Zilichikhis v. Montgomery County

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 388
September Term, 2014
RAFAIL ZILICHIKHIS, ET AL.
v.
MONTGOMERY COUNTY, MARYLAND,
ET AL.
Woodward,
Arthur,
Salmon, James P.
(Retired, Specially Assigned),
JJ.
Opinion by Arthur, J.
Filed: May 28, 2015
Appellant Rafail Zilichikhis slipped and fell inside a parking garage owned and
operated by Montgomery County. He and his wife brought an action against the County
and the private companies that operate or maintain the garage. The Circuit Court for
Montgomery County granted summary judgment on the grounds that the Zilichikhises had
produced no admissible evidence that any of the defendants had the requisite actual or
constructive knowledge of the slip-and-fall hazard and that the County enjoyed
governmental immunity with respect to its operation of the garage. We affirm.
F ACTUAL AND P ROCEDURAL B ACKGROUND
A. Slip and Fall Inside Garage 49
Dr. Rafail Zilichikhis and Mrs. Lubov Zilichikhis reside at the Metropolitan
Apartments at 7620 Old Georgetown Road in Bethesda. A public parking facility known
as Garage 49 or the Metropolitan Garage is located at the same address, underneath the
apartment building. Montgomery County owns and operates the garage as part of the
Bethesda Parking Lot District.
On the evening of June 21, 2011, Dr. Zilichikhis, who was 82 years old at the time,
parked his car in a handicapped parking spot near elevators on the ground level of Garage
49. He planned to drive his wife to a medical appointment the next morning. Some time
before 10:00 a.m. on June 22, 2011, Dr. Zilichikhis walked across the street to purchase a
newspaper. He then returned to the garage and walked toward his vehicle.
A short distance away from his parked car, Dr. Zilichikhis slipped and fell onto the
concrete surface. On the ground, he noticed a wet and greasy substance that he had not
previously seen. When he tried to stand up, he slipped and fell a second time. After
crawling out of the area, he was able to stand up and make his way to his vehicle.
A few minutes later, Mrs. Zilichikhis arrived at the passenger side of the vehicle,
walking from a different direction. Dr. Zilichikhis informed his wife that he had fallen
and injured himself on a slippery surface, in the area between the front driver’s side of the
vehicle and a nearby railing. She noticed that his knee was slightly bloody.
The Zilichikhises drove away and attended Mrs. Zilichikhis’s scheduled
appointment. Afterwards, they drove to the nearby residence of their daughter, Alona
Bauer. Dr. Zilichikhis soon began to complain of a severe headache. He was taken to a
hospital for emergency treatment, referred to a neurologist, and diagnosed with a subdural
hematoma that required immediate surgery. Dr. Zilichikhis continues to suffer various
impairments as a result of his traumatic brain injury.
The Zilichikhises’ other daughter, Irina Lotvin, is also a resident of the
Metropolitan Apartments. Ms. Lotvin returned to the garage after her father’s surgery on
the evening of June 22, 2011. She inspected an area that she believed to be the area in
which her father fell. Additional photographs of that same location were taken in July
and August of 2011 by Ms. Bauer and by an attorney for the Zilichikhises.
B. Complaint for Negligence and Loss of Consortium
In December 2011, Dr. Zilichikhis gave notice of a potential tort claim to the
County Executive for Montgomery County. See Md. Code (1974, 2006 Repl. Vol.), §
-2-
5-304 of the Courts and Judicial Proceedings Article.
On September 10, 2012, Dr. Zilichikhis and Mrs. Zilichikhis filed a complaint in
the Circuit Court for Montgomery County. The complaint asserted claims against a
number of defendants: Montgomery County, the owner of the garage; the Montgomery
County Department of Transportation, an agency charged with administering the parking
district; Penn Parking, Inc., the management company for the garage; and Colossal
Contractors, Inc., a company that performs cleaning services for the garage through a
contract with the County. The complaint asserted that Dr. Zilichikhis was entitled to
recover for his injuries and that Mrs. Zilichikhis was entitled to recover for loss of
consortium.1
Each of the defendants filed an answer denying liability. The County raised the
affirmative defense of governmental immunity and asserted that the County lacked any
actual or constructive knowledge of the dangerous condition.2 Colossal Contractors
asserted, among other things, that it did not have any “reasonable notice” or any
“opportunity to cure or warn” of the condition that allegedly caused the slip and fall.
1
Originally, the complaint also asserted claims against Chipotle Mexican Grill,
Inc., which operates a nearby restaurant. The complaint alleged that Chipotle had
contributed to the hazard through its disposal of grease and cooking oil. After an analysis
of Dr. Zilichikhis’s soiled clothing determined that he had probably fallen on motor oil,
the Zilichikhises voluntarily dismissed all claims against Chipotle with prejudice.
2
The County had first moved to dismiss the complaint on the grounds that it
possessed governmental immunity and that the Department of Transportation lacked the
capacity to be sued. The court denied this motion without prejudice.
-3-
In addition to answering the complaint, Colossal Contractors filed cross-claims
against the County, the Department of Transportation, and Penn Parking, seeking
indemnity and contribution, as well as attorney’s fees and costs. Penn Parking responded
by filing its own cross-claim, seeking indemnity and contribution from Colossal
Contractors.
C. Motions for Summary Judgment
After extensive discovery, the County filed a motion to dismiss and for summary
judgment on December 4, 2013. The County argued that the court should dismiss the
claims against the Montgomery County Department of Transportation because the
Department did not have the capacity to be sued. The County also argued that there was
no factual dispute that it operated the garage in a governmental capacity and thus that it
was immune from liability. See Bagheri v. Montgomery Cnty., 180 Md. App. 93, cert.
denied, 406 Md. 112 (2008).
The County further argued that the Zilichikhises had no evidence that it had the
requisite actual or constructive knowledge of the dangerous condition in time to remedy
the condition before Dr. Zilichikhis’s fall. See, e.g., Joseph v. Bozzuto Mgmt. Co., 173
Md. App. 305, 315 (2007) (quoting Rehn v. Westfield America, 153 Md. App. 586, 593
(2003), cert. denied, 380 Md. 619 (2004)) (to sustain a cause of action in a premises
liability case, the plaintiff “must prove not only that a dangerous condition existed but
also that the [defendants] ‘had actual or constructive knowledge of the dangerous
-4-
condition and that the knowledge was gained in sufficient time to give [them] the
opportunity to remove it or to warn the [plaintiff]”). Soon thereafter, Colossal
Contractors and Penn Parking also moved for summary judgment on the ground that those
defendants had no actual or constructive knowledge of the hazard.
Collectively, the defendants argued that the Zilichikhises had no evidence that the
motor oil spill existed for any period of time sufficient for the defendants to protect Dr.
Zilichikhis or to warn him of the danger. The defendants pointed out that Dr. Zilichikhis
did not see any oil in the area when he parked his car the previous evening. They
emphasized that Dr. Zilichikhis had touched and smelled the oil after his fall, and he
described it as “fresh.”3 They further contended that there was no evidence that any of
the defendants created the motor oil spill or actually knew of its existence.
D. Opposition to Summary Judgment
On December 27, 2013, the Zilichikhises responded to each of the defendants’
motions. The Zilichikhises argued that they had established factual disputes as to whether
the defendants knew or should have known of the hazardous condition. They relied upon
affidavits from Ms. Lotvin and another resident, which stated that before June 2011
Garage 49 was always dirty and that the parking surface was often slippery. They also
relied upon deposition testimony from Mrs. Zilichikhis, in which she stated that she had
3
In his deposition, Dr. Zilichikhis explained that he was familiar with the smell
and texture of motor oil from his experiences as a professional taxi and limousine driver.
-5-
complained to Penn Parking attendants about the general condition of the garage before
the accident. In addition, the Zilichikhises pointed to communications from County
representatives after the accident, which indicated that the County was aware of problems
with grease and water infiltration in the garage (though not at the specific site where Dr.
