior knowledge of any condition that could have caused the incident.” Post incident, it would then be incumbent on the store manager to go around to every store employee and have them sign that portion of the incident report. A similar approach can be taken with regard to the potential claimant by having a section of the incident report provide something to effect of: “Please note here if there was any statement made to you, or heard by you, by a company employee following the incident.”

As necessity is the mother of invention, no doubt creative plaintiffs’ attorney will continue to develop new ways to overcome the legal obstacles in simple premises liability cases. However, with thorough discovery, sound legal argument, and better post incident reporting, the Phantom Menace is not one that we need to let slip through the cracks.

If you have any questions regarding this article or any liability, comp, or L&E, issues in Maryland, D.C., Virginia or Delaware, please never hesitate to contact me (astephenson@fandpnet.com; direct: 410-230-3638; cell: 443-756-6564).