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DeCaro Doran Prevails Again in Preserving the Rights of Property Owners Before Maryland Appellate Courts

August 5, 2020

The long established premises liability law in Maryland clearly states that in order to establish a case of negligence arising out of a slip and fall, a plaintiff must show that a business proprietor had actual notice of a dangerous condition on the property or set forth admissible evidence to establish that the specific dangerous condition remained on the floor for a substantial length of time before the incident, i.e. constructive notice.  Further, under a theory of constructive notice of a dangerous condition, a plaintiff is required to establish evidence of “time on the floor” without speculation.  Recently, in the case of Zilichikhis v. Montgomery County, Maryland, plaintiffs urged the court to completely dismiss the well-established case law in Maryland and adopt what is known as the “mode of operation rule” thereby eliminating the requirement of notice in premises liability cases.  Samuel DeBlasis and Jennifer King of DeCaro Doran successfully convinced the Maryland Appellate Courts to reject such a liberal theory of negligence, thereby protecting property owners from expanded liability exposure.

The case of Zilichikhis v. Montgomery County, Maryland arises out of a slip and fall accident that occurred in a parking garage.  Dr. Rafail and Lubov Zilichikhis, filed suit against Montgomery County, Penn Parking, Inc., and Colossal Contractors, Inc., alleging negligence and loss of consortium.  According to Plaintiffs, the parking garage was owned by Montgomery County, operated by Penn Parking, Inc., and maintained by Colossal Contractors, Inc., at the time of the incident.  The day before the incident occurred, Dr. Zilichikhis parked his car in a parking space in the garage and walked to his apartment without incident.  He testified at his deposition there was no oil on the floor of the garage at that time.  When Dr. Zilichikhis returned to his car the next day, he slipped and fell.  After he fell, he discovered he slipped on motor oil.  Dr. Zilichikhis could not say how long the oil had been on the floor or from where it came, but indicated it was “fresh” oil.     

The Zilichikhises were unable to produce any evidence that any of the Defendants had actual or constructive notice of this condition prior to the fall and therefore, Defendants filed a motion for summary judgment.  One of the Zilichikhises’ arguments in opposition was that the court should adopt the mode of operation rule.  Under the mode of operation rule, the plaintiff is not required to prove notice if the business could “reasonably anticipate that hazardous conditions would regularly arise.”  Maans v. Giant Food, Inc.,161 Md. App. 620, 638 (2005).  In other words, plaintiff must simply show that another customer could have produced the hazardous condition and such hazards caused by other customers were reasonably foreseeable in light of the nature of the business.  The trial court rejected this argument, and having determined there to be no genuine disputes of material fact and that the Zilichikhises failed to set forth any evidence of notice, entered summary judgment in favor of Defendants.  The Zilichikhises appealed this decision to the Court of Special Appeals.  Summary judgment was affirmed on appeal.

The instant case is only the second reported opinion wherein the Court of Special Appeals has considered the issue and declined to apply the mode of operation rule.  In 2005, Christopher Dunn of DeCaro Doran  prevailed upon a case of first impression in the case of Maans v. Giant Food, Inc.. In Maans the Court ruled that although at that time 21 states had adopted the mode of operation rule, they refused to adopt the “trend.”  In a published opinion, the Court explained: 

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.
161 Md. App. at 640.

Although not specifically addressing the mode of operation rule, two years after the Maans case was decided, in the case of Joseph v. Bozzuto Management Co., et al., the Court of Special Appeals, reiterated that the law in Maryland requires that a plaintiff must show evidence of “time on the floor” in order to establish constructive notice.  Should any other analysis be applied, the Maans and Bozzuto Courts made it clear the trial court would be imposing an impossible duty of clairvoyance on the defendant and its employees.
The Zilichikhises, in this case, argued that the traditional rule that plaintiffs must show the business owner had notice is inequitable, unfair, and places an onerous evidentiary burden on plaintiffs.  According to the Zilichikhises, even though the Defendants were not aware of the actual hazardous condition causing Dr. Zilichikhis to fall, they were generally aware of the alleged “dirty” condition of the garage.  For that reason alone, the Zilichikhises urged the adoption of the mode of operation rule, which they claim is now the majority rule among the states.  In accordance with the well-settled case law in Maryland, however, the Court of Special Appeals declined to eliminate the requirement of actual or constructive knowledge “seeing no reason to abandon the reasoning of Maans.”  Zilichikhis v. Montgomery County, Maryland, 223 Md. App. 158, 191 (2015).

The Zilichikhises subsequently appealed and asked Maryland’s highest court, the Court of Appeals, to issue a Writ of Certiorari, primarily, in order to review the decision of the Court of Special Appeals that declined to adopt the mode of operation rule.  In their petition, the Zilichikhises claim they were unable to locate any instance where the Court of Appeals had considered the mode of operation rule and, given the modern trend toward adoption of the rule, the issue was ripe for review by the Court of Appeals.  Albeit the Court of Appeals has not issued a published opinion wherein they explain the reasoning behind the refusal to adopt the mode of operation rule, the denial of Maans’ and Zilichikhises’ petitions for writ of certiorari clearly indicate the position of the Court.  The Court of Appeals only grants petitions for cases of first impression, to resolve any inconsistency in the application of Maryland law, or if the matter is in the public interest.  Having found no compelling reason to review the decision of the Court of Special Appeals, the Court of Appeals denied the Zilichikhises petition in this case.  Therefore, despite any recent trends in other jurisdictions, it remains Maryland law that a plaintiff must set forth admissible evidence of actual or constructive knowledge of a dangerous condition in order to hold a business proprietor responsible for any injury.