                                    UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 17-1179


KELLY BERTOLAZZI,

                    Plaintiff - Appellant,

             v.

BALTIMORE HOTEL CORPORATION; PARK HOTELS & RESORTS, INC.,

                    Defendants - Appellees,

             and

HILTON WORLDWIDE, INC.; OTIS ELEVATOR COMPANY; HILTON
MANAGEMENT, LLC,

                    Defendants.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:15-cv-02821-JFM)


Submitted: May 31, 2017                                         Decided: June 14, 2017


Before DUNCAN, WYNN, and HARRIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.
Kelly Bertolazzi, Appellant Pro Se. Stephen Robert Robinson, LAW OFFICE OF
JOSEPH M. JAGIELSKI, Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Kelly Bertolazzi appeals the district court’s order granting summary judgment to

the Baltimore Hotel Corp. and Park Hotels & Resorts, Inc. (“Defendants”). 1 We vacate

the district court’s order and remand for further proceedings.

       We “review[] de novo [a] district court’s order granting summary judgment.”

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 565 n.1 (4th Cir. 2015). “A

district court ‘shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

Id. at 568 (quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable jury

could return a verdict for the nonmoving party.” Id. (internal quotation marks omitted).

In determining whether a genuine dispute of material fact exists, “we view the facts and

all justifiable inferences arising therefrom in the light most favorable to . . . the

nonmoving party.” Id. at 565 n.1 (internal quotation marks omitted). However, “the

nonmoving party must rely on more than conclusory allegations, mere speculation, the

building of one inference upon another, or the mere existence of a scintilla of evidence.”

Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). Because this case was brought

under the district court’s diversity jurisdiction, we must apply Maryland law as it was

       1
         Bertolazzi’s notice of appeal designated the district court’s order denying her
motion for reconsideration and did not designate the district court’s summary judgment
order, in contravention of Fed. R. App. P. 3(c)(1)(B). However, we liberally construe
notices of appeal filed by pro se parties. Clark v. Cartledge, 829 F.3d 303, 305-06 (4th
Cir. 2016). Thus, we conclude that Bertolazzi may challenge the district court’s
summary judgment order. See Lolavar v. de Santibanes, 430 F.3d 221, 224 (4th Cir.
2005).


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determined, or as we predict it would be determined, by the highest court of Maryland.

Stahle v. CTS Corp., 817 F.3d 96, 100 (4th Cir. 2016).

       Bertolazzi contends that the district court erred in granting summary judgment on

her premises liability claim because the court failed to consider all of her evidence or did

not consider the evidence in the light most favorable to her, the nonmoving party. We

agree. In Maryland, “[s]torekeepers owe their invitees a duty of ordinary care to maintain

their premises in a reasonably safe condition.” Giant Food, Inc. v. Mitchell, 640 A.2d

1134, 1135 (Md. 1994); see also Nalee, Inc. v. Jacobs, 180 A.2d 677, 677, 679 (Md.

1962). However, “[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.” Mitchell, 640 A.2d at 1135. Thus, the invitee bears the burden

of establishing (1) that a dangerous condition existed and (2) that “the proprietor created

the dangerous condition or had actual or constructive knowledge of its existence prior to

the invitee’s injury.” Maans v. Giant of Md., L.L.C., 871 A.2d 627, 631 (Md. Ct. Spec.

App. 2005) (internal quotation marks omitted).        “[T]he owner or occupier of land

ordinarily has no duty to warn an invitee of an open, obvious, and present danger.”

Rybas v. Riverview Hotel Corp., 21 F. Supp. 3d 548, 562 (D. Md. 2014).

       As the district court correctly recognized, Maryland courts have not determined

whether an inoperable escalator amounts to a dangerous condition as a matter of law.

Courts have split on this issue. Compare Kilgore v. Carson Pirie Holdings, Inc., 205 F.

App’x 367, 375 (6th Cir. 2006), with Ramos v. Sears/Kmart, No. 08 Civ. 4969 (DF),

2010 WL 3911487, at *5 (S.D.N.Y. Sept. 13, 2010). We predict that the Maryland courts

                                             4
would conclude on the facts of this case that the escalator constituted a dangerous

condition. Moreover, we conclude that a reasonable jury could find that Bertolazzi

established a premises liability claim. Bertolazzi introduced evidence that the Hilton

knew about the inoperable escalator, that the escalator had not been cordoned off, that the

Hilton had previously cordoned off a different inoperable escalator, that the Hilton’s

maintenance company recommended stationing an employee to warn guests of the

inoperable escalator until it could be cordoned off, that an inoperable escalator is more

dangerous than a regular staircase, and that she was not warned of the danger prior to

stepping onto the escalator. See Kilgore, 205 F. App’x at 375; see also Troxel v. Iguana

Cantina, LLC, 29 A.3d 1038, 1054 (Md. Ct. Spec. App. 2011) (“[I]n order for [a

plaintiff] to prove causation in a premises liability context, [s]he . . . . must show that it

was more likely than not that [the defendant’s] conduct was a substantial factor in

producing [her] injuries and that [her] injuries were a foreseeable result of [the

defendant’s] conduct.”).

       Bertolazzi further contends that the district court erred in concluding that she

assumed any risk of injury. To establish the assumption of risk defense in Maryland, a

defendant must show that “(1) the plaintiff had knowledge of the risk of the danger; (2)

the plaintiff appreciated that risk; and (3) the plaintiff voluntarily confronted the risk of

danger.” Thomas v. Panco Mgmt. of Md., LLC, 31 A.3d 583, 588 (Md. 2011). “The

question of whether the plaintiff had knowledge and appreciation of the particular risk at

issue is ordinarily a question for the jury, unless the undisputed evidence and all

permissible inferences therefrom clearly establish that the risk of danger was fully known

                                              5
to and understood by the plaintiff.” Id. (internal quotation marks omitted). “Thus, in

order for a plaintiff to have assumed the risk of his or her injuries as a matter of law,

[Maryland courts] require that a plaintiff must have known that the risk was actually

present, not that he or she would, should, or could have known that the risk might well be

present.” Id. at 590 (internal quotation marks omitted).

       Construing the evidence in her favor, as is required at summary judgment, a

reasonable jury could conclude that Bertolazzi did not assume the risk of injury.

Bertolazzi stated that she did not notice that the escalator was not working until she

stepped onto the escalator and that no employees warned her that it was not working. See

id. at 591 (“[C]ourts may only impute knowledge to the plaintiff, as a matter of law,

when there is undisputed evidence of awareness, e.g., physical interaction with or sensory

perception of the dangerous condition . . . .”). Moreover, Bertolazzi stated that she was in

the midst of a group of people, meaning that she could not disembark from the escalator.

Additionally, Bertolazzi testified that she did not see any sign warning her that the

escalator was not working. 2     See id. at 592 (noting that plaintiff “did not see any

maintenance activity or salt on the walkway, [leading] just as easily to the inference that

[she] did not have knowledge of the ‘essentially invisible’ ice”).




       2
        For these same reasons, we conclude that the Defendants failed to establish as a
matter of law that Bertolazzi was contributorily negligent. See Menish v. Polinger Co.,
356 A.2d 233, 236 (Md. 1976); Diffendal v. Kash & Karry Serv. Corp., 536 A.2d 1175,
1177 (Md. Ct. Spec. App. 1988).


                                             6
      Therefore, we vacate the district court’s summary judgment order and remand for

further proceedings.   We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

                                                       VACATED AND REMANDED




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