Zilichikhis fell).
Central to the Zilichikhises’ opposition to summary judgment was their argument
that the defendants “need not have knowledge of the specific oil spot on which [Dr.]
Zilichikhis fell,” but rather that the defendants “need only be on notice of the dangerous
condition in general.” But see Maans v. Giant of Maryland, L.L.C., 161 Md. App. 620,
637-40, cert. denied, 388 Md. 98 (2005) (rejecting the proposition that a plaintiff need not
prove notice if the proprietor could reasonably anticipate that hazardous conditions would
regularly arise because of the manner in which the owner or occupier regularly does
business). The Zilichikhises argued that each of the defendants should have known about
recurring spills that frequently created slippery conditions, but that the defendants did
nothing to remedy that problem.
The Zilichikhises also contended that there were unresolved factual issues material
to the County’s defense of governmental immunity. They argued that the County could
not assert governmental immunity because they had adduced evidence that the parking
garage was used as a “walkway, footway, or public way.” See Higgins v. City of
Rockville, 86 Md. App. 670, 679, cert. denied, 323 Md. 309 (1991) (“a municipality has a
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‘private proprietary obligation’ to maintain its streets, as well as the sidewalks, footways
and the areas contiguous to them, in a reasonably safe condition”). The Zilichikhises
submitted affidavits from two residents of the Metropolitan Apartments, who stated that
they frequently or occasionally walked through the parking garage because the garage
served as a convenient route to exit the apartment building, and that they had never been
asked to stop walking through the garage.
The Zilichikhises’ memorandum suggested that Dr. Zilichikhis was no longer a
reliable witness. They characterized his deposition testimony as “jumbled, confusing, and
unreliable in some regards due to his injuries, his inability to hear properly, and because
of [] translation from English to [his native] Russian.”
E. Supplemental Response and Accompanying Affidavits
On February 7, 2014, just six days before a scheduled hearing on the summary
judgment motions, the Zilichikhises filed supplemental responses in opposition to the
defendants’ motions. Among other things, the Zilichikhises submitted a set of undated
photographs accompanied by two affidavits. The photographs depicted several dark
stains on a concrete surface, extending across a parking space and a walkway that was
painted with yellow lines, near a set of steps and a ramp set off by handrails.
A new affidavit from Ms. Lotvin stated:
In the evening on June 22, 2011, I visited the area where my
father fell and took several pictures, copies of which are
appended . . . . The photographs were taken approximately
eight hours after my father fell.
-7-
The photographs are true and accurate copies of the
photographs I took on June 22, 2011. They fairly and
accurately depict the scene of my father’s fall at the time the
photographs were taken . . . .
Ms. Lotvin’s affidavit did not disclose any basis to conclude that she had personal
knowledge that the photographs depicted the actual location where her father had fallen.
Nor did the affidavit disclose any basis to conclude that she had personal knowledge of
the condition at that location at the time her father fell eight hours before.
The second new affidavit came from Dennis R. Andrews, Ph.D., safety engineer
who had previously offered an expert opinion that Dr. Zilichikhis would not have been
injured if the parking garage surface had been maintained properly. Dr. Andrews offered
a number of opinions based on his review of the photographs taken by Ms. Lotvin,
including the following opinion:
The size, shape, nature, condition, and location of the motor
oil, and the similar conditions located nearby in the
photographs, indicate that the hazard has been present in that
area for a significant period of time, very likely longer than
36-48 hours.
The size, shape, nature, condition, and location of the motor
oil, particularly given its close proximity to a set of stairs and
handicapped parking spaces, indicate that the hazard would
have and should have been recognized on any routine
inspection or walk-through of the garage.
The County filed a reply on February 10, 2014. The County argued that,
notwithstanding the submissions in the supplemental opposition, the Zilichikhises still
had no competent evidence that the County had constructive knowledge of the oil spill.
-8-
The County pointed out that Dr. Zilichikhis himself never testified that the newly-
disclosed photographs depicted the condition of the garage at the time of his fall. The
County also argued that Dr. Andrews’s expert opinion on the duration of the spill was
“inherently untrustworthy, speculative, and therefore, inadmissible.”
F. Circuit Court’s Summary Judgment Ruling
After being rescheduled because of a blizzard, the summary judgment hearing was
held on February 26, 2014. In an oral ruling, the court granted each of the defendants’
motions.
The court concluded, first, that the Zilichikhises had no evidence that the
hazardous condition existed for any significant period of time before the fall. The court
reasoned that, without any such evidence, the Zilichikhises could not prove that the
defendants had notice of the hazard.
The court rejected any arguments based on the newly-disclosed photographs,
because the Zilichikhises had laid no foundation to show that the photographs depicted
the actual site of the fall. The court observed that Dr. Zilichikhis had testified at his
deposition that he fell in a parking space, not in the pedestrian walkway with yellow,
painted lines that was depicted in the photographs. The court also observed that Mrs.
Zilichikhis, in her deposition, had testified that her husband had said that he fell in a
parking space, not in a walkway with painted lines. In view of that testimony, the court
asserted, “There is not even any evidence that this oil spot is the spot that we’re talking
-9-
about.” Consequently, the court reasoned that the Zilichikhises had not adduced a
sufficient basis to admit the expert opinion based on those photographs.4
Turning to the issues that pertained specifically to the County, the circuit court
concluded that the County was immune because it operated the garage in a governmental
rather than a proprietary capacity. The court rejected the Zilichikhises’ argument that Dr.
Zilichikhis fell in a public walkway where governmental immunity did not apply, because
the deposition testimony established only that Dr. Zilichikhis slipped and fell in a parking
space.5
On March 4, 2014, the court entered orders granting summary judgment in favor of
the County, Penn Parking, and Colossal Contractors. Although the grant of summary
judgment eliminated any grounds for the cross-claims that Penn Parking and Colossal
Contractors had asserted, the court did not formally dispose of those claims.
After the court denied the Zilichikhises’ motion for reconsideration, the
Zilichikhises filed a timely notice of appeal.
4
The court also voiced concerns about the expert’s qualifications and expressed
skepticism about whether any expert “from a photo, could make any type of forensic
claim as to how long the spill or spot has been there.”
5
The court also concluded that the Montgomery County Department of
Transportation lacked the capacity to be sued and later entered an order dismissing the
Department with prejudice. The Zilichikhises have not challenged that ruling.
-10-
F INALITY AND A PPEALABILITY
By statute, a party generally may appeal only from a final judgment entered in a
civil case. See Md. Code (1974, 2013 Repl. Vol.), § 12-301 of the Courts and Judicial
Proceedings Article. One of the necessary elements of a final judgment is that the order
must adjudicate or complete the adjudication of all claims against all parties. See, e.g.,
Waterkeeper Alliance, Inc. v. Maryland Dep’t of Agric., 439 Md. 262, 278 (2014)
(quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989)). Because the absence of a final
judgment may deprive a court of appellate jurisdiction, we can raise the issue of finality
on our own motion. See Waterkeeper, 439 Md. at 276 n.11.
An order that adjudicates the rights of fewer than all of the parties, including rights
under cross-claims or third-party claims, is not an appealable final judgment. See Md.
