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Deering Woods Condominium Association et al. v. Margaret F. Spoon, No. 123, September Term, 2002 Torts - Liability of possessor of land and of abutting owners - Plaintiff slipped on ice and fell - Maryland ice and snow fall-down cases reviewed. Held: Summary judgment appropriately granted to defendants on the facts for lack of constructive notice.

Circuit Court for Howard Co unty Case No. 13-C-99-040671

IN THE COURT OF APPEALS OF MARYLAND No. 123 September Term, 2002 _________________________________________

DEERING WOODS CONDOMINIUM ASSO CIAT ION et a l.

v.

MARGARET F. SPOON _________________________________________ Bell, C.J. Eldridge Raker Wilner Cathell Harrell Rodowsky, Lawrence F. (retired, s pecially as signed ), JJ. _________________________________________ Opinion by Rodowsky, J. ________________________________________ Filed: October 6, 2003

This slip on ice and fall case was brought against the condominium where the plaintiff resided, its management company, and against Columbia Association, Inc. (CA), the owner of adjoining land where the accident occurred. Summary judgments entered in favor of each defendant by the Circuit Court for Howard County were reversed by the Court of Special Appeals in an unreported opinion. This Court issued the writ of certiorari, primarily to determine whether a provision in the condominium bylaws effected a waiver of the plaintiff's claim. We find it unnecessary to answer that question because, as the trial court concluded, there is no legally sufficient evidence of constructive notice as to any defendant. The Facts The accident involved here occurred in the unincorporated city of Columbia in Howard County. CA, one of the petitioners, is a non-profit corporation which offers cultural, recreational, and community services programs to the residents of Columbia. CA owns about 3,000 acres of open space where it provides such amenities as pathways, bridges, playgrounds, and play areas. The open space basically is in stream valleys. The developed areas in Columbia, whether residential or commercial, eventually drain into one of the CA-owned stream valleys. Deering Woods Condominium Association (Condo), another petitioner, owns a residential condominium at 5665, 5667, and 5669 Harpers Farm Road in the Village of Harpers Choice, Columbia. The third petitioner, First American Management, Inc. (Mgmt. Co.), at all relevant times managed Condo.

-2Margaret F. Spoon, the respondent (Ms. Spoon), purchased Unit E in Condo's building at 5669 Harpers Farm Road in March 1992 but, due to employment overseas, did not begin uninterrupted residence there until March 1996. Behind Condo's property is one of the stream valleys. Running parallel with the stream is an asphalt paved pathway, approximately six feet wide. The pathway is accessible from Condo by a sidewalk, which includes a flight of stairs, leading down to intersect the pathway. The area along the pathway and streambed is wooded. A person who has descended the stairway from Condo and turned to the left as one faces the streambed, walks in a short time to the place where the subject accident occurred (the Site). Roughly on a direct line drawn perpendicularly to the stream and running through the Site up the hillside to the elevation of Condo's buildings is Condo's parking lot. Surface water from that parking lot is collected and discharged through an outfall pipe into a drainage ditch filled with riprap. The drainage ditch extends down the hill and across the property line between the land owned by Condo and that owned by CA. The ditch or swale extends on the CA property approximately ten feet from the boundary to the side of the asphalt pathway. Water from the drainage ditch then passes, or was intended to pass, over the top of the pathway and to the stream.

-3The subject accident occurred on the morning of Sunday, January 12, 1997. Climatological data recorded at Baltimore-Washington International Airport reflects the following conditions there.1
Date Maximum Temperature F 33 41 32 26 Minimum Temperature F 27 26 18 14 Snow on Ground (Depth in Inches) M 1.0 2.0 T Snowfall Precipitation (Inches) 2.4 .6 2.0 --

Jan. 9 Jan. 10 Jan. 11 Jan. 12

At about 8:30 a.m. on January 12 Ms. Spoon took her dog for a walk, using her usual route which did not include the Site. Indeed, Ms. Spoon, prior to the accident, had never been to the Site. She was "afraid to go down in there" because she had known that "they had caught people down there" who had been "[a]ttacking or whatever." The walkways and parking lot on her usual route were clear, although there was snow on the untreated areas. Because her dog had not done its "business," Ms. Spoon decided to extend their walk. She went down the sidewalk to the stairway that descends toward the stream. The sidewalk and stairs had been cleared, and the stairway had been sanded.2 The pathway that runs parallel with the stream had also been cleared of snow. Ms. Spoon, who was wearing snow boots,

That airport is roughly ten to twelve miles from the center of Columbia. In the chart set forth below "M" means missing data and "T" means trace. A contractor, Greenlink, Incorporated, which had snow plowing and snow shoveling agreements with Condo, had performed plowing, shoveling, salting, and sanding operations on January 9, 10, and 11, 1997, at Condo's premises.
2

