UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VIRGINIA C. PIELKE,
Plaintiff-Appellant,

v.                                                             No. 97-1525

HOME DEPOT U.S.A., INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-96-3649-AMD)

Argued: June 2, 1998

Decided: July 15, 1998

Before WILKINSON, Chief Judge, and NIEMEYER and
MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Kreg Paul Greer, LAW OFFICES OF KREG PAUL
GREER, Towson, Maryland, for Appellant. Christopher Michael
Cihon, JACKSON & CAMPBELL, P.C., Washington, D.C., for
Appellee. ON BRIEF: Michael J. McManus, Scott Alton Mills,
JACKSON & CAMPBELL, P.C., Washington, D.C., for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Virginia C. Pielke sued Home Depot U.S.A., Inc. ("Home Depot")
for injuries she sustained while shopping at one of its stores. The dis-
trict court granted Home Depot's motion for judgment on the plead-
ings. We affirm.

I.

According to the complaint, Home Depot owns and manages a
number of retail self-service stores selling materials, tools, and equip-
ment used to build, repair, and maintain houses. Among the available
merchandise, it sells lumber, pipes, and other large heavy items. On
or about November 1, 1993, Pielke and her husband were shopping
in Home Depot Store No. 2504 in Towson, Maryland to purchase
supplies for a home repair project.

After selecting several items, Pielke and her husband took them to
a cashier's line in the front of the store. While her husband waited in
line, Pielke decided to search for other items and began to walk
through the store. As she was walking along an aisle near the store's
Small Tools section, she was struck on the head by a section of heavy
pipe, at least eight feet long. A customer was purchasing the pipe at
a nearby cashier station. The counter at this station was much shorter
than the pipe, requiring one either to hold the pipe vertically or to lay
it across the counter and partly obstruct the aisle. After she was hit,
Pielke turned toward the cashier station and saw a male customer and
a female employee looking at her; the employee was laughing. After
the male customer completed his purchases, he picked up the heavy
pipe and left the area, apologizing to Pielke as he passed her. The
employee did not attempt to ascertain the extent of Pielke's injuries
or to learn the identity of the male customer.

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Pielke's husband found her standing in the aisle near the Small
Tools section. He accompanied her to a nearby bench and summoned
the manager. Daron Duvall, the store manager, soon arrived at the
scene. Pielke's husband explained what had occurred and asked
Duvall to bring his wife a drink of water. Duvall agreed but did not
return until approximately forty-five minutes later, only after Pielke's
husband had paged him. Upon his return, Duvall explained that Home
Depot was not responsible for the accident, that he would not fill out
an accident report, and that they should have obtained the name of the
customer who had apologized to her.

Since the accident, Pielke has suffered from severe tightness and
pain in her neck and shoulders, severe headaches, pain in her jaw, and
sinus problems. Also as a result of the accident, she has a posterior
vitreous detachment with a large floater in her right eye, causing her
to see a large black dot obstructing her field of vision in certain cir-
cumstances.

Pielke filed a two count complaint in Maryland Circuit Court,
which Home Depot later removed. Count One alleged that Home
Depot failed to protect Pielke from the risk of injury by other custom-
ers. Count Two alleged that Home Depot ignored its affirmative duty
to determine the extent of Pielke's injuries, to offer and obtain emer-
gency medical assistance, and to ascertain the identity of the male
customer. After the district court granted judgment in Home Depot's
favor, Pielke brought this appeal.

II.

We turn first to Pielke's claim that Home Depot was negligent in
failing to protect her from the dangerous condition created by custom-
ers' mishandling of merchandise. Pielke maintains that Home Depot
should have taken a number of steps to reduce the risk of injury in
these circumstances such as warning customers of the risk of falling
items and directing customers not to purchase long items at short
counters. The district court dismissed this claim, reasoning that the
risk of injury was open and obvious to Pielke and, alternatively, that
the complaint did not allege that Home Depot had actual or construc-
tive knowledge of this type of risk. We conclude that any risk to

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Pielke was open and obvious and, therefore, agree with the district
court's dismissal of this claim.