Rule 2-602(a); see also Estep v. Georgetown Leather Design, 320 Md. 277, 286-87
(1990) (dismissing appeal where court had decided plaintiff’s claims against defendant,
but had not decided defendant’s third-party claim against third-party defendant). If the
court has not adjudicated a defendant’s cross-claims or third-party claims, the judgment is
not final, and is not appealable, even if those claims have become “groundless” because
of the entry of judgment against the plaintiff. Estep, 320 Md. at 286. Until the circuit
court has properly disposed of all claims “in existence” in the case, it has not entered a
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final, appealable judgment. See id. at 287.6
Nonetheless, in one narrow exception to the final judgment rule, a court may direct
“the entry of a final judgment . . . as to one or more but fewer than all of the claims or
parties” if it “expressly determines in a written order that there is no just reason for
delay.” Md. Rule 2-602(b). Similarly, if a party has filed a notice of appeal before the
entry of final judgment, but the trial court would have had discretion to enter a judgment
under Rule 2-602(b), this Court may have discretion to enter a final judgment on its own
initiative. See Md. Rule 8-602(e)(1)(C).7
In the instant case, the court did not enter an appealable final judgment, because it
never formally adjudicated the cross-claims that Colossal Contractors and Penn Parking
had asserted. See Estep, 320 Md. at 286-87. Nevertheless, had any of the parties
requested the entry of judgment under Rule 2-602(b), the circuit court could reasonably
have concluded that it had no just reason to delay the entry of a final judgment as to the
6
For an extensive discussion of the mechanism for properly disposing of claims,
including the requirements of a separate document reflecting the judgment and an
accurate public record of the judgment in the court’s docket, see Hiob v. Progressive
American Insurance Co., 440 Md. 466 (2014).
7
Before exercising its discretion to invoke the savings provision of Rule 8-602(e),
the appellate court must determine that the trial court could have directed the entry of a
final judgment not disposing of the entire action. See Doe v. Sovereign Grace Ministries,
Inc., 217 Md. App. 650, 664, cert. denied, 440 Md. 116 (2014). Our discretion to enter a
final judgment pursuant to Rule 8-602(e)(1)(C) is no broader than that of the circuit court
under Rule 2-602(b). For instance, this Court does not have power to enter a final
judgment if a trial court had discretion to certify a judgment but the trial court expressly
refused to do so. See Addison v. Lochearn Nursing Home, LLC, 411 Md. 251, 264 (2009)
(citing Brown & Williamson Tobacco Corp. v. Gress, 378 Md. 667, 682 (2003)).
-12-
Zilichikhises alone – i.e., that it had no just reason to delay the entry of final judgment “as
to one or more but fewer than all of the . . . parties.” Md. Rule 2-602(b)(1). Otherwise,
the appeal could not proceed until Penn Parking and Colossal Contractors had somehow
resolved their cross-claims, which would be difficult for them to do without prejudicing
their rights.
For example, if Penn Parking and Colossal Contractors had attempted to resolve
the cross-claims by dismissing them with prejudice, they risked losing the ability to
reassert the cross-claims against one another in case an appellate court reversed the entry
of summary judgment against the Zilichikhises on appeal. On the other hand, if Penn
Parking and Colossal Contractors had attempted to resolve the cross-claims by dismissing
them without prejudice, with the express or implicit understanding that they could reassert
the cross-claims if an appellate court reversed the entry of summary judgment against the
Zilichikhises, they might leave themselves open to an argument that the appeal should be
dismissed because they had improperly circumvented the final judgment rule. See Miller
& Smith at Quercus, LLC v. Casey PMN, LLC, 412 Md. 230, 252-53 (2010).
Furthermore, if the cross-claims included contractual claims for indemnification of
defense costs as well as damages, it might be impossible to liquidate the claims and to
quantify the full extent of a party’s liability until the appeal had been concluded. Indeed,
if the appellate court had reversed the entry of summary judgment, it might be impossible
to liquidate those cross-claims until after further proceedings had occurred on remand and
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on a subsequent appeal.
In analogous circumstances, where the circuit court entered summary judgment
against the plaintiff, but did not dispose of a third-party claim against a third-party
defendant, the Court of Appeals exercised its discretion under Rule 8-602(e)(1)(C) to
entertain the appeal. See Shofer v. Stuart Hack Co., 324 Md. 92, 98 (1991); see also
Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 204 (3d Cir. 2006) (holding, under
analogous federal rule, that district court did not abuse discretion in certifying summary
judgment order as partial final judgment, where there were unresolved claims, including
cross-claim for indemnity, and appellate determination on underlying action could moot
“derivative” indemnity claim). Here, too, because the circuit court could have exercised
its discretion under Rule 2-602(b) to enter a final judgment as to the Zilichikhises, we
hereby enter a final judgment as to the Zilichikhises, but not as to the unadjudicated
cross-claims asserted by Colossal Contractors and Penn Parking. See Shofer, 324 Md. at
98.
Q UESTIONS P RESENTED
The Zilichikhises contend that the circuit court made a number of errors in
granting summary judgment. Their brief raises several issues and sub-issues, which we
have consolidated and restated in this form:
I. Did the circuit court err in determining that it was undisputed that
Dr. Zilichikhis’s fall occurred in a parking space, rather than a
pedestrian walkway?
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II. Did the circuit court err in ruling that certain photographs and an
expert opinion based on those photographs were not admissible?
III. Did the circuit court err in concluding that the Zilichikhises produced
no evidence sufficient to show that the defendants had constructive
knowledge of the slip-and-fall hazard?
IV. Did the circuit court err in concluding that Montgomery County
possessed governmental immunity with respect to the parking
garage? 8
As explained in this opinion, the court did not err. The Zilichikhises attempt to
8
The issues presented in the appellants’ brief are:
A. Whether the trial court erred by resolving genuine disputes of
material fact on summary judgment
B. Whether the trial court erred by granting the county governmental
immunity despite the county deriving significant revenue and profit
from the operation of the Bethesda Parking Lot District
C. Whether the trial court erred by finding, as a matter of law, that
Parking Garage 49 is not a public way despite its consistent use for
that purpose by members of the public
D. Whether the trial court erred by finding that appellants failed to
present a genuine dispute of material fact on the issue of appellees’
actual and/or constructive notice of the slip-and-fall hazard
E. Whether the combination of Garage 49’s perpetual dangerous
condition and Penn Parking’s failure to perform contractually-
mandated daily inspections of constitutes constructive notice of the
subject hazard
F. Whether Maryland should adopt a limited “mode-of-operation” rule
for slip-and-fall cases where the subject hazard is recurring and
foreseeable
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generate factual disputes by relying on submissions that the circuit court, for various
reasons, could not have considered as part of the summary judgment ruling: interrogatory
answers that were not made under oath on the basis of the personal knowledge of a
competent witness, photographs of a location that was never identified by a witness with
personal knowledge of the specific site of the accident, an expert opinion based on those
photographs, and one page from a Montgomery County budget document that was first
submitted to the court on reconsideration. None of these submissions were sufficient to
generate a genuine dispute of material fact on the issues of constructive knowledge and
governmental immunity.
D ISCUSSION
When a party moves for summary judgment, the court “shall enter judgment in
favor of or against the moving party if the motion and response show that there is no
genuine dispute as to any material fact and that the party in whose favor judgment is
entered is entitled to judgment as a matter of law.” Md. Rule 2-501(f).
The issue of whether a trial court properly granted summary judgment is a question
of law. Butler v. S & S P’ship, 435 Md. 635, 665 (2013) (citation omitted). In an appeal
from the grant of summary judgment, this Court conducts a de novo review to determine
whether the circuit court’s conclusions were legally correct. See D’Aoust v. Diamond,
424 Md. 549, 574 (2012). The relevant inquiry is well known:
When reviewing a grant of summary judgment, we determine
whether the parties properly generated a dispute of material
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fact and, if not, whether the moving party is entitled to
judgment as a matter of law. This Court considers the record
in the light most favorable to the nonmoving party and
construe[s] any reasonable inferences that may be drawn from
the facts against the moving party. A plaintiff’s claim must
be supported by more than a scintilla of evidence[,] as there
must be evidence upon which [a] jury could reasonably find
for the plaintiff.
Blackburn Ltd. P’ship v. Paul, 438 Md. 100, 107-08 (2014) (citations and quotation
marks omitted).
