Criminal; Exigent Circumstances: Where the defendant’s former girlfriend told police he had broken into her home, was armed and had threatened to kill her, her family or law enforcement; the police found her credible and the defendant had a violent criminal history, exigent circumstances supported a warrantless request to the cell phone provider for a “ping” of defendant’s cell phone. United States v. Hobbs, No. 19-4419 (filed Feb. 1, 2022).
Attorney Discipline; Fifth Amendment: Where the Fifth Amendment is invoked by a party during pretrial discovery, but the party then desires to testify at trial on the same subject, the trial judge should generally allow the trial testimony, especially where there are no grounds for believing the opposing party was prejudiced. Attorney Grievance Commission of Maryland v. Malone, Misc. Docket AG No. 47, Sept. Term, 2022 (filed Jan. 31, 2022).
Attorney Discipline; Federal practice exception: Where a District of Columbia-admitted attorney whose office is in Maryland, but who is not licensed in Maryland, argued that the federal practice exception applies to all non-Maryland barred attorneys who are licensed in the District of Columbia, the court rejected this argument. Such an interpretation would expand the exception beyond its plain language, as well as its purpose and intent. Attorney Grievance Commission of Maryland v. Jackson, Misc. Docket AG No. 9, Sept. Term, 2020 (filed Jan. 31, 2022).
Criminal; Involuntary manslaughter: Where the defendant created conditions in his basement that severely impeded the decedent’s ability to report and escape from any potentially life-threatening situation, that supported the jury verdict for gross negligence involuntary manslaughter. Beckwitt v. State of Maryland, No. 16, Sept. Term, 2021 (filed Jan. 28, 2022).
Employment; Wage Act: Where a company promised payments to an employee in exchange for his continued employment, and the employee earned the payments before his employment ended, the payments were “wages” under the Maryland Wage Act. Playmark Inc. v. Perret, No. 0091, Sept. Term, 2020 (filed Jan. 28, 2022).
Negligence; Contributory negligence: Where a shopper who slipped and fell on a wet floor that had been recently mopped testified that she did not see a mop in the area of the fall, and it was unclear whether a reasonable shopper would have interpreted the mop to mean the floor was wet, summary judgment was improperly granted to the grocery store. Cador v. YES Organic Market Hyattsville Inc., No. 0898, Sept. Term, 2020 (filed Feb. 1, 2022).
Criminal
Exigent Circumstances
BOTTOM LINE: Where the defendant’s former girlfriend told police he had broken into her home, was armed and had threatened to kill her, her family or law enforcement; the police found her credible and the defendant had a violent criminal history, exigent circumstances supported a warrantless request to the cell phone provider for a “ping” of defendant’s cell phone.
CASE: United States v. Hobbs, No. 19-4419 (filed Feb. 1, 2022) (Judges King, Wynn, KEENAN)
FACTS: In this appeal, Erick Hobbs primarily challenges the district court’s denial of his motion to suppress evidence obtained after police collected cell phone location data from his cell phone provider without a warrant on the ground of exigent circumstances. In supplemental briefing on appeal, Hobbs argues that the district court erred in failing to comply with the requirements of the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), which was decided while this appeal was pending.
LAW: This court has not previously considered the exigent circumstances exception in the context of police use of a cell phone “ping” along with call logs from a suspect’s cell phone. The court finds instructive the Second Circuit’s analysis in United States v. Caraballo, 831 F.3d 95 (2d Cir. 2016).
There, after the defendant was suspected of murdering an informant working with law enforcement, the police obtained without a warrant a “ping” on the defendant’s cell phone. The murder victim, a fellow drug dealer, had informed police several months earlier that the defendant would kill her if he ever learned that she was cooperating with the police. The police also knew that the defendant had access to firearms and previously had committed certain violent crimes.
The Second Circuit concluded that exigent circumstances justified the officers’ failure to obtain a warrant for access to the defendant’s cell phone “pings.” The court observed that the officers (1) had “good reason to believe” that the defendant was armed, (2) were aware that he was the primary suspect in a brutal murder and (3) most importantly, had “specific reasons to think” that he would act to kill undercover officers and other informants who had infiltrated his drug operation.
