J-S67002-15
                              2016 PA Super 36


DARRELL AND KATHLEEN MARKS, :                IN THE SUPERIOR COURT OF
                            :                     PENNSYLVANIA
              Appellants    :
                            :
         v.                 :
                            :
REDNER’S WAREHOUSE MARKETS, :
AND REDNER’S MARKETS, INC., :
                            :
              Appellees     :                No. 890 MDA 2015

               Appeal from the Order entered April 23, 2015,
               Court of Common Pleas, Lackawanna County,
                      Civil Division at No. 13 CV 6735

BEFORE: BOWES, PANELLA AND PLATT*, JJ.

OPINION BY BOWES, J.:                           FILED FEBRUARY 17, 2016

      Darrell and Kathleen Marks (collectively, “Appellants”) appeal from the

entry of summary judgment in favor of Redner’s Warehouse Markets and

Redner’s Markets, Inc. (collectively, “Redner’s”) after the trial court applied

Maryland’s doctrine of contributory negligence and determined that Mr.

Marks’ negligence barred recovery as a matter of law.      We affirm in part,

reverse in part, and remand for further proceedings.

      We briefly summarize the facts underlying this appeal. Darrell Marks is

a resident of Pennsylvania.      In August 2012, he was working as a

deliveryman for King’s Quality Foods, which delivered items to various

grocery stores, including the Redner’s Warehouse Market in Elkton,




*Retired Senior Judge assigned to the Superior Court.
J-S67002-15


Maryland.1    On August 20, 2012, while attempting to pull a hand truck

containing products into the service entrance of the store, Mr. Marks tripped

on the forks of a pallet jack that was located just inside the threshold of the

door and fell to the ground, injuring his knee.

      On December 10, 2013, Appellants filed a complaint in Lackawanna

County, Pennsylvania, asserting claims of negligence and loss of consortium.

On November 19, 2014, Redner’s filed a motion for summary judgment

arguing that the trial court must apply Maryland law and that under

Maryland law, Appellants could not recover because Mr. Marks was

contributorily negligent in bringing about his own injury.           Following

argument, the trial court granted Redner’s’ motion.

      Appellants timely filed this appeal.    They present the following two

questions for our review:

      1.    Whether the trial court committed an error of law when it
      determined [that] Maryland law applied to this case, when both
      parties are from Pennsylvania and Pennsylvania has a greater
      interest in the result of the case than does Maryland where the
      incident occurred?

      2.    Whether the trial court committed an error of law or abuse
      of discretion when it determined that [Redner’s] could not be
      found 100% responsible for the incident and resulting injuries?

Appellants’ brief at 4.

      We begin with our standard of review:


1
    Both King’s Quality Foods and Redner’s are registered Pennsylvania
corporations. Redner’s operates stores in Pennsylvania, Maryland, and
Delaware.


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          Pennsylvania law provides that summary judgment may be
      granted only in those cases in which the record clearly shows
      that no genuine issues of material fact exist and that the moving
      party is entitled to judgment as a matter of law. The moving
      party has the burden of proving that no genuine issues of
      material fact exist. In determining whether to grant summary
      judgment, the trial court must view the record in the light most
      favorable to the nonmoving party and must resolve all doubts as
      to the existence of a genuine issue of material fact against the
      moving party. Thus, summary judgment is proper only when the
      uncontroverted allegations in the pleadings, depositions,
      answers to interrogatories, admissions of record, and submitted
      affidavits demonstrate that no genuine issue of material fact
      exists, and that the moving party is entitled to judgment as a
      matter of law. In sum, only when the facts are so clear that
      reasonable minds cannot differ, may a trial court properly enter
      summary judgment. With regard to questions of law, an
      appellate court’s . . . review is plenary. The Superior Court will
      reverse a grant of summary judgment only if the trial court has
      committed an error of law or abused its discretion.

McDonald v. Whitewater Challengers, Inc., 116 A.3d 99, 104-05

(Pa.Super. 2015) (quoting Charlie v. Erie Ins. Exch., 100 A.3d 244, 250

(Pa.Super. 2014)).

