Joseph v. Bozzuto Management Company (Ct. of Special Appeals)

Filed March 15, 2007. Opinion by Judge Charles Moylan (retired, specially assigned).

From the opinion headnote:

HEADNOTE

RESPONSIBILITY OF A PROPERTY OWNER FOR AN INVITEE'S SLIP AND FALL – FACTUAL BACKGROUND – THE "OILY SUBSTANCE" – THE INSPECTION AND CLEANING ROUTINE – A CLAIM OF NEGLIGENCE – THE PREREQUISITE OF KNOWLEDGE FOR A BREACH OF DUTY – THE ABSENCE OF PROOF OF KNOWLEDGE – HAS BROOKS V. LEWIN CHANGED THE GENERAL LAW OF LANDOWNER LIABILITY? – APPLES AND ORANGES – THE VIOLATION OF A STATUTE AS EVIDENCE OF NEGLIGENCE – LEGISLATIVE IMPACT ON THE STANDARD OF CONDUCT – THE MONTGOMERY COUNTY CODE ON LANDLORD-TENANT RELATIONS – A SLIP-AND-FALL IS NOT RES IPSA LOQUITUR – THE OVERARCHING SIGNIFICANCE OF "IN SOME CIRCUMSTANCES" – THE ANTI-LEAD-PAINT REGULATIONS: LANDLORD KNOWLEDGE IS NOT A FACTOR – BROOKS V. LEWIN IS SUI GENERIS – BROOKS V. LEWIN DID NOT OVERRULE 70 YEARS OF "SLIP-AND-FALL" CASELAW SUB SILENTIO – THE HOLDINGS OF THIS COURT THAT SLIP-AND-FALL LAW HAS NOT CHANGED – THE MOTION TO DISMISS

[Personal note from the poster: If you've been missing Judge Moylan's erudite and rococo style of opinion drafting since his retirement, you're in for a treat! Only Judge Moylan could elevate an appeal from the dismissal of a relatively routine slip-and-fall case into a 49-page oration about the plaintiff's doomed "illusion" of a "deus ex machina descending on the courtroom just in the nick of time." Enjoy! SGT]

The plaintiff ("Joseph") is the son of a tenant in a building managed by the defendant ("Bozzuto"), and was an invitee in that building in 2004. In the course of descending the staircase with his brother, near the eighth floor landing Joseph slipped on a small patch of an oily, colorless and translucent substance and fell, injuring his knee. The following afternoon, the fall was reported to an employee of Bozzuto, who immediately investigated but was unable to find or confirm the alleged substance spill. Joseph brought suit against the building's owners and the management company.

Both defendants filed motions for summary judgment, alleging that Joseph had not made out a prima facie case of negligence.Testimony established a regular routine of maintenance and inspection of common areas by Bozzuto, and no indication of the existence or source of the alleged spill other than the brothers' testimony, nor any prior report of such a spill. After the hearing, the motions were granted, from which judgment Joseph appealed.

On appeal, the judge first walked through the line of cases requiring knowledge on the part of the landlord before negligence will lie, before confirming that no evidence had been adduced below to establish such knowledge. On appeal, Joseph's sole contention was that the result in a 2003 Court of Appeals case, Brooks v. Lewin, had eliminated the requirement of prior knowledge, if the landlord has violated a housing ordinance.

In that case, the Court of Appeals had declared the elimination of the prior knowledge requirement in a lead paint case, which the judge in this case found to be too dissimilar in too many ways to be applicable here. To reach that conclusion, the judge walked through the line of cases holding that a violation of a statute may, "in some circumstances", be deemed evidence of negligence and a breach of a duty owned to a plaintiff, finding that the statute in question here did not create a civil action in tort for the benefit of invitees in slip-and-fall cases, and in any event no evidence was presented to show a violation of the statute. Morover, a breach of the statute would itself require knowledge of the unsafe condition, negating the asserted elimination of the knowledge requirement.

The judge went on to contrast this case with Brooks v. Levin, finding that case to have been sui generis and a response to a unique social problem, and not intended to be applied generally to negligence actions, citing several more recent case that gave no indication of a more widespread change in the law as a result of that case.

For all of the above reasons, the judge had no difficulty AFFIRMING the decision below, and in a final chastisement, noted that Joseph's failure to prepare a transcript of the hearing on the summary judgment motions would in and of itself have warranted dismissal of the appeal, as sought by Bozzuto. Since Bozzuto had at its expense provided much of the needed material, the judge, noting the court's preference to decide an appeal such as this on the merits and that it had done so, assessed Bozzuto's costs in preparing the materials against Joseph.

The opinion is available in PDF format.