In a noteworthy recent decision, the defense team at Setliff Law was instrumental in winning summary judgment in the U.S. District Court for the District of Maryland in a trip-and-fall case against a large national retailer. The court held in that case that under the undisputed facts, the alleged problem with the floor on which the plaintiff’s decedent fell was open and obvious and, therefore, not actionable. This decision adds to a growing body of precedent in Maryland holding that when a walking surface’s uneven or otherwise potentially hazardous condition is obvious to someone exercising ordinary care for his own safety, it does not provide a basis for a negligence claim.

In Estate of Mary Sue Welsh v. Michaels Stores, Inc., the plaintiff, the estate of the individual who allegedly fell and sustained injury, sued defendant Michaels Stores based upon an incident on February 29, 2016, in which the Estate’s decedent, Mary Sue Welsh, reportedly was injured when she fell to the floor inside Michaels’ retail store in Columbia, Maryland. The Estate alleged that the floor tile in the area where Ms. Welsh fell was “wavy, buckling and had on it multiple small obstructions.” Ms. Welsh was shopping alone at the time of the incident, and there was no evidence that anyone witnessed Ms. Welsh’s feet at the moment she fell or that anyone saw her strike the floor. There was also no video footage of the incident, as the place where Ms. Welsh fell was not within range of any of the store’s security cameras. There was also no evidence of anyone other than Ms. Welsh ever having fallen in the area near the Store’s exit. Additionally, following her fall Ms. Welsh told several people on different occasions that she did not know what had caused her to fall.

Among other things, Michaels argued that the only admissible evidence the Estate pointed to in support of its assertion regarding the floor’s allegedly dangerous condition was testimony from Ms. Welsh’s adult daughter, who testified that she had visited the store following her mother’s fall and observed some “wavy” tiles in the area where she believed her mother had fallen. Michaels pointed to the daughter’s testimony that the tiles’ purported condition was “obvious when [she] walked in[to]” the store, and it was “not hidden or obstructed by anything.” While the Estate cited that same testimony as support for its assertion that the floor was unsafe, Michaels cited it and the testimony of other witnesses, including its retained expert, to emphasize the open and obvious character of the alleged defect.

The court agreed with Michaels’ position. The presiding judge, the Honorable Catherine Blake, held the undisputed evidence showed that “any unevenness in the floor was immediately perceptible such that [Ms.] Welsh must be ‘charged with knowledge of its existence’ and deemed to have ‘consented to the risk.’” Estate of Welsh, slip op. at 13, quoting Gellerman v. Shawan Road Hotel Ltd. P’ship, 5 F. Supp.2d 351, 353 (D. Md. 1998). “Multiple witnesses, including [two of Ms. Welsh’s adult children] and [Michaels’ engineering expert] . . . testified that the unevenness in the floor was readily apparent and there [was] no evidence that anything obstructed [Ms.] Welsh’s view as she walked through the store.” Id., slip op. at 14, citing Locklear v. Walmart, Inc., No. CV DKC 19-0659, 2020 WL 4286830, *3 (D. Md. July 27, 2020).

The court’s decision cited other recent decisions from the District of Maryland holding “that under Maryland law, ‘minor variations in ground surface generally do not amount to unreasonable risks because pedestrians customarily and ordinarily expect to encounter such variations in terrain.’” Id., slip op. at 13, quoting Duncan-Bogley v. United States, 356 F. Supp.3d 529, 538-39 (D. Md. 2018). See Gellerman, 5 F. Supp.2d at 353-54; McManus v. Target Corp., No. CCB-18-1672, 2019 U.S. Dist. LEXIS 65834, *6, 2019 WL 1746696, *3 (D. Md. Apr. 17, 2019). Therefore, “as a matter of law a reasonable person in [Ms.] Welsh’s position exercising ordinary care would have recognized the condition and accounted for it. Thus, the condition was not the kind of hazard against which Michaels was obligated to protect [her], and Michaels [was] entitled to summary judgment.” Estate of Welsh, slip op. at 14. In other words, even if the floor was in the condition the Estate alleged, Ms. Welsh should have noticed it in the exercise of ordinary care for her own safety and her failure to do so relieved Michaels from any liability.

Estate of Welsh thus stands as another important development in Maryland’s jurisprudence on trip-and-fall claims. As a decision from a federal district court, it is not binding on Maryland’s state courts, but Estate of Welsh and other federal decisions like it nevertheless add to a growing body of highly persuasive precedent in Maryland that underscores the importance of establishing whether a putatively dangerous condition in a walking surface was open and obvious to a reasonable person exercising ordinary care for his own safety. Establishing the open-and-obvious character of a walking surface’s condition requires, at a minimum, the identification and thorough examination of fact witnesses, careful documentation (photographic and otherwise) of the surface’s condition at the time of the alleged incident, and a careful investigation by one or more qualified experts. The early involvement of legal counsel in the investigation is also important in order to ensure that all of the necessary steps in investigating the incident and in preserving evidence are taken. Premises owners should bear in mind that when dealing with a reported slip-and fall, it is never too early to involve counsel and appropriate experts. Fortifying the landowner’s position before it receives a settlement demand or is served with a lawsuit can often be the key to a successful defense of such claims.

If you have any questions concerning trip-and-fall claims generally or recent developments in the law in this area, please contact Kevin Streit (kstreit@setlifflaw.com) or Steve Setliff (ssetliff@setlifflaw.com) directly. Mr. Streit can also be reached at (804) 377-1270, and Mr. Setliff can be reached at (804) 377-1261.