“Before turning to the questions of law, we must first decide whether the [c]ircuit
[c]ourt properly determined that no genuine dispute of material fact exists.” O’Connor v.
Baltimore Cnty., 382 Md. 102, 110-11 (2004). In this appeal, the Zilichikhises assert that
the record reflects factual disputes regarding the location of the accident, whether the oil
spill existed for a significant period of time before the accident, and whether the County
generates profit from the operation of the garage. In considering each of these arguments,
we are mindful of the requirement that, “[t]o properly oppose a motion for summary
judgment, the facts presented must not only be detailed but also admissible in evidence.”
O’Connor, 382 Md. at 111 (citing Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737
(1993)); see Hamilton v. Kirson, 439 Md. 501, 521 n.11 (2014) (“‘in order to pass muster
at a summary judgment proceeding, the opponent must produce evidence that would be
admissible at trial’”) (citation omitted).
I. Absence of Factual Dispute Regarding Location of Accident
The Zilichikhises’ first contention is that the court improperly resolved a disputed
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factual issue when “the trial court found that Dr. Zilichikhis fell in a parking spot, as
opposed to on a walking path within the garage.” This purported “dispute” centers on
conflicting descriptions of the accident that the Zilichikhises provided at different times.
The Zilichikhises argue that the court erred by accepting their deposition testimony that
Dr. Zilichikhis fell in a parking spot, because an interrogatory answer indicated that his
fall occurred on a painted walkway adjacent to a parking spot.9
In the Zilichikhises’ view, the location of the motor oil spill was material both to
the defendants’ constructive knowledge of the hazard and the County’s governmental
immunity. They theorize that, from the mere existence of an oil spill within a walkway,
the jury could infer that patrons would have reported it immediately. They also theorize
that the County enjoys no immunity for the maintenance of pedestrian walkways through
a public garage. Their arguments fail because they had no admissible evidence that Dr.
Zilichikhis fell anywhere other than in a parking spot.
At his deposition, Dr. Zilichikhis testified that he was “relatively close” to his car,
about “ten meters” from the vehicle, when he fell in the parking garage. When asked
whether he was walking in a parking spot when he fell, Dr. Zilichikhis answered, yes. He
9
The interrogatory answers were attached to the motion from Colossal
Contractors, but the Zilichikhises did not rely upon the interrogatory answers in arguing
before the circuit court that Dr. Zilichikhis fell in a walkway. We will address the issue
anyway to explain why the result would be the same even if this issue had been properly
preserved. See Beyer v. Morgan State Univ., 139 Md. App. 609, 636 (2001), aff’d, 369
Md. 335 (2002).
-18-
added that his wife arrived five minutes later, but he could not remember whether he
showed her the area where he fell.
In her deposition, Mrs. Zilichikhis testified that, when she arrived at the car, her
husband pointed to the area in which he had fallen, between a railing and the driver’s side
door of the car. When asked whether her husband told her that “he fell in the parking
space,” she too answered in the affirmative. Mrs. Zilichikhis specifically denied that the
area “had hatched painted lines on the floor of the garage” like those that appear in the
photographs that her daughter later took.10
Nearly six months before those depositions, the Zilichikhises submitted answers to
interrogatories from Colossal Contractors. One interrogatory asked Dr. Zilichikhis to
provide a concise statement of the slip-and-fall incident. The answer included this
statement:
Plaintiff utilized the designated walking paths (which are
bounded by support railings) from the elevators towards his
vehicle. When Plaintiff reached the opening in the support
railings, he stepped onto the parking surface to walk the few
feet to the driver’s side front door of his vehicle, which was
parked directly adjacent to a walking path which was painted
with yellow diagonal lines.
As Plaintiff approached the driver’s side front door of his
vehicle on the walking path, he slipped on a wet, greasy
10
None of the parties have discussed the evidentiary basis for admitting Mrs.
Zilichikhis’s hearsay statements about what her husband said to her about where he fell.
If the Zilichikhises could lay a proper foundation, Dr. Zilichikhis’s statements to his wife
would arguably be admissible under the hearsay exception for excited utterances. See
Md. Rule 5-803(b)(2).
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substance (later determined to be both water and motor oil) he
had not seen and of which he was unaware. . . .
The Zilichikhises now argue that this interrogatory answer provides a basis to
conclude that Dr. Zilichikhis fell on a walking path. They contend that the court was
required to consider the answers to interrogatories as part of the record, because Colossal
Contractors attached the interrogatory answers to its motion. For several reasons, we
conclude that these answers were defective and, consequently, insufficient to create any
genuine dispute of material fact.
In determining the existence of a factual dispute, “[i]nitially, we need to determine
the record that may properly be considered on this summary judgment motion.”
Imbraguglio v. Great Atl. & Pac. Tea Co., Inc., 358 Md. 194, 201 (2000). Maryland Rule
2-501 sets forth certain requirements for a party’s response to a summary judgment
motion:
(b) Response. A response to a written motion for summary
judgment shall be in writing and shall (1) identify with particularity
each material fact as to which it is contended that there is a genuine
dispute and (2) as to each such fact, identify and attach the relevant
portion of the specific document, discovery response, transcript of
testimony (by page and line), or other statement under oath that
demonstrates the dispute. A response asserting the existence of a
material fact or controverting any fact contained in the record shall
be supported by an affidavit or other written statement under oath.
(c) Form of Affidavit. An affidavit supporting or opposing a
motion for summary judgment shall be made upon personal
knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated in the affidavit.
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The party opposing the motion for summary judgment must demonstrate the
existence of a genuine dispute as to a material fact “‘by producing factual assertions,
under oath, based on the personal knowledge of the one swearing out an affidavit, giving
a deposition, or answering interrogatories.’” Reiter v. ACandS, Inc., 179 Md. App. 645,
660 (2008), aff’d sub nom. Reiter v. Pneumo Abex, LLC, 417 Md. 57 (2010) (quoting
Miller v. Ratner, 114 Md. App. 18, 27 (1997)) (emphasis from Miller). For this reason, a
party’s interrogatory answers are insufficient to generate a genuine issue of fact if those
answers are “made ‘to the best of [the witness’s] information, knowledge and belief,’
rather than on the basis of personal knowledge.” 104 W. Washington St. II Corp. v. City
of Hagerstown, 173 Md. App. 553, 573 (2007) (citing Fletcher v. Flournoy, 198 Md. 53,
58 (1951)); see also Lowman v. Consol. Rail Corp., 68 Md. App. 64, 73-74 (1986).
The interrogatory answers at issue were accompanied by the following affirmation:
I hereby affirm under the penalties of perjury that the facts
contained in the foregoing responses are true and accurate to
the best of my knowledge, information and belief.
/signature/[11]
RAFAIL ZILICHIKHIS
By: Lubov Zilichikhis, Power of Attorney
On its face, this affirmation, on “knowledge, information and belief,” does not
generate a genuine issue of fact. 104 W. Washington St., 173 Md. App. at 573.
One interrogatory did ask that Dr. Zilichikhis provide the names of anyone with
11
The actual signature is not legible.
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“personal knowledge regarding the subject matter of any of the facts of allegations.” The
answer stated: “Plaintiff, Rafail Zilichikhis, whose knowledge is disclosed throughout
these responses.” Still, even if we generously construe the answer describing the fall as a
statement based on Dr. Zilichikhis’s personal knowledge (rather than on his “knowledge,
information, and belief,” as indicated by the affirmation at the end of the document), the
fact remains that Dr. Zilichikhis himself did not affirm that his answers were true. The
signature line indicates that Mrs. Zilichikhis signed the affirmation on his behalf, acting
through a power of attorney. Because Dr. Zilichikhis did not personally affirm the
accuracy of his answers, the document is not sufficient to generate any genuine issues of
material fact. See Cottman v. Cottman, 56 Md. App. 413, 430 (1983) (holding that
factual assertions contained in answers to interrogatories did not create genuine issues of
fact, because the answers were made by party’s attorney without party herself swearing to
the accuracy of the statements).
