BOBBY JONES * IN THE CIRCUIT COURT

Plaintiff * OF MARYLAND

v. * FOR

CAFETERIA, INC. * BALTIMORE COUNTY

Defendant * CASE NO. 03-C-01-1235

* * * * * * * * * * * * * *

MOTION FOR SUMMARY JUDGMENT

Defendant, by and through their undersigned attorneys, and pursuant to Maryland Rule 2-

501, file their Motion for Summary Judgment and state in support:

1. There are no material facts in dispute in this case.

2. Defendant is entitled to Judgment as a matter of law.

3. Defendant incorporates the attached Memorandum of Law in support of this

Motion.

WHEREFORE, Defendant, Cafeteria Inc., respectfully requests that this Court grant its

Motion for Summary Judgment and further relief as may be allowed, and as justice and the

nature of Movants cause may require.

Respectfully submitted,

Patricia Bienkowski
 MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY

JUDGEMENT

Cafeteria Inc., by and through its undersigned counsel, hereby filed Memorandum of Law and in

support of states:

INTRODUCTION

Now comes the defendant Cafeteria Inc., and respectfully moves for summary judgment.

The matter before the court is a slip and fall action. The plaintiff alleges that she slipped on jam

that was on the floor of the cafeteria. Summary judgment should be granted on her allegations of

negligence and breach of duty because the plaintiffs own testimony shows that she slipped after

being distracted by her friend and there was no time in between the jam on the floor and the slip

which the workers in the cafeteria could have cleaned up the jam for which Cafeteria Inc. cannot

be held liable. In further support of this motion, Cafeteria Inc. relies on its attached memorandum

of law.

For the purposes of this motion, the following facts are undisputed:

Undisputed Facts

On January 15, 2015, the plaintiff, Bobby Jones, had arrived at The Cafeteria at approximately

7:30 a.m, the same time that she does each morning before work to purchase donuts and coffee.

In her deposition, see Exhibit A lines 4-5 and lines 6-9, Jones said that It is usually pretty

crowded. You can walk around just fine, but there are lines to check out. There were a good bit

of people there, but you could walk and get your stuff. There was just a line to check out and to

get to some of the more popular items, like the bacon. That is why I never get bacon in the

morning. I dont have time to wait. On the morning of the incident, Jones was at the cafeteria
for several minutes while her friend, Jennifer Jones, waived and called across the cafeteria to

greet the plaintiff, before they had a discussion about a meeting that they both had that day.

Immediately after speaking with her friend, plaintiff went to grab for a donut that was on the

breakfast bar and ended up slipping and falling on what she perceived to be jelly. The plaintiff

did not look on the floor to see where she was going, or to see if there were any hazardous

conditions present until after she fell. After her slip and fall is when the plaintiff noticed the jelly

on the floor, on her shoes, and on her pants after she had gotten up, but said that she did not

know how the jam had gotten onto the floor in the first place. In her deposition, see Exhibit A

page 2 line 3, the plaintiff noted that the butter and jelly are available at the food bar in large

containers with spreading knives next to the rolls. Jones, see attached deposition line 9,

described the jelly as being very wet and slippery and claims that that must have been what

she had slipped on, despite the fact that she did not know how the jelly ended up on the floor.

Ms. Jones stated, See Exhibit A page 4 lines 1-6, that she had seen multiple employees on shift,

and working, but that none of the employees working seemed to be aware of the jelly that ended

up on the floor. Right after the incident, the plaintiffs friend, Jennifer Jones, came over, along

with an employee, to help the plaintiff up to her feet and waited with her until a medic had

arrived on the scene. The employee proceeded to then mop and clean up the remaining mess and

also put up a wet floor sign in order to prevent another unfortunate event from occurring. The

Cafeteria is responsible for cleaning its grounds and the jelly was already a pre-existing

condition that caused the plaintiffs injury. The defendant had no prior knowledge, or awareness,

of the jelly being on the floor and therefore had no time nor the opportunity to clean the area

before the plaintiffs slip and fall; because of this reason, the defendant does not accept the

plaintiffs allegations of injuries sustained during this incident.

