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REPORTED

IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1630 September Term, 2002

HENRY REHN v. WESTFIELD AMERICA, ET AL.

Murphy, C.J., Adkins, Sharer, JJ.

Opinion by Adkins, J.

Filed: December 8, 2003

In this slip and fall case, plaintiff-appellant Henry Rehn asks us to reverse summary judgments in favor of defendantsappellees Mike Edmonds d/b/a Chick-fil-A (Chick Fil-A), Westfield America (Westfield), and Interstate Cleaning Corporation (ICC). Rehn broke his hip when he slipped on spilled soda near the service counter of the Chick-fil-A located in the Annapolis Mall food court. Westfield was responsible for maintaining the area where

Rehn fell, and contracted with ICC for those maintenance services. Rehn presents two questions for our review, which we have rephrased as follows: I. Did the circuit court err in determining that Chick-fil-A did not have a duty to clean up or warn Rehn about the spill? Did the circuit court err in determining that none of the defendants breached their duties of care to Rehn?

II.

We agree that there was no material factual dispute on the second question of whether these defendants breached their duties to Rehn. Consequently, we shall affirm the judgments without addressing the first duty issue with respect to Chick-fil-A. FACTS AND LEGAL PROCEEDINGS All three defendants moved for summary judgment on the basis of undisputed facts that came out during discovery. On May 8, 1999, Henry Rehn and a friend went to the Annapolis Mall. At approximately 10:30 a.m., they decided to get something They walked through the food court to

to eat at Chick-fil-A.

Chick-fil-A, where Rehn purchased a sandwich and a drink at the

counter.

Rehn then "took a small step and slipped" on soda and ice The wet floor was Rehn's

that a Chick-fil-A customer had just spilled.

not marked and Rehn did not see the spill before he fell. right hip fractured, requiring surgery.

Chick-fil-A employee Theresa DeChamps, who had been employed for seven and a half years at this location, was working the counter that morning. At her deposition, she testified that when

there was a spill on the floor outside the counter area, the Chickfil-A employees routinely called customer service at Westfield, and "they would in turn call [ICC] maintenance" on their beepers. It

was her understanding that spills "on the other side of the counter, that was not our responsibility." ICC maintenance workers were the ones who "usually" put up yellow warning signs "when there's a spill." DeChamps also related what happened before

Rehn's fall. She had just waited on a customer who had carried her take-out order, including three or four Cokes in a cup carrier, away from the counter. The customer headed for the food court Shortly after

exit, and DeChamps began to do something else.

leaving the counter, the customer apparently spilled her drinks. DeChamps did not see the spill occur. But the customer came back

to the counter and told DeChamps, "`I spilled my drinks[.]'" DeChamps looked out and saw a large brown spill not far from the service counter. DeChamps explained that she immediately told another employee

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to notify Westfield of the spill. DeChamps: So I, in the process, turned around. My station is right there by where the swinging door is, and I believe there was one other person out in [sic] behind the registers. And, our rule is not to leave anyone out there by themselves, so I opened the door, hollered back there, "Someone call for a spill," and just as I said that, I said, "Also call security," and they said, "Why?" I said, "`Cause someone has fallen." Q: A: Q: Did you see the gentleman fall? No, I did not. . . . So you didn't see the spill and you didn't see the fall, but you saw everything before and after each event, right? . . . Yes.

A:

DeChamps was questioned also about a statement she gave to an investigator. The statement said: "According to Ms. DeChamps, she

did not have an opportunity to call maintenance and the spill was on the floor surface for less than four minutes." When asked

whether she "agree[d] that the spill was on the floor surface for less than four minutes[,]" DeChamps replied, "Yes." The lease between Chick-fil-A provided that Westfield would maintain the area of the food park where Rehn fell. hired ICC to perform its maintenance duties. Westfield

When Chick-fil-A

received information about a spill, it contacted Westfield, who in turn radioed ICC employees stationed in the food park area to clean

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it up and place "wet floor" warning stanchions over the wet floor. ICC employees also patrolled the food court and cleaned up spills that they found or were notified about. Although an ICC worker was

on duty in the food court area when the spill and fall occurred, there was no evidence that he saw the wet floor on which Rehn fell. An ICC employee testified in deposition that yellow "wet floor" stanchions are placed around the food park trash cans for anyone to put out when needed. All three defendants moved for summary judgment on the basis of this evidence. Westfield and ICC asserted inter alia that they

did not breach their respective duties to Rehn because neither had actual notice of the spill and the spill had not been on the floor long enough that they reasonably could have been expected to discover it in the course of patrolling the food court area. Chick-fil-A argued that even though it had notice of the spill, it had no duty to clean it up and, in any event, it did not have enough time to do so. In a written opinion and order, the circuit court noted DeChamps' undisputed testimony that as soon as the customer

reported the spill, she "turned around to face a door behind her in the back of the business, calling to another employee to notify the mall customer service about the spill with the understanding that they would alert the cleaning crew assigned to that area." The

court concluded that "Chick-fil-A did not have a duty to maintain

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the food court area and owed no duty to [Rehn] under these circumstances." In addition, the court held that none of the Rehn noted this

defendants had breached their duties to Rehn. appeal. DISCUSSION

"In reviewing the circuit court's grant of summary judgment, we evaluate `the same material from the record and decide[] the same legal issues as the circuit court.'" Berringer v. Steele, 133 Md. App. 442, 470 (2000) (citations omitted). A party opposing

summary judgment must offer admissible evidence to show that there is a dispute of material fact justifying denial of the motion. See