      Appellants argue that the trial court erred in determining that

Maryland law applies.     In addressing which substantive law to apply, we

employ the conflict-of-law principles that our High Court framed in Griffith

v. United Air Lines, Inc., 203 A.2d 796 (Pa. 1964).           In Griffith, our

Supreme Court altered its approach in determining which substantive law to

apply in tort cases. Prior to that decision, Pennsylvania followed the lex loci

delicti rule, which applied the substantive law of the place where the tort

was committed.       Id. at 801.   However, the High Court abandoned that

mechanical approach in favor of a methodology that combined the



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“government interest” analysis and the “significant relationship” approach of

sections 145 and 146 of the Restatement (Second) of Conflicts, which we

reproduce infra.2   Id. at 801-06; Troxel v. A.I. duPont Inst., 636 A.2d

1179, 1180-81 (Pa.Super. 1994).

     Griffith, supra, addressed the choice of law question in an action

brought by the executor of a Pennsylvania resident killed in a plane crash

during a landing in Denver on a flight from Philadelphia, Pennsylvania to

Phoenix, Arizona. Id. at 797. Concluding that the plane crash in Colorado

was “purely fortuitous” and that Pennsylvania had a greater interest in the

executor’s recovery, our Supreme Court discarded the lex loci delicti rule for

a flexible methodology that permitted courts to conduct an “analysis of the

policies and interests underlying the particular issue before the court.”

Griffith, supra at 805. Hence, we utilize this approach herein.

     Section 145(2) of the Restatement (Second) of Conflicts sets forth the

contacts to be considered in applying the analysis required under Griffith.

They include:

     (a)   the place where the injury occurred;

     (b)   the place where the conduct causing the injury occurred;

     (c)   the domicile, residence, nationality, place of incorporation
     and place of business of the parties; and


2
  The Supreme Court in Griffith referenced § 379 of a tentative draft of the
Restatement (Second) of Conflicts. Griffith, supra at 803. The text of
§ 379, without significant relevant substantive change, now appears in § 145
and § 146 of the Restatement (Second) of Conflicts (1983).


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J-S67002-15


      (d) the place where the relationship, if any, between the
      parties is centered.

Restatement (Second) of Conflict of Laws § 145 (1983).

      We evaluate these four factors mindful of the overarching choice-of-

law principles enumerated in § 6 of the Restatement (Second).              Those

considerations include the following:

      (a)   the needs of the interstate and international systems;

      (b)   the relevant policies of the forum;

      (c)   the relevant policies of the other interested states and the
            relevant interests of those states in determination of a
            particular issue;

      (d)   the protection of justified expectations;

      (e)   the basic policies underlying the particular field of law;

      (f)   certainty, predictability and uniformity of result; and

      (g)   ease in the determination and application of the law to be
            applied.

Id. § 6.

      Moreover, as it relates to the instant cause of action, § 146 of the

Restatement (Second) establishes a presumption in personal injury cases

that favors the application of the law of the state where the injury occurred

unless another state has a more significant relationship to the occurrence

and the parties. That section provides:

            In an action for a personal injury, the local law of the
            state where the injury occurred determines the
            rights and liabilities of the parties, unless, with



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J-S67002-15


             respect to the particular issue, some other state has
             a more significant relationship under the principles
             stated in § 6 to the occurrence and the parties, in
             which event the local law of the other state will be
             applied.

Id. § 146.

      The first step in our analysis is to decide whether there is a true

conflict between the laws of Maryland and Pennsylvania.              Cipolla v.

Shaposka, 267 A.2d 854, 855–56 (Pa. 1970). A true conflict occurs where

an analysis of the policies underlying each of the conflicting laws reveals

that, in each case, application of the respective state’s law would further its

corresponding policy. Id. at 855. If a true conflict exists, we then proceed

to determine which jurisdiction has the greater interests, considering the

qualitative contacts of the states, the parties and the controversy. Cipolla,

supra at 856.