 STANDARD FOR SUMMARY JUDGEMENT MD RULE 2-501

Maryland Rule 2501(f) governs motions for summary judgment and provides that a trial court

shall enter judgment in favor of or against the moving party if the motion and response shows

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.

Any party may file a written motion for summary judgment on all or part of an action on the

ground that there is no genuine dispute as to any material fact and that the party is entitled to

judgment as a matter of law. The motion shall be supported by affidavit if it is (1) filed before

the day on which the adverse party's initial pleading or motion is filed or (2) based on facts not

contained in the record. A motion for summary judgment may not be filed: (A) after any

evidence is received at trial on the merits, or (B) unless permission of the court is granted, after

the deadline for dispositive motions specified in the scheduling order entered pursuant to Rule 2-

504(b)(1)(E). This Rule does not prevent the trial court from exercising its discretion during trial

to entertain any motions in limine or other preclusive motions that may have the same effect as

summary judgment and lead to a motion for judgment under Md. Rule 2-519. See, e.g., Univ. of

Md. Medical System Corporation, et al. v. Rebecca Marie Waldt, et al., 411 Md. 207 (2009).

Such a procedure avoids confusion and potential due process deprivations associated with

summary judgment motions raised orally or at trial. See Beyer v. Morgan State Univ., 369 Md.

335, 359, fn. 16 (2002); see also Hanson v. Polk County Land, Inc., 608 F.2d 129, 131 (5th Cir.

1979) (allowing oral motions for summary judgment leads to confusion with each side having a

different recollection of what was contended.) Requiring a written motion also insures adequate

notice to all sides. A response to a 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.

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.

Affidavit of Defense Not Available

If the court is satisfied from the affidavit of a party opposing a motion for summary judgment

that the facts essential to justify the opposition cannot be set forth for reasons stated in the

affidavit, the court may deny the motion or may order a continuance to permit affidavits to be

obtained or discovery to be conducted or may enter any other order that justice requires.

Contradictory Affidavit or Statement

(1) A party may file a motion to strike an affidavit or other statement under oath to the extent

that it contradicts any prior sworn statement of the person making the affidavit or statement.

Prior sworn statements include (A) testimony at a prior hearing, (B) an answer to an

interrogatory, and (C) deposition testimony that has not been corrected by changes made within

the time allowed by Rule 2-415.

(2) If the court finds that the affidavit or other statement under oath materially contradicts the

prior sworn statement, the court shall strike the contradictory part unless the court determines

that (A) the person reasonably believed the prior statement to be true based on facts known to the

person at the time the prior statement was made, and (B) the statement in the affidavit or other
statement under oath is based on facts that were not known to the person and could not

reasonably have been known to the person at the time the prior statement was made or, if the

prior statement was made in a deposition, within the time allowed by Rule 2-415(d) for

correcting the deposition.

Entry of 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. By order pursuant to Rule 2-

602(b), the court may direct entry of judgment (1) for or against one or more but less than all of

the parties to the action, (2) upon one or more but less than all of the claims presented by a party

to the action, or (3) for some but less than all of the amount requested when the claim for relief is

for money only and the court reserves disposition of the balance of the amount requested. If the

judgment is entered against a party in default for failure to appear in the action, the clerk

promptly shall send a copy of the judgment to that party at the party's last known address

appearing in the court file.

Cross reference: Section 521 of the Service members Civil Relief Act, 50 U.S.C. app. 501 et

seq., imposes specific requirements that must be fulfilled before a default judgment may be

entered.

Order Specifying Issues or Facts Not in Dispute

When a ruling on a motion for summary judgment does not dispose of the entire action and a

trial is necessary, the court may enter an order specifying the issues or facts that are not in

genuine dispute. The order controls the subsequent course of the action but may be modified by

the court to prevent manifest injustice.

Source: This Rule is derived as follows:

Section (a) is derived from former Rule 610 a 1 and 3.

Section (b) is new.

Section (c) is derived from former Rule 610 b.

Section (d) is derived from former Rule 610 d 2.

Section (e) is new.

Section (f) is derived in part from former Rules 610 d 1 and 611 and is in part new.

Section (g) is derived from former Rule 610 d 4.