Tennant v. Shoppers Food Warehouse MD Corp., 115 Md. App. 381, 386 (1997). "A party cannot establish the existence of a dispute

merely by making formal denials or general allegations of disputed facts." Id. at 386-87.

Here, we ask whether the circuit court correctly concluded that the summary judgment record established that none of these three defendants breached their respective duties of care to Rehn. In Maryland, it is well-established premises liability law that the duty of care that is owed by the owner of property to one who enters on the property depends upon the entrant's legal status. Ordinarily, one entering onto the property of another will occupy the status of invitee, licensee by invitation, bare licensee, or trespasser. "An invitee is a person 'on the property for a purpose related to the possessor's business.'" He is owed a duty of ordinary care to keep the property safe. 5

Rivas v. Oxon Hill Joint Venture, 130 Md. App. 101, 109, cert. denied, 358 Md. 610 (2000)(citations omitted). Nevertheless, "[s]torekeepers are not insurers of their

customers' safety, and no presumption of negligence arises merely because an injury was sustained on a storekeeper's premises." Giant Food, Inc. v. Mitchell, 334 Md. 633, 636 (1994). "The burden

is upon the customer to show that the proprietor . . . had actual or constructive knowledge" that the dangerous condition existed. Moulden v. Greenbelt Consumer Servs., Inc., 239 Md. 229, 232 (1965); see Tennant, 115 Md. App. at 389. When another patron

creates the danger, the proprietor may be liable if it has actual notice and sufficient opportunity to either correct the problem or warn its other customers about it. See Rawls v. Hochschild, Kohn

& Co., 207 Md. 113, 117-18 (1955); Tennant, 115 Md. App. at 389. 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. Whether there has been sufficient time for

App. 250, 256 (1977).

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, 2003 Md. LEXIS 691, *18 (filed Oct. 6, 2003). "`What will amount to sufficient time depends upon 6

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 (1936)). I. Chick-fil-A The court concluded that Chick-fil-A did not breach any duty that it may have had to keep the area outside its service counter safe for its customers, or to warn them of dangerous conditions there, because the length of time that elapsed between the creation of the condition (the spilled soda) and the discovery of that condition by those owing a duty to [Rehn] was a matter of moments. The exact time is unknown, but it appears from the testimony of Theresa DeChamps (and from the proximity of the spill to the restaurant counter) that the spill occurred just after the soda's purchase, and the customer causing the spill was able to alert Ms. DeChamps soon after. [Rehn's] encounter with the spill immediately followed. During her deposition, Ms. DeChamps affirmed that the spill was on the floor for "less than four minutes." How much less? By Ms. DeChamps' description, it may be inferred that the time elapsed even could be better measured in seconds. . . . In this case, the soda was not on the floor long enough for Chick-fil-A's employees 7

to find it and take action to prevent it from causing an accident; it was there only momentarily. When Chick-fil-A's employees discovered the spill, steps were taken promptly to correct the problem; [Rehn] encountered it almost simultaneously with those efforts. Therefore, this court finds that no reasonable fact finder could determine, on these undisputed material facts, that Defendant Chick-fil-A's agents were not exercising reasonable care. In its brief, Rehn argues that "[s]ince Ms. DeChamps was aware of the spill prior to Mr. Rehn's fall, a jury would find that Chick-fil-A had actual notice of the dangerous condition prior to the accident." We agree that Chick-fil-A had actual notice. But

such notice, by itself, did not preclude summary judgment, because the dispositive issue here was not whether Chick-fil-A's employee knew about the spill, but rather, how long she knew about it before she did something about it. In practical terms, did DeChamps have

enough time after she learned about the spill to do something that ultimately might have prevented Rehn's fall? We agree with the circuit court that there is no evidence in the summary judgment record from which a jury reasonably could infer that she had enough time to do so. DeChamps' testimony was

undisputed that as soon as the customer pointed out the spill, she looked out and saw it for the first time, then "opened the door" next to her station and "hollered back there, `Someone call for a spill[.]'" It was while she was "in the act" of notifying her co-

worker that Rehn fell.

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Rehn argues that DeChamps or any other Chick-fil-A employee could and should have taken other steps to prevent the accident, including putting out a "wet floor" stanchion or guarding the spill until someone cleaned it up. The argument does not address the

central reason underlying the circuit court's decision to grant summary judgment

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