      In the present case, the choice of law may determine the outcome of

the case.    Pennsylvania’s comparative negligence statute, 42 Pa.C.S. §

7102, reflects Pennsylvania’s policy of providing plaintiffs with a right to at

least a partial recovery when they are found 50% or less negligent. E.g.,

Terwilliger v. Kitchen, 781 A.2d 1201, 1209 (Pa.Super. 2001). This Court

has recognized that Pennsylvania has an important interest in protecting its

citizens against tortious conduct.    See Laconis v. Burlington County

Bridge Com’n, 583 A.2d 1218, 1223 (Pa.Super. 1990).            In contrast to

Pennsylvania jurisprudence, Maryland utilizes the doctrine of contributory



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J-S67002-15


negligence, which protects defendants from tort claims if the plaintiff is

found to be negligent to any degree.          See Coleman v. Soccer Ass’n of

Columbia, 69 A.3d 1149 (Md. 2013).              As application of either state’s

negligence law would further the underlying policies of that state, a true

conflict exists herein.

      Having found a true conflict of law, we next must determine which

state has the most significant relationship to the parties and the occurrence

in order to determine which jurisdiction’s substantive law applies.       As we

explained in Troxel, supra at 1181 (quoting Normann v. Johns-Manville

Corp., 593 A.2d 890, 893 (Pa.Super. 1991)), the relevant inquiry is “the

extent to which one state rather than another has demonstrated, by reason

of its policies and their connection and relevance to the matter in dispute, a

priority of interest in the application of its rule of law.”

      In this case, the parties all have close ties to Pennsylvania, as

Appellants are Pennsylvania residents, and Mr. Marks’ employer, King’s

Quality Foods, and the company to which he was delivering products,

Redner’s, are both Pennsylvania corporations.           Conversely, the accident

occurred at a Redner’s facility located in Maryland, one of four stores

Redner’s operates pursuant to the laws and requirements of that state.

Hence, Pennsylvania has a significant relationship to the parties and a

corresponding interest in providing redress for wrongs committed by or




                                        -7-
J-S67002-15


against its citizens.3 However, Maryland has a significant relationship with

the occurrence itself, i.e., the place where both the injury and the negligent

conduct occurred.4 Additionally, Maryland has an interest in regulating the



3
  Appellants argue that the application of Pennsylvania law would promote
the state’s interest in limiting the cost of workers’ compensation insurance
by “allowing subrogation in accordance with its workers’ compensation act.”
Appellant’s brief at 34.       Appellants imply that the use of Maryland’s
contributory negligence law could reduce the worker compensation carrier’s
right of subrogation and trigger an increase in coverage rates. Id. at 34-35.
We find that the presumed connection between Maryland’s contributory
negligence law and the imagined increase in Pennsylvania insurance rates is
too tenuous to have any bearing upon our choice-of-law analysis.
4
     Appellants contend that the deposition testimony of the Redner’s
employee responsible for the receiving area where the fall took place
established that the unsafe condition was the result of corporate policies
developed in Pennsylvania. Appellants’ brief at 19. According to Appellants,
Brenda Roberts testified that she received safety training from the person
responsible for the receiving area of the Redner’s store in Oxford,
Pennsylvania. Id. As such, Appellants insist that “Redner’s had safety
policies or training practices which were applied in Pennsylvania and
Maryland similarly, which are much more applicable than any code in
Maryland. Id.

       Based upon our review, however, Ms. Roberts’ deposition testimony
did not provide any evidence that the safety policies or training practices she
employed in Maryland were developed in Pennsylvania, or that the Maryland
store where the fall occurred was operating in accordance with any
standards developed in Pennsylvania for use in all Redner’s stores, including
in Pennsylvania, Maryland, and Delaware.             Plaintiffs’ Response to
Defendants’ Motion for Summary Judgment, 12/18/2014, Exhibit F. At
most, her testimony established that she traveled to a store in Oxford,
Pennsylvania to receive her training—not that the policy was designed at
that location.

       As Appellants failed to demonstrate that their injuries were the result
of a corporate decision or policy, we reject Appellants’ contention that the
negligent conduct in this case occurred in Pennsylvania at the corporate
level.


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J-S67002-15


conduct of, and prescribing the liability of, businesses operating within its

borders.