ARGUMENT

Definition of Negligence: A failure to behave with the level of care that someone of ordinary

prudence would have exercised under the same circumstances. The behavior usually consists of

actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help

victims of one's previous conduct). Primary factors to consider in ascertaining whether the

person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct

will result in harm, the foreseeable severity of any harm that may ensue, and the burden of

precautions to eliminate or reduce the risk of harm. See Restatement (Third) of Torts: Liability

for Physical Harm 3 (P.F.D. No. 1, 2005). Negligent conduct may consist of either an act, or

an omission to act when there is a duty to do so. See Restatement (Second) of Torts 282

(1965). Five elements are required to establish a prima facie case of negligence: the existence of

a legal duty to exercise reasonable care; a failure to exercise reasonable care; cause in fact of

physical harm by the negligent conduct; physical harm in the form of actual damages; and

proximate cause, a showing that the harm is within the scope of liability.
SUMMARY JUDGMENT SHOULD BE GRANTED ON COUNTS 7, 10, AND 12 OF THE
COMPLAINT BECAUSE THE DEFENDANT DID NOT HAVE SUBSTANTIAL TIME
TO CLEAN UP THE JAM IN BETWEEN THE TIME THAT IT HIT THE GROUND
AND THE TIME OF THE PLAINTIFFS SLIP.

a) The duty of Cafeteria Inc. is to do the standard of care. They are not an insurer of

plaintiffs safety. The duty was met. There was no breach of duty.

b) There was no reasonable amount of time in between the moment the jam made

contact with the floor and the plaintiffs slip and fall for the jelly to be cleaned up by

an employee working at the cafeteria. "[S]torekeepers are not insurers of their customers'

safety, and no presumption of negligence arises merely because an injury was sustained

on a storekeeper's premises." Rehn v. Westfield Am., 837 A.2d 981, 984 (Md. Ct. Spec.

App. 2003)

c) There is no actual notice. No proof of actual notice.

d) Ms. Jones stated that she had seen multiple employees on shift, and working, but that

none of the employees working seemed to be aware of the jelly that ended up on the

floor.

e) If the employees working were aware of the jelly that had ended up on the floor, it

would have been cleaned up and a wet floor sign would have been placed.

f) Right after the incident, the plaintiffs friend, an employee came over to help the plaintiff

up to her feet and waited with her until a medic had arrived on the scene. The employee

proceeded to then mop and clean up the remaining mess and also put up a wet floor

sign in order to prevent another unfortunate event from occurring.

g) The defendant had no prior knowledge, or awareness, of the jelly being on the floor and

therefore had no time nor the opportunity to clean the area before the plaintiffs slip and

fall.
 h) IRF Did Not Have Actual or Constructive Knowledge of the Slippery Patch on the

Boardwalk

IRF denies that it caused the slippery condition on the boardwalk and further denies that

it had any knowledge of the slippery patch before plaintiff stepped on it and fell. (ECF

No. 20-1 at 35-36.) Thus, IRF argues, it is entitled to summary judgment on plaintiff's

claims because plaintiff is unable to present any evidence that defendant had actual or

constructive knowledge of the slippery patch on the boardwalk which allegedly caused

plaintiff to slip and fall. (Id. at 14-17.)

Even viewing all evidence in the light most favorable to the non-moving party, plaintiff

has failed to produce evidence that IRF had actual knowledge of the slippery patch which

allegedly caused his fall. Plaintiff's assertion that defendant "emplaced the dust-gravel

mixture adjacent to the boardwalk," and therefore has actual knowledge of the existence

of that substance on the boardwalk does not prove the proposition which plaintiff intends:

the fact that such material was placed near the boardwalk does not prove that it was

placed on the boardwalk where plaintiff's injury occurred. Nor is there any other evidence

which would permit a conclusion that IRF had even constructive knowledge (for

instance, through another person's notice/warning) of the allegedly dangerous condition

Even if IRF Breached Its Duty to Inspect the Premises, Plaintiff Is Unable to Show that

IRF Would Have Discovered the Dangerous Condition in Time to Warn Plaintiff or Repair

the Condition

With respect to plaintiff's second theory of negligence based on IRF's duty to inspect the

premises, plaintiff emphasis the fact that IRF did not keep any sort of inspection records. (ECF