In addition, to defeat a properly-supported motion for summary judgment, a sworn
written statement should include language to verify that the witness is competent to
testify. See Halliday v. Sturm, Ruger & Co., Inc., 138 Md. App. 136, 153 (2001), aff’d,
368 Md. 186 (2002); see also Webb v. Joyce Real Estate, Inc., 108 Md. App. 512, 520
(1996) (quoting A.J. Decoster Co. v. Westinghouse Elec. Corp., 333 Md. 245, 263
(1994)); see also Reeves v. Howar, 244 Md. 83, 89 (1966) (holding that affidavit was
insufficient to defeat summary judgment where affiant averred that he was “confident,”
-22-
rather than “competent,” to testify). Here, however, the interrogatory answers included
no affirmative statement that Dr. Zilichikhis was competent to testify to the facts
described in the answers. If anything, the document indicated that Dr. Zilichikhis was not
competent to testify, because Mrs. Zilichikhis signed the statement for him, purportedly
under her power of attorney. Indeed, the Zilichikhises created even graver doubts about
Dr. Zilichikhis’s competence at the hearing, by referring to his “diminished capacity” and
submitting that “he is not competent to testify always” and no longer “competent to testify
as to [certain] things.” 12
In sum, the answers to interrogatories did not affirmatively show that Dr.
Zilichikhis made the statements under oath on the basis of personal knowledge or that he
was competent to testify to those matters. Without compliance with those basic
evidentiary rules, the Zilichikhises could not establish that, if called as a witness at trial,
Dr. Zilichikhis would testify to the same facts set forth in the interrogatory answers. See
Imbraguglio, 358 Md. at 207. Moreover, Mrs. Zilichikhis cannot affirm that the answers
accurately reflect her husband’s personal knowledge any more than she could testify in
court as to what her husband personally observed. In these circumstances, the circuit
court did not err when it disregarded the interrogatory answers in its summary judgment
12
When the court asked how the Zilichikhises intended to make their case, counsel
stated: “We can put him on the stand and then have Mrs. Zilichikhis testify as to whether
or not that is what . . . she was told directly after the fall.” The Zilichikhises appear not to
have considered whether or how Mrs. Zilichikhis could testify about what her husband
told her. See supra n. 9.
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ruling.
The only remaining evidence regarding the location of the accident, the sworn
deposition from Dr. Zilichikhis and Mrs. Zilichikhis, established without contradiction
that the fall occurred in a parking space within the garage. In the absence of any
competent evidence to the contrary, the court was correct when it stated that it was
“undisputed that [Dr. Zilichikhis] walked across a parking space” when he fell.
II. Inadmissibility of Photographs and Expert Opinion Testimony
As previously stated, in supplemental responses in opposition to summary
judgment, the Zilichikhises submitted a set of photographs that depicted several dark
stains on a concrete surface of a garage. In an accompanying affidavit, Ms. Lotvin, one
of the Zilichikhises’ daughters, stated that she took the photographs on the evening of
June 22, 2011, when she “visited the area where [her] father fell . . . approximately eight
hours after [her] father fell.” Although she did not disclose how she had acquired
personal knowledge of the precise location where her father fell or of how it looked at the
time of the fall, Ms. Lotvin asserted that the photographs “fairly and accurately depict the
scene of [her] father’s fall at the time the photographs were taken.” Based on his review
of the photographs, the Zilichikhises’ expert submitted an affidavit stating that the stains
were from motor oil that had been on the floor “for a significant period of time, very
likely longer than 36-48 hours[.]”
In this appeal, the Zilichikhises contend that these submissions are evidence that
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the motor oil spill was present in the garage for about 28 to 40 hours before it caused Dr.
Zilichikhis to slip and fall. They further argue that the court improperly resolved factual
issues when it “offered its own critique of the photographs.” The Zilichikhises, however,
have failed to address a litany of comments made by the trial court regarding the lack of
foundation for admission the photographs.
At the hearing, the court asked the Zilichikhises’ attorney to point out “in any
deposition where any witness identified any of these [photographs].” Counsel responded
that the photographs had not been “available” during the depositions even though they
purportedly had been taken by Ms. Lotvin on the evening of the accident. The court
ultimately reasoned that Dr. Zilichikhis was “the only one [who] can [identify the spot]
under the facts and circumstances of this case.”
Colossal Contractors contends that the photographs were inadmissible because the
Zilichikhises had no testimony to establish that the area depicted in the photographs was
actually the site of the accident. Colossal Contractors argues: “Ms. Lotvin’s testimony
that these photographs fairly and accurately show the condition of the garage floor eight
hours after her father’s fall does not establish the condition of the floor at the time of her
father’s fall.”
We agree that a photograph “‘can be made part of the motion [for summary
judgment] only through affidavit, deposition, or answers to interrogatories that adequately
lay the proper foundation for the document’s admission into evidence.’” Imbraguglio,
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358 Md. at 203-04 (quoting Paul V. Niemeyer & Linda M. Schuett, Maryland Rules
Commentary 332 (2d ed. 1992)); cf. Halliday, 138 Md. App. at 153 (noting that party did
not lay proper foundation for photograph submitted in support of summary judgment
motion, but holding that objection to admissibility was not preserved).
The Zilichikhises have never adequately explained the basis for their assertion that
these photographs “depict the scene of Dr. Zilichikhis’ fall.” Ms. Lotvin’s affidavit
merely stated, in a conclusory fashion, that the photographs depict “the area where [her]
father fell.” Yet, by her own admission, she was not present at the time of the fall. Her
affidavit included no explanation of how she could identify the exact location of the fall
eight hours later. Whether at the summary judgment hearing, in their motion for
reconsideration, in their appellate brief, or in their reply brief, the Zilichikhises still have
offered no explanation for Ms. Lotvin’s personal knowledge of the location of the fall.
In their reply brief, however, the Zilichikhises do suggest one basis for admitting
the photographs into evidence. Instead of attempting to explain Ms. Lotvin’s knowledge
of the location of the fall, the Zilichikhises rely entirely on Dr. Zilichikhis’s interrogatory
answer, which indicated that the accident occurred near a parking spot directly adjacent to
a walking path painted with yellow diagonal lines. They argue, “[t]he photographs depict
the exact scene described in Dr. Zilichikhis’s interrogatory response, the walking path on
which Dr. Zilichikhis fell, and the substance on which Dr. Zilichikhis fell and its
location.” As explained previously, however, substantive defects in these interrogatory
-26-
answers made that document inadequate in opposing the summary judgment motions.
Consequently, the Zilichikhises did not introduce any admissible evidence to support a
finding that the photographs depicted the site of the fall.13
Because the Zilichikhises did not establish a proper foundation for admitting the
photographs as evidence of the location of Dr. Zilichikhis’s fall, they also failed to
establish a foundation for expert opinion testimony about what is depicted in those
photographs. Generally, an expert’s opinion has no probative force unless there is a
legally sufficient factual basis upon which to support the conclusions. See Carter v.
Shoppers Food Warehouse MD Corp., 126 Md. App. 147, 155-59 & n.9 (1999) (holding
that, before granting summary judgment, circuit court did not err in excluding safety
expert’s opinion about tripping hazard, where expert’s investigation was limited to
testimony of an interested party and cursory examination of site long after accident).
An expert’s opinion is irrelevant, and thus inadmissible, if the opinion pertains to
facts not in evidence. See Attorney Grievance Comm’n v. Johnson, 409 Md. 470, 504
(2009); Hartless v. State, 327 Md. 558, 580-81 (1992) (citing Waltermeyer v. State, 60
13
In a reply brief, the Zilichikhises now assert that the circuit court in fact never
ruled that the photographs were inadmissible but instead the court “discredited” their
photographic evidence. They refer to the judge’s comment that the photographs “don’t
impress the court.” Immediately after that remark, however, the judge asked the
Zilichikhises to explain how they expected “to get that testimony in.” In light of the
court’s emphatic ruling that “[t]here is not even any evidence that this oil spot is the spot
that we’re talking about[,]” we reject their argument that the court considered the
photographs to be admissible.