      Appellants refer us to Carter v. National R.R. Passenger Corp., 413

F. Supp.2d 495 (E.D. Pa.2005). In Carter, a Pennsylvania resident brought

an action against Amtrak for injuries sustained when disembarking from a

train in Maryland.      Id. at 497.      The federal district court applied

Pennsylvania’s comparative negligence law and a jury awarded the plaintiff

$875,000, which was reduced to $612,500 as a result of the plaintiff’s 30%

responsibility for his injuries. In ruling that Maryland had no interest in the

application of its contributory negligence defense, the federal district court

stated:

      Similar to United Airlines in Griffith, it cannot be said that
      Amtrak, as an interstate common carrier, relied on Maryland's
      contributory negligence defense. Nor does Maryland have any
      interest in limiting Amtrak's liability to protect the state's
      business climate. Amtrak is an out-of-state corporation whose
      main tracks traverse the state between Delaware and the District
      of Columbia.    Whether or not Maryland has a contributory
      negligence bar will not affect in any way whether Amtrak will
      continue to operate there. Unlike other businesses, it cannot pick
      up and leave.

Id. at 500.

      We disagree with Appellants’ contention that Griffith and Carter

require the application of Pennsylvania substantive law in the case at bar.

Unlike Amtrak and United Airlines, Redner’s is not an interstate common

carrier that would not have relied on Maryland’s contributory negligence




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J-S67002-15


defense in deciding to operate in the state.     In reality, Redner’s operates

four brick and mortar facilities in Maryland and its decision to continue to

conduct business in Maryland may, in fact, be influenced by the state’s

contributory negligence defense.    Thus, Maryland possesses an interest in

limiting Redner’s liability as a means of protecting the state’s business

climate.   In contrast to a common carrier’s transient connection with

Maryland, Redner’s might elect to “pick up and leave,” the state. Id. at 500.

Thus, where the district court determined in Carter that Maryland lacked an

interest in the application of its contributory negligence defense to limit an

out-of-state corporation’s liability, instantly, Maryland has an interest in the

application of that defense in relation to a business that operates four stores

within its boundaries.5 For these reasons, Appellants’ reliance upon Carter

is not persuasive.

      Indeed,   contrary   to   Appellants’   protestations,   our   review   of

Pennsylvania case law addressing similar conflict-of-law issues reveals that

Maryland has the more significant interests herein. In Troxel, for example,

two Pennsylvania residents, Mary Siple and her infant daughter Ashley,

traveled to Delaware for medical treatment, during which Ashley was

diagnosed with cytomegalovirus (“CMV”). Id. at 1180. Mary Siple, who had


5
  Focusing solely upon the fact that Redner’s was organized in Pennsylvania,
Appellants ignore the benefits that inure to Redner’s by conducting business
in Maryland and they discount the potential for Maryland’s pro-defendant
policies to affect Redner’s business decisions relating to the four stores that
it maintains in that state.


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J-S67002-15


not been informed that CMV was both contagious and posed a special danger

to pregnant women, allowed a family friend, Grace Troxel, to assist in

Ashley’s care.   Id.   Grace Troxel contracted CMV and her infant son died

from the disease soon after his birth. Id.

      Grace Troxel and her husband filed wrongful death and survival actions

in Pennsylvania against the Delaware health care providers who failed to

inform Mary Siple about the dangers of CMV.      Id.   Despite Pennsylvania’s

relationship to the parties, this Court concluded that Delaware law applied in

the actions against the Delaware health care providers.     In so concluding,

this Court stated:

      The patient, who was a resident of Pennsylvania, was taken to
      Delaware for treatment and was treated by [defendants]
      exclusively in Delaware.      No services were rendered by
      [defendants] in Pennsylvania. The services rendered and the
      persons delivering those services in Delaware were regulated by
      the laws of Delaware, not the laws of Pennsylvania. In treating
      Ashley, therefore, the hospital was required to follow and abide
      by the laws of Delaware. As such, [defendants] were entitled to
      rely on the duties and protections provided by Delaware law.
      Pennsylvania law did not follow Ashley and her mother when
      they traveled to Delaware to obtain medical care. Any other rule
      would be wholly unreasonable, for it would require hospitals and
      physicians to be aware of and be bound by the laws of all states
      from which patients came to them for treatment. This is not the
      law.

Id. at 1181.