Although the officers could have secured a warrant within about six hours, the defendant’s cell phone provider typically took multiple days to respond to a warrant seeking such information but would act immediately to comply with any “exigent” request for the same information. And finally, the court noted that police intrusion on the defendant’s privacy interests was relatively limited, because the officers’ use of the “pings” was “strictly circumscribed” and the officers located the defendant within two hours.
The same reasoning applies here. When Hobbs’ former girlfriend, Jaquanna Foreman, recounted Hobbs’ actions to the police, she was trembling and distraught, explaining that Hobbs was armed and had threatened to kill her, her minor daughter, other family members and any law enforcement officers who might try to apprehend him.
Foreman stated that Hobbs had brandished a handgun during the incident, owned an assault rifle and was “obsessed with firearms.” Before submitting the “exigent form” to T-Mobile, the officers confirmed that Hobbs had a violent criminal history, including convictions for robbery and attempted murder. After assessing that Foreman’s account was credible and observing the damage to her home, the officers had probable cause to conclude that Hobbs had broken into Foreman’s home and had committed an assault and a theft inside.
The record additionally shows that the extent of the intrusion on Hobbs’ privacy rights was reasonably confined to the exigency. Therefore the district court did not clearly err in finding that “the only way to get help from T-Mobile” in a timely fashion was by submitting an “exigent form.
Hobbs next argues that he is entitled to vacatur of his conviction because the indictment did not allege, and the jury was not instructed to find, that Hobbs knew he was a felon at the time of the offense, as required by Rehaif. Although it is undisputed that the district court erred in failing to instruct the jury on the mens rea required for a conviction under section 922(g), and that the indictment was defective for failing to allege this element of the offense, Hobbs has not established that these errors affected his substantial rights. Hobbs has failed to carry his burden of showing a reasonable probability that he would not have been convicted absent the Rehaif error.
For these reasons, the judgment of the district court is affirmed.
Attorney Discipline
Fifth Amendment
BOTTOM LINE: Where the Fifth Amendment is invoked by a party during pretrial discovery, but the party then desires to testify at trial on the same subject, the trial judge should generally allow the trial testimony, especially where there are no grounds for believing the opposing party was prejudiced.
CASE: Attorney Grievance Commission of Maryland v. Malone, Misc. Docket AG No. 47, Sept. Term, 2022 (filed Jan. 31, 2022) (Judges Getty, McDonald, Watts, Hotten, Booth, BIRAM, Gould).
FACTS: Edward Allen Malone was charged with violating multiple Maryland Lawyers’ Rules of Professional Conduct, or MLRPC. During pretrial discovery, Mr. Malone invoked the Fifth Amendment privilege against self-incrimination in response to two of bar counsel’s requests for production of documents, as well as every question asked at his deposition.
Bar counsel then filed a motion in limine seeking to preclude Mr. Malone from testifying at the upcoming evidentiary hearing on the alleged violations. The hearing judge found that Mr. Malone invoked the privilege against self-incrimination in bad faith at his deposition, and precluded him from testifying at the evidentiary hearing.
Following the evidentiary hearing, the hearing judge found that Mr. Malone violated the MLRPC. The hearing judge also concluded that bar counsel proved the existence of several aggravating factors, and that Mr. Malone failed to establish the existence of any mitigating factors.
This appeal raises two important questions. First, when a discovering party believes that a person has improperly invoked the Fifth Amendment to avoid answering a question in a deposition or to respond to a written discovery request, what relief may the party seek? Second, how should a trial judge in a civil case proceed when a party, who invoked the Fifth Amendment regarding a particular subject during pretrial discovery, subsequently indicates a desire to testify at trial on the same subject?