No. 21 at 13-14.) However, Maryland courts have held that a landowner is under no duty to keep
records of property inspection activities. As the Maryland Court of Special Appeals explained

in Maans, "under Maryland law, the owner/operator of a store has no duty to an invitee to

keep records in order to lighten the invitee's burden of proving negligence." Maans, 161

Md. App. at 635, 871 A.2d at 636. Maryland courts have held that even where a landowner

breaches its duty to inspect the premises, a plaintiff must also prove that "had [the

landowner] made such reasonable inspections, it would have discovered a dangerous

condition." Burkowske v. Church Hosp. Corp., 50 Md. App. 515, 523, 439 A.2d 40, 45

(1982). Indeed, the Maryland Court of Appeals has repeatedly explained that: "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 inspectionsare necessary." Page v. Supervalu, Inc., Civil

Action No. WGC-14-1508, 2015 U.S. Dist. LEXIS 38198 (D. Md. Mar. 26, 2015)

i) In this case, plaintiff's own description of the spot where she had slipped undermines her

allegation that defendant was negligent in taking care of and discovering the allegedly

dangerous condition. When asked if she knew how long the jam had been on the floor, in

her deposition, See Page 2 6-7 and Page 3 lines 1-4, she responded:

Did you see any mess on the floor before your fall?

6 A: No. I didnt see anything on the floor until I fell. When I got up, I noticed that there

was

7 jam on the bottom of my right shoe and on the seat of my pants from after I fell.

10 Q: Do you know how long the jam had been on the floor?

Page 3
 1 A: No. I didnt see it until after I fell.

2 Q: Do you know if the jam was dropped on the ground by another customer of the

3 cafeteria?

4 A: No. Like I said, I have no idea how the jam got on the floor.

j) Just like the plaintiff in Jaeger v. Int'l Renaissance Festivals, Ltd., 2017 U.S. Dist. LEXIS

72539 did not pay attention to any obstacles on the boardwalk when preparing to return

to his booth from the bathroom, Mrs. Jones was distracted by her friend and was not

paying attention to any hazardous conditions present on the floor.

k) The conclusion in Jaeger v. Int'l Renaissance Festivals, Ltd., 2017 U.S. Dist. LEXIS

72539 was Defendant International Renaissance Festivals, Ltd.'s Motion for Summary

Judgment (ECF No. 20) is GRANTED, and summary judgment will be ENTERED in

favor of IRF.

SUMMARY JUDGMENT SHOULD BE GRANTED ON COUNTS 14 AND 15 OF

THE COMPLAINT BECAUSE THE DEFENDANTS NEGLIGENCE DID NOT

CAUSE THE SLIP AND FALL.

a) There was no reasonable amount of time in between the moment the jam made contact

with the floor and the plaintiffs slip and fall for Cafeteria Inc. to become aware of, and

clean up the jam.

b) Immediately after speaking with her friend, the plaintiff ended up slipping and falling

on what she perceived to be jelly. This proves that the plaintiff was distracted by her

colleague.
c) The plaintiff did not look on the floor to see where she was going, or to see if there

were any hazardous conditions present until after she fell, which is why she wasnt

sure if it was jelly at first that she has slipped on.

d) Jones described the jelly as being very wet and slippery and claims that that must

have been what she had slipped on, despite the fact that she did not know how the jelly

ended up on the floor.

e) Contributory negligence

f) Since the plaintiff did not look on the floor to see where she was going, or to see if there

were any hazardous conditions present until after she fell, it is a possibility that the jam,

since plaintiff claims it was still slippery and wet insinuating that it was fresh on the

floor, could have been dropped there by the person in front of her when she went to grab

for a donut that was on the breakfast bar.

g) Vason v. Bd. of Educ., Civil Action No. DKC 15-2228, 2017 U.S. Dist. LEXIS 13040
(D. Md. Jan. 31, 2017)
h) To establish a prima facie case for negligence under Maryland law, a plaintiff must

prove: (1) the defendant owed a duty to protect the plaintiff from injury; (2) the defendant

breached that duty; (3) the plaintiff suffered an injury; and (4) the defendant's breach was

the proximate cause of the injury. See Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 76,