      Similarly, in Levin v. Desert Palace Incorporated, 465 A.2d 1019

(Pa.Super. 1983), a Pennsylvania resident brought a negligence action




                                    - 11 -
J-S67002-15


against a Nevada hotel.      In determining that Nevada law, rather than

Pennsylvania law, applied, this Court reasoned as follows:

          Obviously, Pennsylvania has an important interest in
      protecting the welfare of its citizens. We conclude, however,
      that this interest is outweighed by Nevada's interest in
      regulating the conduct and prescribing the liability of hotel
      owners within its jurisdiction. A hotel owner relies on the laws of
      the state in which the hotel is located to determine the standard
      of conduct required of him. It could not be expected that a hotel
      should comply with the laws of all the states of which its guests
      are citizens.

Id. at 1021.

      Finally, we find persuasive the reasoning of the United States Court of

Appeals for the Third Circuit in Shuder v. McDonald’s Corp., 859 F.2d 266

(3d Cir. 1988).   In Shuder, a Pennsylvania resident fell in a McDonald’s

Restaurant parking lot in Virginia. Id. at 266-67. In reversing a verdict for

the plaintiff based upon Pennsylvania law applying comparative negligence

rather than Virginia’s contributory negligence, the Third Circuit provided the

following analysis:

          We think it is clear that Virginia has by far the more
      significant contacts. To start with, the accident occurred in
      Virginia. Further, the Shuders voluntarily went to that state.
      Surely Virginia has an interest in how persons conduct
      themselves within the state. The place of the accident was not
      fortuitous as, unlike in Griffith, this case did not involve a
      moving instrumentality. Rather, the accident arose from the use
      of and condition of property, traditionally matters of local
      control. Indeed, a building permit was obtained for the driveway
      on which Mrs. Shuder fell. The Shuders, at trial, urged that the
      property was negligently constructed or designed, again matters
      of local concern.




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J-S67002-15


Id. at 272.

      As in Troxel, Levin, and Shuder, the alleged tortious conduct in this

case occurred in Maryland.        Also, to the extent that Mr. Marks went to

Maryland as a condition of his employment as a deliveryman with King’s

Quality Food, his presence in the state was not fortuitous, as in Griffith.

Moreover, like the incident in Shuder, the accident stems from the use and

condition of property located in Maryland, “traditionally matters of local

control,” and that state undoubtedly has a significant interest in regulating

the conduct of businesses operating there.               Shuder, supra at 272.

Furthermore, the Appellants’ allegations of wrongdoing directly implicate the

activities of Redner’s’ employees at a facility located in Maryland and

operated pursuant to the laws of the State of Maryland.                 Pennsylvania

appellate     courts   have   applied   the   law   of   other   jurisdictions   where

appropriate, even when it prevents Pennsylvania residents from obtaining a

tort recovery.    See Cipolla, supra at 854 (“Inhabitants of a state should

not be put in jeopardy of liability exceeding that created by their state’s law

just because a visitor from a state offering higher protection decides to visit

there.”). Accordingly, we conclude that the trial court did not err in ruling

that Maryland law applies in the present case.6



6
 This conclusion is consistent with the Restatement (Second) of Conflict of
Laws § 164, regarding contributory fault. That provision reads (emphasis
added),



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     Turning to the second issue raised on appeal, Appellants assert that

the trial court erred and abused its discretion by granting summary

judgment in favor of Redner’s based upon its conclusion that a jury could not

find Redner’s 100% responsible for Mr. Marks’ injuries. See Appellants’ brief

at 35-50. Appellants contend that reviewing all of the facts of record in the

light most favorable to them, Maryland case law dictates that it must be left

for a jury to decide whether Mr. Marks was contributorily negligent. Id. at

36-37, 39-40, 43-47. We agree.

     Pursuant to well-settled Maryland law, a finding that a plaintiff was

contributorily negligent operates as a complete bar to recovery against a

defendant who was also negligent.     Wooldridge v. Price, 966 A.2d 955,

961 (Md.App. 2009).    “To establish contributory negligence as a matter of

law, the act relied on must be distinct, prominent and decisive, and one

about which ordinary minds cannot differ.” Catler v. Arent Fox, LLP, 71

A.3d 155, 180 (Md.App. 2013) (citation omitted).

