Flaherty v. Legum & Norman Realty, Inc. , 281 F. App'x 232 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1507
RICHARD FLAHERTY, Individually, as Executor of the Estate of
Monica Flaherty, deceased, and on behalf of his minor
children,
Plaintiff - Appellant,
v.
LEGUM AND NORMAN REALTY, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:05-cv-01492-GBL)
Argued: May 14, 2008 Decided: June 11, 2008
Before MICHAEL and DUNCAN, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Jeremy T. Monthy, HOGAN & HARTSON, LLP, Washington, D.C.,
for Appellant. Garry Boehlert, WINSTON & STRAWN, LLP, Washington,
D.C., for Appellee. ON BRIEF: Robert B. Cave, Jake M. Shields,
HOGAN & HARTSON, LLP, Washington, D.C., for Appellant. Thomas M.
Buchanan, David C. Romm, WINSTON & STRAWN, LLP, Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Richard Flaherty (Flaherty), as executor of the estate of
his wife, Monica Flaherty (Mrs. Flaherty), and on behalf of himself
and his minor children, filed this wrongful death action against
Legum & Norman Realty Inc., manager of the Braemar Towers
Condominiums, a condominium complex in Ocean City, Maryland. The
Flahertys owned a unit (or condo) at the complex. Mrs. Flaherty
stayed at the condo from December 27-29, 2004. On January 7, 2005,
she was admitted into the hospital and diagnosed with Legionnaire’s
disease. She died three days later. Flaherty alleges that Mrs.
Flaherty’s Legionnaire’s disease and resulting death was caused by
the negligence of Legum & Norman in maintaining the common water
system at the condominium complex. After a period of discovery,
Legum & Norman made a motion for summary judgment, which was
granted by the district court. Flaherty appeals, and we affirm.
I.
Legionnaires’ disease is primarily caused by Legionella
pneumophila, a type of bacteria commonly found in natural fresh
water habitats and in human-made water systems. The bacteria pose
no threat in the low concentrations that occur naturally, but they
are hazardous when they propagate at high concentrations in human-
made water systems. Transmission to humans can occur, among other
ways, through aerosolized water droplets in a shower or hot tub.
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The condominium complex here, which has a common water system
serving all units, tested positive for Legionella when inspected in
late January 2005, after Mrs. Flaherty’s death. Flaherty alleges
that Mrs. Flaherty was exposed to Legionella at the family condo
and that Legum & Norman was negligent in failing to prevent
Legionella from propagating in the water system at the condominium
complex.
The district court granted summary judgment to Legum &
Norman on the ordinary negligence claim because Flaherty did not
establish the standard of care that a property manager must
exercise in maintaining a common water system in a large
residential complex. The court also concluded that the doctrine of
res ipsa loquitur did not apply because Flaherty could not
establish that Mrs. Flaherty’s illness would not have occurred in
the absence of Legum & Norman’s negligence. Finally, the
magistrate judge (1) denied Flaherty’s motion to take further
deposition testimony from a Legum & Norman representative and (2)
granted Legum & Norman’s motion for a protective order that barred
the additional deposition. The district court granted summary
judgment without considering Flaherty’s application for district
court review of the magistrate judge’s discovery order. Flaherty
appeals these issues.
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II.
In considering Flaherty’s ordinary negligence claim in
the summary judgment proceedings, the district court held that
“[t]he standard of care that Defendant Legum & Norman, a
professional management company, must exercise in maintaining [the
condominium complex’s] water system is beyond the knowledge and
experience of the average layman.” J.A. 1244. As a result, the
district court determined that the standard of care would have to
be established through a source such as expert testimony, industry
standards, or an applicable ordinance or statute. See, e.g., Cigna
Prop. and Cas. Cos. v. Zeitler, 730 A.2d 248, 258 (Md. Ct. Spec.
App. 1999). Because Flaherty did not meet his burden with respect
to establishing the standard of care, the district court concluded
that he could not prove a claim of ordinary negligence against
Legum & Norman.
The district court also analyzed Flaherty’s negligence
claim under the doctrine of res ipsa loquitur. In order to create
an inference of negligence under this doctrine, a plaintiff must
prove “(1) a casualty of a kind that does not ordinarily occur
absent negligence, (2) that was caused by an instrumentality
exclusively in the defendant’s control, and (3) that was not caused
by an act or omission of the plaintiff.” Holzhauer v. Saks & Co.,
697 A.2d 89, 93 (Md. 1997). The district court rejected Flaherty’s
claim under res ipsa loquitur because he did not proffer evidence
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to establish that the Legionella would ordinarily have been present
only through negligence.
After determining that there was no basis upon which
Flaherty could establish a negligence claim, the district court
awarded summary judgment to Legum & Norman. We affirm the summary
judgment determination substantially on the reasoning of the
district court. See Flaherty v. Legum & Norman Realty, Inc., No.
1:05-1492 (E.D. Va. Jan. 4, 2007) (mem. order).
III.
Flaherty also argues that the district court abused its
discretion by granting summary judgment without reviewing the
magistrate judge’s discovery order, which Flaherty challenged.
Before Legum & Norman filed its motion for summary judgment,
Flaherty moved to compel further deposition testimony by a
representative of Legum & Norman, and the company sought a
protective order. The magistrate judge denied the motion to compel
and issued the protective order. Flaherty sought district court
review of the magistrate judge’s order, arguing that a further
deposition would provide additional evidence to establish that
Legum & Norman violated its duty of care. Federal Rule of Civil
Procedure 56(f) requires that “summary judgment be refused where
the nonmoving party has not had the opportunity to discover
information that is essential to his opposition.” Nguyen v. CNA
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Corp., 44 F.3d 234, 242 (4th Cir. 1995) (quotation marks and
citation omitted). However, in his opposition to Legum & Norman’s
motion for summary judgment, Flaherty did not assert that he had
not obtained sufficient discovery from Legum & Norman. Rather,
Flaherty contended that he “ha[d] adduced in discovery and pre-
discovery investigations, and will present to the jury, more than
sufficient factual evidence to support [his] claims of negligence,
gross negligence, and punitive damages.” Opposition to Defendant’s
Motion for Summary Judgment at 1, Flaherty v. Legum & Norman
Realty, Inc., No. 1:05-1492 (E.D. Va. Aug. 4, 2006). Further,
summary judgment was granted because Flaherty did not make the
showing necessary to establish the relevant standard of care.
Flaherty offers nothing to suggest that further deposition
testimony from Legum & Norman would have assisted in establishing
the standard of care for maintaining a water system in a large
condominium (or residential) complex. Therefore, Flaherty was not
prejudiced because the district court did not rule on his
application for review of the magistrate judge’s discovery order,
and there was no abuse of discretion on the part of the district
court.
* * *
The judgment of the district court is
AFFIRMED.
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