642 A.2d 180 (1994). In a premises liability slip-and-fall case, the evidence must show

that: (1) a dangerous condition existed; (2) the defendant had actual or constructive

knowledge of it; and (3) such knowledge was gained in sufficient time to give the

defendant the opportunity to remove it or to warn of it. See Maans v. Giant of Md., LLC,

161 Md.App. 620, 629, 871 A.2d 627 (2005).

i) I-Chun Jenny Lin v. Courtyard Marriott Corp., No. 0828, 2017 Md. App. LEXIS 200
(App. Feb. 22, 2017)
 j) In Lowrey, the Michigan Supreme Court reviewed and reversed a decision of Michigan's

intermediate appellate court, which had reversed the grant of summary judgment by the

trial court. Lowrey had slipped and fell on an allegedly wet step of stairs at a restaurant

owned and operated by the defendant. The trial court granted the defendant's motion for

summary judgment, holding that Lowrey failed to "raise a genuine issue of material fact

regarding whether defendant had actual or constructive knowledge of the condition of the

stairs."

k) Motion for summary judgment should be granted to Cafeteria Inc. because there was no

actual notice.

l) Page v. Supervalu, Inc., Civil Action No. WGC-14-1508, 2015 U.S. Dist. LEXIS 38198
(D. Md. Mar. 26, 2015)
m) Ms. Page has not produced "evidence that the dangerous condition had existed for a

sufficiently long period of time for Supervalu or its employees to correct it or to warn its

invitees." Keene v. Arlan's Dep't Store of Baltimore, Inc., 35 Md. App. 250, 258, 370

A.2d 124, 129 (1977). Ms. Page suggests a period of five minutes was an adequate length

of time for Supervalu to discover and remove the hazard. "What will amount to sufficient

time depends upon the circumstances of the particular case, and involves consideration of

the nature of the danger, the number of persons likely to be affected by it, the diligence

required to discover or prevent it, opportunities and means of knowledge, the foresight

which a person of ordinary care and prudence would be expected to exercise under the

circumstances, and the foreseeable consequences of the conditions." Moore v. American

Stores Co., 169 Md. 541, 551, 182 A. 436, 440 (1936).

BOBBY JONES * IN THE CIRCUIT COURT

 Plaintiff * OF MARYLAND

v. * FOR

CAFETERIA, INC. * BALTIMORE COUNTY

Defendant * CASE NO. 03-C-01-1235

* * * * * * * * * * * * * *

ORDER

GRANTED, Returnable Upon consideration of Defendants Motion for Summary Judgment, it is

hereby this 22nd Day of May 2017 by the Circuit Court for Baltimore County

ORDERED that the Defendants motion be answered immediately.

_____________________________

JUDGE

Circuit Court for Baltimore County

 CONCLUSION

Summary judgment should be granted because the plaintiff must prove that the defendant had

actual notice of the jam before the slip and fall, in which the defendant did not and cannot be

held liable in negligence or for breach of any statute. Summary judgment should also be granted

on allegations of breach of duty because since Cafeteria Inc. had no actual knowledge of the jam

before the occurrence, the defendant had no opportunity for a reasonable amount of time to clean

up the hazardous condition.

The defendants motion for Summary Judgment should be affirmed.

WHEREFORE, Cafeteria Inc. respectfully requests that the court grant this motion for summary
judgment.

________________________________

Patricia Bienkowski, Esq.

123 Baltimore Avenue
Baltimore, Maryland 21203
(410)-123-4567
(443)123-4568 [fax]
Pb@aol.com
Attorney for Defendant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY THAT on this 20th day of May, 2017 a copy of the above Motion was

mailed to the John Jimmy, Attorney for Plaintiff, 2345 Maryland Street, Baltimore, Maryland

21204.
I felt as if this was given with little guidance. Im not sure of the correct format for a motion for

summary judgment, whether I was really supposed to attach the complaint and deposition since

you already have those documents, and Im not exactly sure how to provide an opt to cure.

Also, the 15 page max limit actually felt a bit limiting in accordance to exactly what you were

looking for. Overall, this was a very stressful assignment because I felt unprepared I hope you

can overlook some of the amateur mistakes I have probably made because this is my first time

ever writing any kind of document like this.