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Md. App. 69, 80 (1984) (holding that trial court did not err in excluding expert’s opinion
about individual’s state of mind where opinion was based on assumptions that were not
borne out by other facts in evidence)); see also Md. Rule 5-104(b) (“[w]hen the relevance
of evidence depends upon the fulfillment of a condition of fact, the court shall admit it
upon, or subject to, the introduction of evidence sufficient to support a finding by the trier
of fact that the condition has been fulfilled”). Accordingly, even assuming that the safety
expert could opine that the substance shown in the photographs was motor oil that had
been on the floor for some time, the factfinder would still have no adequate basis to
conclude that the photographs depicted the site of Dr. Zilichikhis’s fall.14
In summary, neither the photographs nor the expert opinion based on those
photographs was part of the record that was properly considered on summary judgment.
The court, therefore, did not err in declining to consider the photographs and the expert
testimony based thereon.
III. Insufficient Evidence of Constructive Knowledge
Having determined that there were no genuine disputes of material fact, we now
turn to the question of whether the moving parties were entitled to judgment as a matter
14
The Zilichikhises complain that the circuit court “disregarded Dr. Andrews’
testimony sua sponte.” Contrary to this contention, the County promptly raised the issue
of the admissibility of the expert testimony at the first opportunity to do so, in a reply to
the Zilichikhises’ supplemental opposition. Moreover, the court may make legal
determinations on the admissibility of expert testimony as part of a ruling on a summary
judgment motion, even without the need for a separate motion in limine. E.g. Hamilton v.
Kirson, 439 Md. 501, 521 n.11 (2014).
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of law.
“Summary judgment is appropriate if the nonmoving party has failed to make a
sufficient showing of an essential element of [its] case with respect to which [it] has the
burden of proof.” Cent. Truck Ctr., Inc. v. Cent. GMC, Inc., 194 Md. App. 375, 386
(2010) (citations and internal quotation marks omitted). “Any theory of liability sounding
in negligence is predicated on the existence of the following elements: ‘(1) that the
defendant was under a duty to protect the plaintiff from injury, (2) that the defendant
breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss
or injury proximately resulted from the defendant’s breach of the duty.’” Warr v. JMGM
Group, LLC, 433 Md. 170, 181 (2013) (quoting Valentine v. On Target, Inc., 353 Md.
544, 549 (1999)). The circuit court here concluded that, even assuming that each of the
defendants owed a duty to Dr. Zilichikhis, the summary judgment record did not show
that any of the defendants breached their respective duties to him.
Generally, to sustain a cause of action in a premises liability case, the plaintiff
“must prove not only that a dangerous condition existed but also that the [defendants]
‘had actual or constructive knowledge of the dangerous condition and that the knowledge
was gained in sufficient time to give [them] the opportunity to remove it or to warn the
[plaintiff].’” Joseph v. Bozzuto Mgmt. Co., 173 Md. App. 305, 315 (2007) (quoting Rehn
v. Westfield America, 153 Md. App. 586, 593 (2003), cert. denied, 380 Md. 619 (2004)).
When a customer alleges that a business proprietor breached a duty of care, “‘[t]he burden
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is upon the customer to show that the proprietor . . . had actual or constructive
knowledge’ that the dangerous condition existed.” Rehn, 153 Md. App. at 593 (quoting
Moulden v. Greenbelt Consumer Servs., Inc., 239 Md. 229, 232 (1965)). “In terms of
constructive knowledge, moreover it is necessary for the plaintiff to show how long the
dangerous condition has existed.” Joseph, 173 Md. App. at 316.
For this reason, an entity charged with failing to maintain premises in a reasonably
safe condition is entitled to summary judgment in its favor if it neither created nor
actually knew of the hazard, and if there is no evidence showing that the hazardous
condition existed long enough for that party to remedy the hazard or warn of its existence.
See Joseph, 173 Md. App. 315-19 (property owner and manager entitled to summary
judgment where plaintiff slipped and fell on oily substance on stairs of apartment
building, where plaintiff produced no evidence showing how long substance was on
stairs); Rehn, 153 Md. App. at 599-600 (companies in charge of maintaining and
performing cleaning services for mall food court entitled to summary judgment where
only evidence regarding amount of time spill was on floor was restaurant employee’s
testimony that it was less than four minutes).
On its own, the testimony that Dr. Zilichikhis slipped and fell on a spot of motor
oil inside a parking garage does not generate an issue of fact as to a defendant’s
negligence. See Lexington Market Auth. v. Zappala, 233 Md. 444, 445-46 (1964). The
plaintiff in that case testified that she slipped and fell on a spot of oil or grease in a
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self-service parking garage, but that she did not see any oil when she first parked in the
space or when she returned less than two hours later and attempted to enter the vehicle
from the passenger side. Id. at 445-46. The Court held that this evidence was insufficient
to show that the proprietor had actual or constructive knowledge of the oil spill:
For all we know, the oil or grease may have leaked from a car
occupying the space beside her car, only a few moments
before she returned. . . . It may well be that a garage keeper
should anticipate that oil or grease may occasionally leak
from parked cars, but he is not an insurer and we think it
would be unreasonable to hold that it is his duty to
continuously inspect and sand down any and all leakage as
soon as it occurs, even if we assume that periodic inspections
are necessary.
Id. at 446.
In their initial response to the summary judgment motion, the Zilichikhises
contended that Maryland law did not require them to produce any evidence that the motor
oil spill had existed for any length of time before Dr. Zilichikhis’s fall. With their
supplemental responses, they made a belated attempt to submit the expert’s opinion that,
based on the photographs, a spill had been present for up to 40 hours before the fall. As
previously explained, however, the Zilichikhises did not present the photographs or the
opinion derived from those photographs in an admissible form.
The only other testimony concerning the duration of the oil spill came from Dr.
Zilichikhis’s deposition, in which he stated that the oil appeared to be “fresh.” He further
testified: “There is no way for me to know when that oil got there.” This testimony is
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plainly insufficient to make out a case of constructive knowledge. See Joseph, 173 Md.
App. at 318 (emphasizing that appellant’s testimony that appellant had no idea how long
greasy substance was on floor before appellant’s slip and fall “shed no light . . . on any
actual or constructive knowledge”); see also Zappala, 233 Md. at 445-46 (stating that,
“[f]or all we know, the oil or grease may have leaked from a car occupying the space
beside her car, only a few moments before she returned”).
Instead of the requisite evidence that the defendants had actual or constructive
notice of the spill at the specific place where Dr. Zilichikhis fell, the Zilichikhises attempt
to rely on other contentions. Pointing to deposition testimony and affidavits from
residents, they argue: “Appellants offered evidence that Garage 49 was ‘perpetually dirty’
with ‘many oil stains, slicks, and puddles throughout’ . . . and that Penn [Parking] failed
to perform mandatory daily inspections of Garage 49 to locate hazards[.]” Neither type of
evidence, however, is sufficient to show that any of the defendants had constructive
knowledge of the motor oil spill that caused Dr. Zilichikhis’s fall.
On the issue of inspections, the Zilichikhises invoke dicta from Smith v. City of
Baltimore, 156 Md. App. 377, 384 (2004), in which this Court quoted Keen v. City of
Havre de Grace, 93 Md. 34, 39 (1901), for the proposition that landowners “‘cannot fold
their arms and shut their eyes and say they have no notice.’” From that language, the
Zilichikhises would extract a duty to use due care in inspecting for dangerous conditions,
as well as an inference of constructive notice if the owner did not discover such a
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condition.