LAW: When a party in a civil action believes that a person has improperly invoked the Fifth Amendment privilege against self-incrimination to avoid answering a question in a deposition or to provide documents or other information in response to a discovery request, the Maryland Rules provide the discovering party with tools to obtain relief. After completing the deposition, the proponent of the question(s) that were not answered may file a motion under Maryland Rule 2-432(b) for an order compelling the deponent to answer the questions. Similarly, if a party fails to answer an interrogatory submitted under Rule 2-421 or fails to comply with a request for production or inspection under Rule 2-422, the discovering party may seek an order compelling discovery under Rule 2-432(b). At a hearing on the discovering party’s motion to compel, the hearing judge should determine whether the invocation of the Fifth Amendment was proper, on a question-by-question basis.
Where a deponent makes a blanket assertion at a deposition, it is incumbent upon the discovering party to ask the deponent questions sufficient to identify each topic or area of inquiry that the discovering party wants to cover at the deposition. The reviewing court then can determine on a question-by-question basis whether the deponent properly invoked the Fifth Amendment.
The court cannot discern from the record whether bar counsel intended to ask Mr. Malone about certain additional topics, but refrained from doing so after he said that he would assert the Fifth Amendment in response to every question. However, it is clear that bar counsel should have filed a motion to compel under Rule 2-432(b), rather than what was, in substance, an immediate motion for sanctions under Rules 2-432(a) and 2-433(a). Although bar counsel argues that the blanket assertion of the privilege brought this matter within the ambit of Rule 2-432(a), and permitted the imposition of immediate discovery sanctions, the court disagrees.
However, Mr. Malone did not object to bar counsel’s motion in limine on the ground that it was procedurally improper. He has thus waived or forfeited any complaint about bar counsel seeking and obtaining a discovery sanction without first moving for and obtaining an order compelling discovery.
Turning to the second question, where a litigant in a civil proceeding who has invoked the Fifth Amendment in pretrial discovery subsequently asks to withdraw the invocation and testify at trial, the trial court “should, in general, take a liberal view towards such applications, for withdrawal of the privilege allows adjudication based on consideration of all the material facts to occur.” The court “should be especially inclined to permit withdrawal of the privilege if there are no grounds for believing that opposing parties suffered undue prejudice from a litigant’s later-regretted decision to invoke the Fifth Amendment.”
Here, the hearing judge acted within his discretion to the extent he precluded Mr. Malone from testifying at the hearing concerning his alleged violations of the MLRPC. However, after careful review of the transcript of the hearing on the motion in limine, the court concludes that the hearing judge should not have precluded Mr. Malone from testifying concerning mitigating factors.
Turning to the merits, the hearing judge concluded by clear and convincing evidence that Mr. Malone violated several MLRPC rules. Mr. Malone has not specifically excepted to any of the hearing judge’s conclusions of law regarding Mr. Malone’s alleged violations of the MLRPC. The court agrees with the hearing judge’s determinations.
Attorney Discipline
Federal practice exception
BOTTOM LINE: Where a District of Columbia-admitted attorney whose office is in Maryland, but who is not licensed in Maryland, argued that the federal practice exception applies to all non-Maryland barred attorneys who are licensed in the District of Columbia, the court rejected this argument. Such an interpretation would expand the exception beyond its plain language, as well as its purpose and intent.
CASE: Attorney Grievance Commission of Maryland v. Jackson, Misc. Docket AG No. 9, Sept. Term, 2020 (filed Jan. 31, 2022) (Judges Getty, McDonald, Watts, Hotten, BOOTH, Biran, Raker).
FACTS: Bar Counsel alleged that Dawn Jackson, a lawyer admitted to the District of Columbia Bar who is not licensed in Maryland, violated numerous provisions of the rules of professional conduct. Bar counsel also charged Ms. Jackson with violating sections 10-206 and 10-601 of the Business Occupations and Professions Article, or BOP, of the Maryland Code.
The hearing judge concluded that Ms. Jackson violated Rule 5.5 by engaging in the unauthorized practice of law in Maryland. The hearing judge further concluded that there was insufficient evidence to establish violations of other rules or BOP §§ 10-206 and 10-601.
