The Appellate Court of Maryland (formerly known as the Maryland Court of Special Appeals) reviewed the Prince George’s County Circuit Court’s grant of summary judgment on the grounds of contributory negligence in a slip-and-fall case. Candor v. Organic Market Hyattsville Inc., 253 Md.App. 628 (2022).

In September 2016, the plaintiff was shopping at the Yes Organic Market in Hyattsville right before closing time when she slipped and fell on a floor that had recently been mopped. As a result, the plaintiff required knee replacement surgery. The defendants moved for summary judgment on the plaintiff’s contributory negligence and the Prince George’s County Circuit Court agreed.

The plaintiff appealed and in 2022, the Appellate Court of Maryland overruled the grant of summary judgment in favor of the plaintiff. On appeal, the court reviewed the evidence and provided insight on what is necessary to succeed on summary judgement when arguing contributory negligence.

The defendants did not tender “direct [evidence of] conduct on the part of the plaintiff that would, in and on itself, have constituted contributory negligence[.]” Id. at 636. Rather, the defendant pointed the trial court’s attention to two physical objects in the grocery store that were—at one time or another—within the “range of vision” of the plaintiff. Id. The two physical objects include a mop bucket around the site where the plaintiff fell and a “Caution: wet floor” sign at the front of the store. The defendants contended that these physical objects put the plaintiff on notice of the wet floor and the plaintiff failed to exercise heightened caution when moving about the store.

The Appellate Court explained that in order to be successful in asserting a contributory negligence defense, “it must be demonstrated that the injured party acted, or failed to act, with knowledge and appreciation, either actual or imputed of the danger of injury.” Id. at 637 (quoting Menish v. Polinger Company, 277 Md. 553 (1976)). In other words, when one knows of ordinary danger (or should know of the danger), they must exercise ordinary care to avoid it. Id. However, to succeed in summary judgment, a defendant must show that there is no issue of material fact under this standard and that the plaintiff’s negligence contributed insofar as the defendant is owed judgment as a matter of law. The Appellate Court did not agree that the plaintiff was contributorily negligent as a matter of law and addressed each piece of evidence in turn.

First, the “Caution: Wet Floor” sign was in a “large and relatively open common area where the cashiers and check-out counters are located.” Cador, 253 Md. at 637. Although it was the only sign throughout the store, it was a larger sign, and the video evidence showed that the plaintiff spoke with an employee standing directly next to the sign. However, the fall did not occur in the open area where the sign was; rather, it occurred eight (8) or more aisles away from the sign. The court acknowledged that if this were the only evidence to support a contributory negligence defense, the defendants would undoubtably lose. “Something more” would be required calling for heightened caution on the part of the plaintiff.

Second, the defendants argued that the “something more” was a yellow mop bucket that was located at the site of the fall. The plaintiff’s husband admitted to seeing the yellow mop bucket in the aisle where the plaintiff fell. The video evidence showed that the bucket was located, approximately “hip-high,” next to the woman before she fell. Id. at 638. The plaintiff denied seeing the bucket, but the defendants protested and argued that as a matter of law the plaintiff must have seen the mop bucket.

Further, the defendants contended that the caution sign coupled with the mop bucket adequately put the plaintiff on notice of the dangerous conditions. The court, in turn, delt with these arguments in two parts: (1) Was there a dispute of material fact with respect to the plaintiff being on notice? (2) Even if the plaintiff was on notice with the mop bucket (proceeding the caution sign), did the mop bucket warn the plaintiff of hazardous conditions?

The court acknowledged that it is possible to infer that the plaintiff was aware of the dangerous conditions. However, the Maryland Appellate Court held that whether the plaintiff failed to see the warning signs was a question for the jury to decide, as this was a disputed material fact, i.e., did the plaintiff see the caution sign, followed by the mop bucket?

While the evidence put on by the defendants may have supported that inference, it was not enough for a trial court judge to determine that there was no dispute as to the plaintiff’s knowledge of the sign and mop bucket. Moreover, a litany of Maryland cases has reserved such inferences for the jury. See, e.g., G.C. Murphy Co. v. Greer, 75 Md. App. 399, 402 (1988); Chalmers v. Great Atlantic & Pacific Tea Co., 172 Md. 522, 558-59 (1937); See Grzboksi v. Bernheimer Leader Stores, 156 Md. 146, 149 (1928); Diffendal v. Kash and Karry Service, 74 Md. App. 170, 174 (1988).

Next, even assuming the plaintiff undeniably saw the sign followed by the mop bucket, the court posited that the mop bucket was not comparable to a “caution sign” and did not put the plaintiff on notice of dangerous conditions. Cador, 253 Md. at 649-50. The initial sign—“Caution: wet floor”—sends a clear message to incoming customers as to the dangers present in the store. Yet, this sign was only located at the front of the store. The mop bucket was not a continuation of that message adequate to put the plaintiff on notice, as the court explained.

There is an entirely plausible anti-contributory negligence theory that could be derived from the mop bucket. Id. at 648-49. For example, is the mop bucket, absent a warning sign, an indication that such work has been completed? Was the mop bucket placed there in advance for an employee to clean once the store was closed? Again, all questions that a judge should not answer as a matter of law but rather leave for the fact finder. Id.

The Appellate Court of Maryland explained that the trial court should have let the jury decide the case because there was evidence that could have been interpreted in favor of the plaintiff and that drawing inferences against the plaintiff on summary judgment was improper as the non-moving party. Id.

This recent case reiterates important considerations when asserting the affirmative defense of contributory negligence. When there are multiple inferences that can be drawn from evidence with respect to a plaintiff’s contributory negligence—assuming those inferences hold somewhat equal weight—a judge in Maryland will likely let a jury decide which inference to draw. Further, whether a plaintiff was aware of dangerous conditions cannot be determined based solely on the presence of a single caution sign and a mop bucket. Without “something more,” a judge will likely deny summary judgment under a contributory negligence theory and let a jury decide the ultimate disposition of the case.