        Before the doctrine of contributory negligence can be
     successfully invoked, 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 which his
     conduct involves. Stated another way, when one who knows and
     appreciates, or in the exercise of ordinary care should know and


     (1) The law selected by application of the rule of § 145
     determines whether contributory fault on the part of the plaintiff
     precludes his recovery in whole or in part.

     (2) The applicable law will usually be the local law of the
     state where the injury occurred.


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J-S67002-15


      appreciate, the existence of danger from which injury might
      reasonably be anticipated, he must exercise ordinary care to
      avoid such injury; when by his voluntary acts or omissions he
      exposes himself to danger of which he has actual or imputed
      knowledge, he may be guilty of contributory negligence.

Thomas v. Panco Mgmt. of Maryland, LLC, 31 A.3d 583, 602 (Md. 2011)

(citation omitted).

      “Ordinarily, contributory negligence is a question of fact that is for the

jury to decide. Only when no reasonable person could find in favor of the

plaintiff on the issue of contributory negligence should the trial court take

the issue from the jury.”   McQuay v. Schertle, 730 A.2d 714, 721 (Md.

App. 1999) (internal citations omitted).     The burden of proof is on the

defendant to prove the contributory negligence of the plaintiff.        Bd. of

Trustees, Cmty. Coll. of Baltimore Cty. v. Patient First Corp., 120 A.3d

124, 135 (Md.App. 2015).

      In addressing this issue, the trial court discussed the above-cited legal

principles and summarized the facts that it considered relevant to the

accident.   It then concluded that Mr. Marks was guilty of contributory

negligence as a matter of law. The trial court reasoned,

          In the case sub judice, the evidence indicates that [Mr.
      Marks] did not look where he was going or take any other
      precautionary measures to avoid his accident. During [Mr.
      Marks’] deposition, when asked if he looked at the ground as he
      walked into the back door at Redner’s, [Mr. Marks] stated “No. I
      look straight ahead.” (Deposition of Darrel Marks, p. 58 ¶¶ 15 -
      24). [Mr. Marks] also admitted that he knew that pallet jacks,
      like the one he fell over, were used by delivery people for
      Redner’s and that he saw such pallet jacks at that Redner’s



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      location in the past. (Id. at p. 68 ¶¶ 12 -24). Even after
      construing the evidence in a light most favorable to [Mr. Marks],
      it is obvious that [Mr. Marks] took no precautionary measures to
      make sure there were no obstructions in his path, despite
      knowing that the warehouse in which he was entering often had
      pallet jacks inside. [Mr. Marks’] failure to even scan the interior
      of the doorway before he walked in indicates a failure to use that
      common caution that an ordinarily prudent person would use
      under the same or similar circumstances. As a result, this court
      is convinced that no reasonable jury could find that [Mr. Marks’]
      own negligence did not contribute to his injury. Thus, because it
      is clear and free from doubt under Maryland law that [Mr. Marks]
      was contributorily negligent, [Mr. Marks] is barred from
      recovery.

Id. at 7.

      Based upon our review of the record, we agree with Appellants that

the trial court failed to view all of the facts presented in the light most

favorable to them. Properly viewed, the record reflects that Mr. Marks had

been making deliveries to Redner’s in Elkton, Maryland approximately twice

per month for the preceding nine months. Mr. Marks’ Deposition, 8/20/14,

at 47-48. He was aware that Redner’s generally stored products on skids,

but on the day in question, he did not see very many in the warehouse or

any in the path that he walked. Id. at 57.

      He further explained that Redner’s required him to follow an

established procedure when making deliveries to the Elkton store. He was

required to: (1) park the truck; (2) sign the sign-in sheet in the warehouse;

(3) go into the store and remove any expired or opened products on the

shelves; (4) return to the truck with those products; (5) place new products




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from the truck into a handcart; (6) bring the handcart of new products into

the warehouse to the receiver who “checks it in to make sure everything

that’s on the list is there”; (7) go into the store and put the new products on

the shelves; and (8) sign out on the same sign-in sheet. Id. at 51-52. Mr.

Marks was following this procedure on the day of his accident. Id. at 59-76.