1

-4tested the surface of the pathway at the foot of the stairs and concluded that the pathway was free of ice. She walked along the path to the Site where she slipped on black ice and fell, sustaining bodily injuries. 3 Ms. Spoon filed the instant action. By a scheduling order, the circuit court established dates for the close of discovery and for the filing of dispositive motions. Summary judgment motions were filed by Condo, Mgmt. Co., and later, with leave of court, by CA. The summary judgment record, insofar as it is relevant to any negligence of the petitioners, consists primarily of the depositions of Ms. Spoon and of Dennis Ellis (Ellis), the construction manager for CA. At the time of his deposition in May 2000, Ellis had worked for CA for about twentyeight years, fifteen of which as construction manager. He testified that there was nothing unusual about having surface water flow across CA open space to streams and that there were "literally thousands" of such crossings in Columbia. Ellis placed the construction of the subject pathway to "probably before" 1970. The drainage ditch was dug by the developer of Condo's premises. Ellis placed that work as having been done in the late 1970s or early 1980s. He had found a site plan showing an easement area over CA property at the Site for surface water in concentrated form from Condo's premises, but there is no recorded easement agreement.

3

At her deposition, no one asked Ms. Spoon to estimate the area of the ice patch.

-5At unspecified distances from the Site, on each of the upstream and downstream sides, there are also drainage ditches. At those two locations, in lieu of having surface water pass over the pathway, the runoff travels under the pathway through a culvert and to the stream. Ellis explained that over-the-surface drainage is used "where the swale, basically, terminates at the pathway itself and the water is expected to drain across the pathway. And you want to make sure that you have positive drainage and that the pathway is tilted in such a way that the path--that the water runs across it and doesn't run back with a puddle of water and that sort of thing." By positive drainage he means the absence of "ponding." In post-accident inspections of the Site, Ellis did not make any determination as to whether there was positive drainage "because it was basically dry conditions every time [he had] seen it and it looked pretty normal to [him]." Ellis was not aware of any complaints to CA that there was not positive drainage flow over the pathway at the Site; he was not aware that anyone, other than Ms. Spoon, had fallen on the pathway in the area behind Condo's property; and he had no knowledge of any complaints about accumulations of ice on the pathway behind Condo's property. Ellis was asked what measures, other than constructing a culvert, could be taken if the determination were made that "there is not a positive flow of water across the surface of the path." He responded that one method might be a "raised boardwalk or bridge situation" and another is to alter the grading and manipulate the direction of water. He further commented that he thought there was a physical impediment to the use of a culvert at the

-6Site, because there is a manhole in the pathway for accessing a sanitary sewer under the pathway. Ms. Spoon did not produce any expert opinion contradicting Ellis's views. Nor did she produce evidence of any complaints whatsoever or other form of actual notice to any petitioner about water ponding or ice formation at the Site. The Procedural History Ms. Spoon's complaint alleged that the petitioners had a duty "to use reasonable and ordinary care to maintain, manage and control the [Site] and to keep the [Site] safe from unreasonable risk of harm to [her]." This duty was breached, she alleged, by, inter alia, failure properly to drain the Site and negligently allowing a layer of ice "to remain atop the pavement on the [Site]." Condo moved for summary judgment, raising only a defense of waiver of claim by Ms. Spoon based upon a provision in Condo's bylaws. At the same time, Mgmt. Co. moved for summary judgment, asserting as its sole ground that it had no obligation to clear ice or snow from CA property. When CA filed its motion for summary judgment it argued, inter alia, that there was no evidence that it had knowledge of any ice on the pathway. Ms. Spoon filed a written opposition to CA's request for leave to file the motion for summary judgment after the scheduling order deadline. Awaiting a ruling on that opposition, she did not respond to the merits of the tendered motion.

-7At a hearing on all of the motions for summary judgment, Condo and Mgmt. Co., who were both represented by the same counsel, argued that "[b]oth motions are found[ed] upon two basic principles .... First, there is the lack of any duty. Second, there is the lack of any notice." Next CA argued its motion for summary judgment, submitting that there was an absence of notice and that it "cannot be everywhere, all the time, to make sure that every drop of water doesn't become ice." Ms. Spoon responded.4 She argued that one could infer from the absence of ice along the pathway between the stairs and the Site that the ice on which she fell had formed from runoff from the drainage ditch. The court inquired, "Okay. But how does that address the notice issue?" In reply Ms. Spoon argued that, because workers had cleared snow from the stairs and the pathway, a fact finder could reasonably infer that the ice at the Site was observed, or should have been observed. Ms. Spoon then addressed other issues, e.g., pleading waiver, the construction of the bylaws, and her status on the CA land. The court interrupted, saying: "But what, I guess, I'm just trying to understand your arguments as to the notice issue, because I think that that's a big issue. Are you suggesting that the only evidence that you would be presenting ... is the fact that there was snow removal being conducted on that date or close to that date[?]"

When addressing CA's arguments, Ms. Spoon noted that CA's motion for leave to file its motion had not been ruled upon expressly. Thereupon, the court granted leave on the record, after referring to some prior and apparently off-the-record discussions resulting in the court's setting the merits of the summary judgment motions for the hearing then being conducted.