Smith, however, specifically rejected that proposition. Referring to Keen’s
warning that landowners cannot fold their arms and close their eyes, this Court stated:
This language cannot be read out of context; and when read in
context does not impose a duty on municipalities to conduct
regular inspections of their roadways. Rather, the language
explains the circumstances in which municipalities will be
found to be on constructive notice of defects in their
roadways, and the rationale underlying the concept of
constructive notice.
Smith, 156 Md. App. at 385.
Neither Keen nor Smith permits an inference of constructive notice merely because
an owner allegedly fails to use due care in inspecting for dangerous conditions. In Keen
the Court of Appeals identified a jury question of constructive notice when the plaintiff
tripped and fell in a dangerous hole in a sidewalk that had been there for as much as three
weeks, Keen, 93 Md. at 40, a sufficient amount of time for a jury to infer that the city had
become aware of the hole. By contrast, in Smith, this Court affirmed the entry of
summary judgment against plaintiffs who conceded that they had no direct evidence as to
how or when the defect had arisen. Smith, 156 Md. App. at 385. In reaching its decision,
the Smith Court rejected the proposition that the City was “deemed” to have constructive
knowledge of dangerous conditions because of an alleged failure to conduct routine
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inspections. Id. at 386.15
One year after Smith, this Court again rejected the proposition that a jury can infer
constructive notice from an alleged failure to conduct reasonable inspections. Maans v.
Giant of Maryland, L.L.C., 161 Md. App. 620, cert. denied, 388 Md. 98 (2005). In that
case, Ms. Maans slipped on liquid spilled near the checkout line of a grocery store. Id. at
623-24. Lacking evidence of the duration of the spill, Maans argued that the store had
constructive knowledge of the slippery condition, because the store could not show when
the area had been last inspected; the store did not specifically assign an employee to look
for spills; Maans fell near a cashier’s work station; and the cashier had never been told to
watch for hazards near her register. Id. at 630. In other words, Maans contended that
constructive knowledge “may be proven by introduction of evidence that, prior to the
accident, [a] defendant failed to make reasonable inspection of the premises.” Id. at 632.
This Court disagreed. We explained that, even assuming that Giant had failed to
make reasonable inspections, Maans still “failed to produce any evidence that had Giant
made reasonable inspections prior to the accident it would have discovered the water on
the floor in time to prevent the accident.” Id. at 632. Echoing the reasoning of Zappala,
15
Smith suggested that a jury might infer constructive notice if a defect was “such
that one reasonably could infer from its mere existence that citizens would have
immediately reported it to the City authorities.” Smith, 156 Md. App. at 386. The Court
gave no examples of such defects, but they certainly would not include oil spills in
municipal garages, which, as often as not, may be beneath parked cars and concealed
from view. See Zappala, 233 Md. at 446.
-34-
we commented: “For all that was shown by appellant, the water could have been spilled
by a customer seconds before her fall.” Id. The same is true as to the oil in this case.
As an alternative position, Maans urged this Court to reject the requirement that a
business proprietor have actual or constructive pre-injury notice of a defect, and instead
adopt a “mode-of-operation” rule. Maans, 161 Md. App. at 636-37 (collecting cases).
“Under the mode-of-operation rule, ‘the plaintiff is not required to prove notice if the
proprietor could reasonably anticipate that hazardous conditions would regularly arise,’
based on the manner the owner/occupier regularly does business.” Id. at 637 (citation
omitted). This Court rejected the invitation to eliminate the requirement of actual or
constructive knowledge:
Doing away with the requirement that the invitee must prove
how long the dangerous condition existed pre-injury is the
functional equivalent of doing away with the requirement that
the plaintiff prove that the defendant’s negligence was the
proximate cause of the plaintiff’s injury. This case illustrates
that point. Without “time on the floor” evidence, the
storekeeper would be potentially liable even though there is
no way of telling whether there was anything Giant could
have done that would have avoided the injury.
Maans, 161 Md. App. at 640; see also Joseph, 173 Md. App. at 316-17.
Notwithstanding the Zilichikhises’ argument that a handful of states other than the
21 states cited in Maans have since adopted the mode-of-operation rule in some form, we
see no reason to abandon the reasoning of Maans.
IV. County’s Governmental Immunity for Parking Garage
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Independent of the issue of constructive knowledge, the circuit court also
concluded that Montgomery County was entitled to judgment on the ground that it
possessed governmental immunity in its operation of the public parking garage. The
circuit court reasoned that this Court’s opinion in Bagheri v. Montgomery County, 180
Md. App. 93, cert. denied, 406 Md. 112 (2008), was directly on point. On the record in
this case, we reach the same conclusion.
Under Maryland common law, a local government is immune from tort liability
when it functions in a “governmental” capacity, but it enjoys no such immunity when it is
engaged in activities that are “proprietary” or “private” in nature. See Mitchell v. Hous.
Auth. of Baltimore City, 200 Md. App. 176, 186 (2011). “‘[T]here is no universally
accepted or all-inclusive test to determine whether a given act of a municipality is private
or governmental in its nature, but the question is usually determined by the public policy
recognized in the jurisdiction where it arises.’” Rios v. Montgomery Cnty., 386 Md. 104,
128 (2005) (quoting Mayor & City Council of Baltimore v. Blueford, 173 Md. 267, 275-
76 (1937)). Guidelines from the Court of Appeals establish that the activity of a local
government is considered governmental in nature “‘[w]here the act in question is
sanctioned by legislative authority, is solely for the public benefit, with no profit or
emolument inuring to the municipality, and tends to benefit the public health and promote
the welfare of the whole public, and has in it no element of private interest[.]’” Rios, 386
Md. at 128-29 (quoting Blueford, 173 Md. at 276).
-36-
Applying that test in Bagheri, 180 Md. App. at 96-97, this Court held that
Montgomery County enjoyed governmental immunity in connection with its operation of
a parking garage in the Bethesda Parking Lot District. In that case, Ms. Bagheri alleged
that she tripped and fell on an improperly maintained concrete floor within a parking
garage in Bethesda owned and operated by Montgomery County. Id. at 95. We recited
the following facts relevant to the immunity analysis:
All funds collected from the operation of the garage are
applied to the Bethesda Parking Lot District Fund and are
used to pay principal and interest on any outstanding bonds
issued to acquire, build, restore, or improve parking facilities
within the parking District. Any balance remaining after such
payments is used by the County to acquire, build, maintain or
operate off-street parking facilities and to reimburse the
County for the general revenues advanced to the parking
District. In the event that a balance remains after all these
payments, the County’s Director of Finance must hold such
surplus funds until the next fiscal year and then apply them in
the same manner as current revenues are applied. The
parking garage in question does not operate for profit nor was
it designated to operate at a profit.
Id. at 95-96.16
In the instant case, Montgomery County supported its summary judgment motion
with an affidavit from the Chief of the Division of Parking Management. The affidavit
stated that Garage 49, like the other garages owned by the County, “does not operate for
profit nor was it designated to operate at a profit.” Citing section 60-16 of the
16
Ms. Bagheri had agreed that it was undisputed that the County generated no
profit from the parking garage in that case. See Bagheri, 180 Md. App. at 95 & n.1.
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Montgomery County Code, the affiant explained that funds collected from Garage 49 are
directed only toward off-street parking facilities in the Bethesda Parking Lot District or
toward other transportation-related purposes, and that any surplus funds must be held and
applied to subsequent fiscal years.