         When he entered the warehouse to sign in, Mr. Marks encountered no

difficulties and there were no obstructions on the floor.   Id. at 62, 64-65.

He likewise saw no skids or pallet jacks on the floor when he left the

warehouse the first time. Id. at 69. After returning to his truck and loading

his handcart with new product, the cart weighed approximately 100 pounds.

Id. at 70. He reentered the warehouse about ten minutes after his sign-in

visit.    Id. at 69.   He walked up the ramp to the warehouse pulling the

handcart behind him. Id. at 71. To enter the warehouse, Mr. Marks had to

balance the product on his cart and hold open the door to the warehouse,

which opened toward the outside. Id. at 71-72. He had to hold the door

with one hand and pull the cart through the doorway with the other, so his

body was “twisting” as he walked. Id. at 75. He testified that he looked

straight ahead as he walked into the warehouse, not at the ground, because

that was how he naturally walked, and since there had not been any

obstructions on the ground when he walked that same route minutes earlier,

he had no reason to look down. Id. at 58, 73.




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      Mr. Marks testified that it was bright outside and the inside of the

warehouse was dark, which required his eyes to adjust to the differing

lightening conditions. Id. at 74. He took two steps inside the warehouse,

whereupon he tripped over the forks of a pallet jack. Id. at 73, 76, 78. As

the forks of the pallet jack were low to the ground and a similar color to that

of the warehouse floor, he did not see them before he tripped. Id. at 57,

78, 82.

      Analogous Maryland case law precludes the grant of summary

judgment in this case on contributory negligence grounds. In Diffendal v.

Kash & Karry Serv. Corp., 536 A.2d 1175 (Md.App. 1988), the Maryland

Court of Special Appeals reversed the trial court’s grant of summary

judgment based upon contributory negligence after Anna Diffendal was

injured while shopping at the Kash and Karry supermarket.        Id. at 1176.

Mrs. Diffendal had walked to a case of frozen items, picked a product out of

the freezer, and was proceeding back to her shopping cart when she fell

over an L-bed cart that was in the aisle. Id.

      Mr. and Mrs. Diffendal filed a complaint against Kash and Karry

seeking damages for Mrs. Diffendal’s injuries and for loss of consortium. Id.

Kash and Karry filed a motion for summary judgment based on Mrs.

Diffendal’s contributory negligence, which the trial court granted.     Id. at

1176-77.    The Diffendals appealed and the Court of Special Appeals

reversed, holding, “Mrs. Diffendal’s failure to look down the aisle before



                                    - 18 -
J-S67002-15


proceeding to her cart was not such a ‘prominent and decisive act’ from

which reasonable minds could not differ that she was contributorily

negligent.” Id. at 1177. According to the Maryland appellate court,

      More than one inference is permitted under the circumstances of
      this case. It could be inferred that, under these circumstances,
      Mrs. Diffendal was not negligent in failing to have noticed the
      cart over which she fell, or in failing to have avoided the injury
      she sustained. In addition, Mrs. Diffendal stated in an affidavit
      that she did not see the L-cart before she fell. Thus, it may be
      inferred that the cart was placed in the aisle after she began
      looking for the waffles. A reasonable inference is that an
      ordinarily prudent person, while shopping in a supermarket, with
      her attention drawn to the selection of merchandise displayed in
      an open food freezer, could make the same error of judgment,
      and trip over a cart placed in an aisle near the displays of
      merchandise.

Id. at 1178.

      Instantly, as in Diffendal, Mr. Marks’ failure to look down as he

walked into the Redner’s warehouse through the same threshold that he

entered ten minutes earlier without obstruction, while his attention was

drawn to the product in his heavy handcart, did not make him contributorily

negligent as a matter of law when he tripped over the forks of a pallet jack

that had been placed in his path in the interim. Accordingly, the trial court

erred and abused its discretion by granting the motion for summary

judgment. Hence, we reverse the trial court’s grant of summary judgment

and remand for further proceedings.

      Order affirmed in part and reversed in part.          Case remanded.

Jurisdiction relinquished.



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J-S67002-15


Judge Platt Joins the Opinion.

Judge Panella Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/17/2016




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