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-8Ms. Spoon's answer was that Ellis "was not the only person, or even the most immediate person who would have received, been fielding those complaints, and that there may be other people at [CA] who would be--could speak more accurately to" the issue of notice. The following colloquy then ensued: "THE COURT: is closed, right? Well, who is going to do that? I mean discovery

"[MS. SPOON'S COUNSEL]:

Discovery is closed.

"THE COURT: I mean who is going to present that testimony. I mean that's something that is pretty essential to be presented. "[MS. SPOON'S COUNSEL]: Well, there were other people identified in responses to our discovery requests as representatives of Columbia Association. We would intend to call them at trial. "THE COURT: No, but who do you have that is going to say that there was--I mean, how are you going to establish constructive notice? I think there is no disagreement you don't have actual notice. How are you intending--I mean that's the gist as I understand it. That's probably the primary gist to the argument." Ms. Spoon then returned to her argument that people working for at least one of the defendants in clearing snow should have realized that there was ice, in addition to snow, on the pathway at the Site. The court ruled from the bench, reasoning as follows: "I think that the problem we have is that although perhaps [the plaintiff's] theories are not flawed, they're, at this point with discovery being closed, there just isn't evidence to support what the plaintiff is alleging in this case." Taking up the particular motions in the order in which they had been argued, the court said:

-9"I will grant ... defendant First American Management, Inc.'s motion for summary judgment, I will grant that for the reasons advanced by the management company. Also the defendant [Condo's] motion for summary judgment as to the waiver issue, I will grant that." With respect to CA's motion the court said: "But I will grant [CA's] motion for summary judgment. I just don't find that there are any disputes as to any material facts and that judgment should be granted." Ms. Spoon did not move to revise any of the judgments; she appealed to the Court of Special Appeals. In her brief to that court she argued, inter alia, that "[i]n granting [Condo's and Mgmt. Co.'s] summary judgment motions, the trial court erroneously considered and relied upon arguments of counsel pertaining to 'lack of notice,'" because, she said, those grounds had not been raised in the written motions. She further argued that a jury reasonably could infer that "appellees knew or had reason to know that ... icy conditions might result from the water flowing over the [Site]." In addition to the alleged failure to remove, salt, or sand the ice, Ms. Spoon submitted that the petitioners were negligent in failing to build a footbridge over the pathway at the Site, or to alter the drainage by grading. Those were alternatives that Ellis had testified might be employed, if there were ponding at the Site. In their joint brief to the Court of Special Appeals, Condo and Mgmt. Co. argued waiver of claim, lack of duty to persons off of Condo premises, and no evidence of notice that there was any ice or ponding at the Site. CA, when addressing the substantive merits, argued exclusively lack of notice of ice or ponding at the Site.

- 10 The Court of Special Appeals read the circuit court's ruling to be that "[s]ummary judgment was granted to [Condo] solely on the ground that [Ms. Spoon] had waived any cause of action she had against the condominium." (Emphasis added). Concluding that there had been no legally effective waiver, the intermediate appellate court reversed as to Condo. With respect to CA the appellate court accepted Ms. Spoon's argument that "the appellees were aware, or should have been, of the possibility of water draining from [Condo's] parking lot flowing over its pathway, and possibly freezing there." (Footnote omitted). This was held legally sufficient "to give rise to a duty to warn [Ms. Spoon] or to make the pathway safe." The Court of Special Appeals reversed as to Mgmt. Co. because that court considered that "[t]he only reason advanced by [Mgmt. Co.] was that ... it had no duty to clear ice on property belonging to [CA]." Consequently, said the appellate court, Mgmt. Co. "did not present any evidence, or advance any legal argument in response to [Ms. Spoon's] position that [Mgmt. Co.] was liable in negligence for creating and maintaining the drainage ditch on [Condo's] property." The claim was remanded to the circuit court for consideration of that issue in the first instance. Condo and Mgmt. Co. jointly petitioned this Court for certiorari, presenting but one question, namely, the correctness of the intermediate appellate court's rejection of the waiver defense. In its petition for certiorari, CA relied upon the absence of evidence to support finding constructive notice. Petitioners' briefs in this Court fleshed out the outlines of their respective certiorari petitions. Responding to CA's brief in this Court, Ms. Spoon reiterated

- 11 her notice arguments which assumed there had been a positive flow problem at the Site. She asserted, inter alia, that CA "failed to employ other alternatives for addressing the 'positive flow' problem, such as a wooden boardwalk or bridge, or grading changes." She also argued that she had been denied a proper opportunity to file an affidavit from an expert in opposition to CA's motion for summary judgment. I A We address first whether summary judgment was properly granted in favor of CA. The accident occurred on its land, and the alleged dangerous condition, i.e., ice formed at the interface between the swale and the pathway, was on its land. Further, Ms. Spoon was a "public invitee," namely, "a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public." 2 Restatement (Second) of Torts

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