LAW: Ms. Jackson’s sole exception to the hearing judge’s factual findings in this matter relates to his finding that Ms. Jackson signed the lines requesting the reissuance of a summons in the Yenchochic case.
The court overrules Ms. Jackson’s exception. The court cannot say, on this record, that the hearing judge’s factual finding was clearly erroneous. Based upon the court’s review of the record, the hearing judge found Ms. Jackson’s testimony to be very reasonable and credible on every point, including her admission that the signature on these forms that were executed eight years prior to the hearing appeared to be hers.
The hearing judge concluded that the only violation that bar counsel established was a violation of Rule 5.5(a)—arising from Ms. Jackson filing two lines in the Yenchochic case requesting the reissuance of a summons. Ms. Jackson excepts to the hearing judge’s conclusion that she violated the rule at all.
The Maryland Rules require that “[e]very pleading and paper of a party represented by an attorney shall be signed by at least one attorney who has been admitted to practice law in this State . . . .” Ms. Jackson caused a line to be filed bearing her signature. Because this act of signing and filing the line constituted a violation of the Maryland Rules in violation of Rule 5.5(a), the court overrules her exception.
Turning to bar counsel’s charges that relate to Ms. Jackson’s practice generally, the hearing judge concluded that bar counsel had not proven that Ms. Jackson violated Rule 5.5 by generally engaging in the unauthorized practice of law. Bar counsel contends that the hearing judge erred by failing to conclude that Ms. Jackson actually engaged in the unauthorized practice of law. The court determines that bar counsel has failed to prove by clear and convincing evidence that Ms. Jackson engaged in the unauthorized practice of law through her performance of administrative functions related to the operation of the law firm
Bar counsel also asserts that the hearing judge erred in failing to conclude that Ms. Jackson held herself out to the public as being admitted to practice law in Maryland. The court finds that Ms. Jackson violated Rule 5.5(b)(2) in the 2014-15 time period by not placing jurisdictional limitations on her letterhead, business card, email signature and website. The court finds, however, that bar counsel failed to prove that the law firm signage or website established a violation of Rule 5.5(a) or (b). Nor will the court find a violation of Rule 5.5(a) or (b) based upon the fact that a third-party website, Avvo.com, did not specify Ms. Jackson’s jurisdictional limitation.
Finally, bar counsel asserts that the hearing judge erred in failing to conclude that Ms. Jackson violated Rule 5.5(b)(1) by maintaining an office in Maryland. Ms. Jackson contends that, by limiting her practice to cases and matters arising in the District of Columbia or other federal courts, she falls within the federal practice exception. The court declines to hold that the federal practice exception applies to all non-Maryland barred attorneys who are licensed in the District of Columbia. Such an interpretation would expand the exception beyond its plain language, as well as its purpose and intent. Bar counsel’s assertion that Ms. Jackson’s conduct in maintaining an office in this state was in violation of Rule 5.5(b)(1) is sustained.
Finally, bar counsel has filed exceptions to the hearing judge’s failure to conclude that Ms. Jackson’s physical presence in Maryland resulted in a violation of Rule 8.4(a), (b) (d) and BOP § 10-601. The court overrules these exceptions based upon the unique facts of this case, which includes knowledge by the office of bar counsel, and its express recommendations concerning how to maintain her office in a manner that purported to comply with the professional rules. And under the unique facts presented in this case, including that the hearing judge found the presence of nine mitigating factors, the court agrees with Ms. Jackson that no sanction is appropriate in this case.
Criminal
Involuntary manslaughter
BOTTOM LINE: Where the defendant created conditions in his basement that severely impeded the decedent’s ability to report and escape from any potentially life-threatening situation, that supported the jury verdict for gross negligence involuntary manslaughter.
CASE: Beckwitt v. State of Maryland, No. 16, Sept. Term, 2021 (filed Jan. 28, 2022) (Judges Getty, McDonald, WATTS, Hotten, Booth, Biran, Adkins).