Notwithstanding that Garage 49 is created by the same legislative scheme at issue
in Bagheri, the Zilichikhises assert that the County in fact generates millions of dollars in
annual revenue through parking fees and fines and that the County regularly transfers
large sums to the County’s general fund. As the sole basis for their assertions, the
Zilichikhises refer to one page from a budget document that, they say, evidences the total
revenues and transfers from the Bethesda Parking Lot District since 2006.17
Whatever the materiality of the information in this budget document, the document
itself never became part of the summary judgment record. Under Maryland Rule
2-501(b), the party opposing summary judgment has the responsibility in its written
response to “identify with particularity each material fact as to which it is contended that
there is a genuine dispute” and to specify the evidence that demonstrates the dispute. But
although the Zilichikhises said that they received the budget document in discovery, they
did not attach it to any of the several papers that they filed in opposition to the summary
17
The Zilichikhises do not appear to appreciate that “revenues” are not the same as
“profits.”
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judgment motions.18
It was only during the motions hearing that the Zilichikhises first disputed the
factual assertion that the County generates no profit from the garage. Although the court
allowed counsel to argue that the operation of the garage was a proprietary function, the
transcript gives no indication that the court received or reviewed any additional exhibits
before issuing its ruling. To the contrary, the Zilichikhises first submitted the budget
document as an exhibit to a motion for reconsideration, and it has made its way into the
appellate record only as an exhibit to that motion. The Zilichikhises have not argued that
the court abused its discretion in declining to accept any exhibit during the hearing, nor
have they argued that the court abused its discretion in denying their motion for
reconsideration. Under the circumstances, the information concerning the parking district
funds was not properly before the court at the time of summary judgment. See Steinhoff
v. Sommerfelt, 144 Md. App. 463, 483-84 (2002) (explaining that appellant did not
preserve contention first raised in a motion to alter or amend, where appellant also
refused to specify whether appeal was taken from underlying judgment or from denial of
motion to alter or amend).
Moreover, even if the Zilichikhises had attached the document to their opposition
18
The Zilichikhises had over a year to prepare to address the issue of governmental
immunity. The Zilichikhises received notice that the County intended to rely on the
defense of governmental immunity when the County first moved to dismiss the complaint
on October 19, 2012; when the County filed an answer on March 12, 2013; and when the
County moved for summary judgment on December 4, 2013.
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to the summary judgment motion, they still failed to establish any foundation for the
document’s admission into evidence. The Zilichikhises point to no formal admissions,
stipulations, deposition testimony, or affidavit showing the authenticity or relevance of
the document. Attaching documents in connection with a motion for summary judgment
“is no more acceptable than standing up in open court and attempting to offer the same
documents into evidence without a witness or a stipulation.” Paul V. Niemeyer & Linda
M. Schuett, Maryland Rules Commentary 355 (3d ed. 2003); see Imbraguglio, 358 Md. at
202-04 (holding that unsworn statement of witness attached to interrogatory answer was
not properly part of summary judgment record in absence of supporting affidavit, even
though statement was furnished during discovery); Diffendal v. Kash & Karry Serv.
Corp., 74 Md. App. 170, 181 (1988) (holding that transcript of conversation was not
properly before court on summary judgment motion in absence of sworn statement from
authenticating witness). Making only bare assertions that the “information was
undisputed,” the Zilichikhises suggest no possible basis for admitting the document into
evidence.19
Consequently, the County’s affidavit that the parking garage “does not operate for
profit nor was it designated to operate at a profit” constituted the only evidence properly
considered on that point. The record reflects no genuine factual dispute, and so we must
19
For instance, the Zilichikhises have advanced no argument that the document
was self-authenticating. See generally Md. Rule 5-902.
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arrive at the same conclusion reached in Bagheri.
The Zilichikhises nonetheless raise a secondary argument, similar to an argument
we rejected in Bagheri. Ms. Bagheri had contended that “the act of operating and
maintaining a parking garage was a proprietary function because ‘the site of the
occurrence in the subject parking garage was an area of public travel’ and therefore
[Montgomery] County was not immune from suit.” Bagheri, 180 Md. App. at 97-98. We
reject the contention in this case, because the Zilichikhises did not even have any
evidence that the fall occurred in an “area of public travel.”
Under a longstanding rule of Maryland common law, a local municipality “is not
immune from a negligence action arising out of its maintenance of its public streets and
highways.” Higgins v. City of Rockville, 86 Md. App. 670, 678, cert. denied, 323 Md.
309 (1991). Instead, “a municipality has a ‘private proprietary obligation’ to maintain its
streets, as well as the sidewalks, footways and the areas contiguous to them, in a
reasonably safe condition.” Id. at 679 (citations omitted). Under this line of cases, “a
municipality may be responsible for protecting individuals who are physically within the
bounds of a public way from hazards caused by the governmental entity which come from
outside the boundaries of the public way onto the public way that could have and should
have been foreseen and prevented by the governmental agency.” Mayor & City Council
of Baltimore v. Whalen, 395 Md. 154, 167 (2006). For instance, in Higgins, we held that
the City of Rockville was not immune from liability for injuries caused by a cable strung
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across a driveway, where the driveway was used by vehicles and pedestrians as a “service
access road” connecting a highway to athletic fields behind a school. See Higgins, 86
Md. App. at 673-74, 685-86.
In Bagheri, 180 Md. App. at 100-02, we rejected an appellant’s invitation to
extend this immunity exception to include a public parking garage whose operation
otherwise met the definition of a governmental function. We noted that Ms. Bagheri’s
accident “occurred nowhere close to a driveway or access road[,]” and that she did not
assert that the garage “constituted either a street, sidewalk, or a footway[,]” nor did she
contend “that the accident occurred on a public way.” Id. at 101. Likening the parking
garage to other areas of frequent pedestrian travel, id. at 101-02 (citing Heffner v.
Montgomery Cnty., 76 Md. App. 328 (1988) (courthouse lobby); Burns v. Mayor & City
Council of Rockville, 71 Md. App. 293 (1987) (aisle of theater)), we reasoned that there
was no justification “to greatly expand the ‘street, sidewalk, footway’ exception to the
usual rule” of governmental immunity. Bagheri, 180 Md. App. at 102.
The Zilichikhises’ argument is only marginally less expansive than the contention
that we rejected in Bagheri. They rely on affidavits from two residents who stated that
they frequently or occasionally used the garage as a walking route from the Metropolitan
Apartments to nearby streets. They compare this “walking route” to “a public way
through a park, . . . [which] involves an exemption from [governmental] immunity.”
Higgins, 86 Md. App. at 685 (analyzing Haley v. Mayor & City Council of Baltimore, 211
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Md. 269 (1956)).
Even assuming that a factfinder could conclude that the County had a proprietary
obligation to maintain some hypothetical walking path through the parking garage, that
conclusion would be immaterial unless the accident actually occurred on that path. See
Whalen, 395 Md. at 167-68 (rejecting “the proposition that a governmental entity loses its
immunity and is liable to a person who leaves a public way and while not in a public way,
encounters a hazard in a public park”). As previously discussed, however, the only
competent evidence in the summary judgment record indicated that Dr. Zilichikhis
slipped and fell within a parking space on the ground level of Garage 49. The
Zilichikhises had no admissible evidence to show that the parking space was located on a
walking route used by other residents. We see no basis to conclude that a parking space
is part of a “public way,” simply because some citizens used unspecified areas of that
same garage as a convenient route to exit an apartment building. This proposed
expansion of a local government’s duty to maintain its sidewalks and footways, to include
all of the parking spaces within a public parking garage, would violate the basic contours
of the governmental immunity doctrine. See Bagheri, 180 Md. App. at 102.
C ONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court. The
Zilichikhises produced no admissible evidence that the accident occurred in a walkway,
that the motor oil spill had existed for any period of time before the accident, or that the
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County derived any profit from its operation of the garage. The circuit court did not err in
concluding that there were no genuine disputes of material fact as to the issues of
constructive knowledge and governmental immunity. The County, Colossal Contractors,
and Penn Parking were entitled to judgment as a matter of law.
JUDGMENT OF THE CIRCUIT
COURT FOR MONTGOMERY
COUNTY AFFIRMED. COSTS TO
BE PAID BY APPELLANTS.
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