Thursday, March 24, 2022

Maryland Court of Special Appeals: Contributory Negligence as a Matter of Fact is Reserved for the Jury Despite Multiple Inferences of a Plaintiff’s Potential Negligence

Jacqueline Cador v. YES Organic Market Hyattsville Inc., No. 0898, September Term 2020. Opinion by Moylan, J. (Court of Special Appeals February 1, 2022).

In a recently published decision by the Court of Special Appeals, Maryland’s intermediate appellate court clarified the distinction between the evidentiary predicate requiring a finding of contributory negligence as a matter of law and the predicate allowing for a finding of contributory negligence as a matter of fact

On September 21, 2016, Jacqueline Cador ("Plaintiff") went shopping with her family in a grocery store owned and operated by Yes Organic Market Hyattsville Inc. ("Defendant"). It was near closing time and the floors had recently been mopped by an employee of the Defendant. Upon entering the store, the Plaintiff spent a few moments talking to an employee in the check-out area near a conspicuously placed sign reading "Caution: Wet Floor." Although the Plaintiff never acknowledged seeing this "Wet Floor" sign, she was standing very close to it when talking to the employee. The Plaintiff then proceeded to walk down an aisle and fell almost immediately after entering the aisle. Very close to the site of the fall, on the side of the aisle, was a yellow mop bucket. 

As a result of the fall, the Plaintiff required partial knee replacement surgery. The Plaintiff subsequently filed suit against the Defendant for negligence. Prior to trial, the Defendant filed a motion for summary judgment arguing the Plaintiff’s contributory negligence barred recovery. The Defendant argued that, based on the proximity of the Plaintiff to the "Wet Floor" sign after she first entered the store and the mop bucket near to where she fell, the Plaintiff must be deemed to have seen one or both of those objects and was thereby put on notice that the floor was dangerous. Accordingly, the Defendant reasoned that the Plaintiff had notice that heightened caution was necessary and that she failed to exercise that caution. The trial court agreed, concluding that the undisputed evidence showed that the Plaintiff was contributorily negligent by failing to exercise heightened caution when required.

The question raised on appeal was whether the existence of contributory negligence a question of law for the judge or a question of fact for the jury. The Court of Special Appeals cited to Menish v. Polinger Company, 277 Md. 553, 356 A.2d 233 (1976) in support of the proposition that knowledge of a dangerous condition may be imputed to a plaintiff when the supporting factual predicate is so "distinct, prominent and decisive" that reasonable minds could not differ with respect to its message. On the other hand, when the factual predicate is not unequivocal but emits permitted inferences in different directions, then a case of contributory negligence that satisfies the burden of production is not necessarily a case of contributory negligence as a matter of law. Id. at 563.

In the instant case, there was no direct evidence that the Plaintiff was aware that the floor was wet. However, the Court focused on whether the evidence permitted the inference that the Plaintiff should have been aware of the condition of the floor, given her proximity to the "Wet Floor" sign and the yellow mop bucket to where she fell. The Court also raised the question of who is entitled to draw such an inference — the Judge or the Jury.

The Court found that the existence of one "Wet Floor" sign at the entrance of the market was insufficient to warn customers of the wet condition of the floors throughout the store. But what about the yellow mop bucket right next to the spot where the Plaintiff fell? If reasonable minds could not differ that the evidence demonstrated (1) that the Plaintiff actually saw the yellow mop bucket, and (2) that observation communicated the message that the aisle floors were wet, then a finding of contributory negligence as a matter of law would be appropriate.

The Court cited a string of cases which held that “such failures to observe and to avoid are generally deemed to be questions of fact left to the jury.” G.C. Murphy Co. v. Greer, 75 Md. App. 399, 403 (1988); see also Chalmers v. Great Atlantic & Pacific Tea Co., 172 Md. 552, 558 – 59 (1957). Here, the inference that the Plaintiff must have seen the mop bucket was permitted even though she testified that she did not see it. However, that inference was for the jury to make, not the judge. With respect to the message communicated by that mop bucket, the message that the floor was recently mopped, and therefore wet, was one such conclusion that could have been drawn. On the other hand, another conclusion could be that the mop bucket was placed there in advance, waiting for the arrival of an employee to mop the aisle.

        Given the fact that multiple inferences were permitted, when considered in the light most favorable to the Plaintiff, a genuine dispute of material fact existed. Since reasonable minds could have differed as to whether the Plaintiff was put on notice that the floors were wet, the Court concluded that summary judgment on the issue of contributory negligence was not appropriate. Although the evidence permitted a finding of contributory negligence, that finding was for the jury to make and not the judge.

        - John K. Thompson, Associate Attorney

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