FACTS: Twenty-one-year-old Askia Khafra died in a fire while trying in vain to escape from the reprehensible conditions of his workplace in the basement of his employer Daniel Beckwitt’s home. A jury found Beckwitt guilty of second-degree depraved heart murder and involuntary manslaughter. Beckwitt appealed, and the Court of Special Appeals held that the evidence was sufficient to support the conviction for gross negligence involuntary manslaughter but insufficient to support the conviction for depraved heart murder.
Beckwitt filed a petition for a writ of certiorari raising four issues—whether the circuit court lacked subject matter jurisdiction to enter a conviction on involuntary manslaughter due to old English statutes concerning a lack of liability for accidental fires, whether the evidence was sufficient to support the conviction for involuntary manslaughter, whether legal duty involuntary manslaughter is a lesser-included offense of depraved heart murder and whether the circuit court erred by failing to correctly instruct the jury on the elements of legal duty involuntary manslaughter. The state filed a conditional cross-petition, raising whether the evidence was sufficient to support the conviction for second-degree depraved heart murder.
LAW: Beckwitt’s contention concerning the English Fires Prevention (Metropolis) Act of 1774 and earlier statutes does not raise a question of subject matter jurisdiction. As such, Beckwitt was required to raise the issue in the circuit court to preserve the matter for appellate review. He did not. Accordingly his contention is not preserved for appellate review.
Even if the court were to reach the merits, it would conclude that old English statutes did not preclude Beckwitt’s prosecution or serve as a defense. Beckwitt was convicted because the evidence demonstrated that Beckwitt had created conditions in the basement that severely impeded Khafra’s ability to report and escape from any potentially life-threatening situation, which manifested a reckless or wanton disregard for Khafra’s life. There is nothing novel about an individual being prosecuted and convicted for a death resulting from an accidental fire where the individual created conditions that caused the death.
Beckwitt next contends that the evidence was insufficient to support a conviction for involuntary manslaughter under either a theory of gross negligence or a theory of legal duty. The court disagrees. The evidence was sufficient to establish gross negligence involuntary manslaughter because Beckwitt’s conduct constituted a departure from the conduct that any reasonable person would have taken under the circumstances and demonstrated a disregard of the consequences to Khafra. Additionally, and independently, the evidence was sufficient for the jury to have found beyond a reasonable doubt that Beckwitt failed to fulfill the legal duty to provide Khafra with a reasonably safe work environment and that the failure to do so was grossly negligent.
Beckwitt next argues that legal duty involuntary manslaughter is a lesser-included offense of depraved heart murder the jury instruction concerning the legal duty theory was flawed and his conviction for involuntary manslaughter must be reversed. It is not necessary to reach this issue.
The court has concluded that the evidence was sufficient to support Beckwitt’s involuntary manslaughter conviction under both a gross negligence and a legal duty theory. Moreover, the court affirms the Court of Special Appeals’s conclusion that the evidence was insufficient to sustain a conviction for depraved heart murder. Given these determinations, the court need not address Beckwitt’s contention that legal duty involuntary manslaughter is a type of gross negligence involuntary manslaughter and a lesser-included offense of depraved heart murder, or, for that matter, review the circuit court’s instruction as to legal duty involuntary manslaughter.
Nonetheless, to put to rest any lingering question about the integrity of Beckwitt’s conviction for involuntary manslaughter, the court determines that legal duty involuntary manslaughter is not a lesser-included offense of depraved heart murder, although gross negligence involuntary manslaughter is. The court further concludes that Beckwitt failed to preserve for appellate review his contention that the circuit court erred or abused its discretion by failing to instruct the jury as to all of the essential elements of legal duty involuntary manslaughter. If the issue were preserved, however, the court would conclude that legal duty involuntary manslaughter jury instruction given by the circuit court was a correct statement of law.
Finally, regarding the state’s cross-appeal, the court agrees with the Court of Special Appeals that Beckwitt’s conduct, although demonstrating a reckless disregard for human life, was “not the type of conduct that [was] likely, if not certain, to cause death, and thus does not rise to the level of opprobrious conduct that depraved heart murder proscribes—conduct that is so extreme in its disregard to human life that it may be deemed willful.” For all these reasons, the judgment of the Court of Special Appeals is affirmed.
Employment
Wage Act
BOTTOM LINE: Where a company promised payments to an employee in exchange for his continued employment, and the employee earned the payments before his employment ended, the payments were “wages” under the Maryland Wage Act.
CASE: Playmark Inc. v. Perret, No. 0091, Sept. Term, 2020 (filed Jan. 28, 2022) (Judges Berger, FRIEDMAN, Gould).
FACTS: James Perret entered into a contract to perform services for (AAA) Sport Systems Inc. AAA no longer exists, and its corporate successors, Playmark Inc. and Pro Recreation LLC, now seek to avoid paying him. Perret alleged that the missed payments were a breach of an executive management agreement, or EMA, and violated the Maryland Wage Act. Before trial, the circuit court dismissed Perret’s claim under the Wage Act.
After a two-day bench trial, the circuit court entered judgment for breach of contract in favor of Perret and against Playmark and Pro Rec for the five quarterly EMA payments that were then overdue. The circuit court also entered a declaratory judgment that Perret was entitled to receive the quarterly EMA payments from Playmark and Pro Rec going forward.
Playmark and Pro Rec noted timely appeals of the breach of contract and declaratory judgments. Perret noted a timely cross-appeal of the circuit court’s dismissal of his Wage Act claim.
LAW: In 2005, Jones and Rodowsky split all of AAA’s assets between the two new LLCs they created, Sportco and Sport Systems. Sportco received, among other things, AAA’s physical assets such as trucks and other equipment. AAA subsequently merged with and into Sportco. By statute, “[a] corporation or other entity surviving a merger” is a “successor” and “[t]he successor [in a merger] is liable for all the debts and obligations of each nonsurviving [entity].” Thus, as the “entity surviving a merger” with AAA, Sportco was liable for the debts and obligations of the nonsurviving entity, AAA.
At the time Jones and Rodowsky divided up AAA, Sport Systems was established to operate the business. Sport Systems received intangible assets from AAA, including its employees, contracts, clients and goodwill. At trial, Playmark and Pro Rec conceded that Sport Systems also succeeded AAA and that it had assumed AAA’s liabilities.
In 2017, Jones and Rodowsky began planning to split their shared interests in Sportco and Sport Systems into two new companies, Playmark and Pro Rec. The parties agree that “the undisputed evidence was that assets of Sport Systems . . . were divided between [Pro Rec] and Playmark.” Although there is no specific evidence of what Sport Systems was left with, the circuit court found that the transferred assets constituted “the bulk of the business.” Because Playmark and Pro Rec are successors to Sport Systems and that the two entities assumed Sport Systems’ liability to pay Perret, the circuit court’s decision is affirmed.
Playmark and Pro Rec argue that they cannot be considered successors to Sport Systems because Sport Systems “has never been sold and remains a viable Maryland limited liability company.” But there was substantial evidence in the record that the entity is functionally defunct. Playmark and Pro Rec also argue that because each company received 50% of Sport Systems’ assets, neither received 51%, which they take to be the minimum necessary to qualify as “substantially all of the assets.” However the requirement here is that “all or substantially all of the assets” are transferred from the predecessor corporation, not that “all or substantially all of the assets” are transferred to any given transferee.
The next and last question is whether Playmark and Pro Rec, as successors of Sport Systems, assumed liability for Sport Systems’ obligation to Perret. The circuit court found that they did, based upon credibility determinations that this court will not disturb. Having concluded both that Playmark and Pro Rec were successors to AAA, and that they assumed liability for the EMA, the circuit court’s finding that Playmark and Pro Rec are contractually obligated to make both the overdue and future EMA payments promised to Perret by their predecessor, AAA, is affirmed.
Turning to Perret’s argument that the circuit court erred in dismissing his claim under the Wage Act, the relevant question is whether the payments promised to Perret under the EMA constitute “wages,” subject to the Wage Act. The circuit court found that the payments were not wages and dismissed Perret’s claim pre-trial. This court disagrees. The EMA payments constitute “wages,” as they were (1) promised in exchange for employment and (2) fully earned before Perret’s employment ended. The court holds the EMA payments are wages, subject to recovery under the Wage Act, and that the circuit court erred as a matter of law in dismissing the claim.
Judgment of the circuit court is affirmed in part, reversed in part.
Negligence
Contributory negligence
BOTTOM LINE: Where a shopper who slipped and fell on a wet floor that had been recently mopped testified that she did not see a mop in the area of the fall, and it was unclear whether a reasonable shopper would have interpreted the mop to mean the floor was wet, summary judgment was improperly granted to the grocery store.
CASE: Cador v. YES Organic Market Hyattsville Inc., No. 0898, Sept. Term, 2020 (filed Feb. 1, 2022) (Judges Graeff, Shaw, MOYLAN).
FACTS: On Sept. 21, 2016, Jacqueline Cador, along with her husband and her daughter, went shopping in a grocery store owned and operated by Yes Organic Market Hyattsville Inc. While shopping, the plaintiff slipped and fell on a portion of the floor that had recently been mopped by an employee of the market.
The plaintiff sued the market for negligence. The market filed a motion for summary judgment based on the affirmative defenses of both contributory negligence and the assumption of risk. The trial judge granted the motion for summary judgment in favor of the market on both grounds.
LAW: The plaintiff slipped on an area of the floor that had recently been mopped. There was no direct evidence that the plaintiff was actually aware that the floor was wet. After falling, to be sure, she felt that the floor around her was, indeed, wet. The market’s theory of contributory negligence is based upon its argument that there were two warning signs from which knowledge might be imputed to the plaintiff that the floor was, indeed, wet.
Store video shows that, in the large and relatively open common area where cashiers and check-out counters are located, there was located (and visible on video) a formal warning sign alerting customers to the possible presence of a wet floor. The fall, however, did not occur in that area of the market where the check-out counters were located. A number of aisles radiated off that larger (almost lobby-like) epicenter of a check-out area. The actual fall occurred down one of those aisles, almost immediately after the plaintiff finished her conversation with the employee and proceeded down that aisle. The court agrees with the plaintiff that a single “Wet Floor” sign in the check-out area did not adequately warn all customers that the entire market was a “danger zone” from wet floors.
A second video from the store, however, shows something on the floor at the side of the aisle where the plaintiff fell. This court has viewed that video more than once and it is virtually impossible (for the court, at any rate) to determine just what that ambiguous object was. However the plaintiff’s husband testified to seeing a mop bucket near the aisle.
To accept the market’s theory of contributory negligence, the plaintiff actually must have seen the yellow mop bucket. The plaintiff testified that she did not see it. Nonetheless, the market argues that from its very positioning in her range of vision, the court may draw an inference that she must have seen what was there to be seen. But even in instances where the plaintiff actually walks into or trips over an item in the aisle of a grocery store, including objects squarely in the middle of the aisle, the cases generally do not hold that, as a matter of law, the plaintiff must be held to have seen the obstructing object. To be sure, the plaintiff may have seen it and a jury might so decide. It is, however, a question of fact for the jury, not a question of law for summary judgment.
Even having seen the yellow mop bucket, however, in and of itself establishes nothing. The abandoned mop bucket could actually be seen to have been the very antithesis of the “Wet Floor” sign, not a replication of it. The anti-contributory negligence inference, if any, could have been that the market did not consider it necessary to post a “Wet Floor” sign in the aisle in question, because the floor was not wet and slippery in that aisle. As it issued forth its multiplicity of messages for someone – judge or jury – to decipher, the yellow mop bucket was Hydra-headed, not monolithic. summary judgment was thus foreclosed.
Order granting summary judgment reversed and case remanded for trial.