Since Pielke was a customer at the time of the accident, she is con-
sidered an invitee under Maryland law, see Houston v. Safeway
Stores, Inc., 697 A.2d 851, 858 (Md. 1997), and Home Depot was
required to use ordinary care to keep its premises safe and to protect
her from injury caused by unreasonable risks about which it knew or
could have discovered and that she was unlikely to discover. See
Giant Food, Inc. v. Mitchell, 640 A.2d 1134, 1135 (Md. 1994); Wells
v. Polland, 708 A.2d 34, 39-40 (Md. Ct. Spec. App. 1998). It is true
that in Maryland this duty may require storekeepers to protect invitees
from some dangers caused by the negligent acts of customers. See
Mitchell, 640 A.2d at 1135; Eyerly v. Baker , 178 A. 691, 694 (Md.
1935). However, "[a] storeowner's duty to guard his invitees from the
actions of third persons manifestly will not exceed, either in kind or
degree, his general duty to such invitees." Litz v. Hutzler Bros. Co.,
314 A.2d 693, 697 (Md. Ct. Spec. App. 1974); see also Tennant v.
Shoppers Food Warehouse Md Corp., 693 A.2d 370, 375 (Md. Ct.
Spec. App. 1997) (noting the limitations on a storekeeper's liability
for dangers created by third parties).

A storekeeper's general duty does not extend to dangerous condi-
tions that are open and obvious to the invitee. See Lloyd v. Bowles,
273 A.2d 193, 196 (Md. 1971); Tennant, 693 A.2d at 374; Litz, 314
A.2d at 697; see generally Restatement (Second) of Torts § 343A. In
Tennant, the Maryland Court of Special Appeals recently reaffirmed
this essential limitation on a storekeeper's liability:

          Like the owner, the invitee has a duty to exercise due care
          for his or her own safety. This includes the duty to look and
          see what is around the invitee. Accordingly, the owner or
          occupier of land ordinarily has no duty to warn an invitee
          of an open, obvious, and present danger.

693 A.2d at 374 (citing Casper v. Charles F. Smith & Son, Inc., 560
A.2d 1130 (Md. 1989)). To impose liability under such circumstances
would effectively make the storekeeper an insurer of a customer's
safety, a proposition repeatedly rejected by the Maryland courts. See,

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e.g., Mitchell, 640 A.2d at 1135; Moulden v. Greenbelt Consumer
Servs., Inc., 210 A.2d 724, 725 (Md. 1965).

Pielke's first negligence claim must fail because the risk of injury
from a customer's mishandling of merchandise was open and obvi-
ous. Pielke clearly had a duty to exercise due care for her own safety.
As part of this duty, a customer in a self-service store can be expected
to watch out for other customers hauling heavy merchandise that
might easily be fumbled or dropped. Indeed, according to the com-
plaint, Pielke presumably was aware of this risk. She had entered the
store with her husband to purchase various supplies and items for a
home repair project and, prior to the accident, had taken those items
to another cashier station, engaging in the very sort of activity that led
to her injury.

In a similar case, the Maryland Court of Special Appeals held that
a storekeeper did not have a duty to protect against such third-party
acts. See Litz, 314 A.2d at 697-98. In Litz, a customer who had
entered a store's revolving door was injured when two boys followed
close behind her and spun it with great force. Id. at 694. In rejecting
a claim that the storekeeper had the duty to protect the customer from
the risk of this sort of injury, the court observed:

          [t]hat risk is not, however, an unreasonable risk such as
          gives rise to a duty to warn of danger incident to it. The
          inherent risk was as well known to its user as to the store-
          owner.

Id. at 697. Like the risk of injury from the revolving door in Litz, the
risk of injury from customer mishandling of merchandise was "as
well known to [Pielke] as to [Home Depot]." Thus, this risk did not
give rise to a duty for Home Depot, and the district court properly dis-
missed this claim. Cf. Kight v. Bowman, 333 A.2d 346, 351 (Md. Ct.
Spec. App. 1975) (sustaining demurrer in negligence action where
defendant had no duty); Lusby v. Baltimore Transit Co., 72 A.2d 754,
756-57 (Md. 1950) (same).

III.

We next turn to Pielke's claim that Home Depot was negligent in
failing to provide assistance after the accident had occurred. She

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advances two theories: (1) that Home Depot breached the storekeep-
er's duty to provide emergency medical assistance to its customers
and (2) that Home Depot was required to ascertain the identity of the
customer whose pipe had struck her.

The district court properly dismissed this claim under both theories.
Though Maryland storekeepers sometimes have a duty to provide aid
to an invitee, see Southland Corp. v. Griffith , 633 A.2d 84 (Md.
1993), Home Depot's duty, if any, surely terminated once her hus-
band arrived at the scene of the accident. See Restatement (Second)
of Torts § 314A cmt. f (storekeeper not required "to give any aid to
one who is in the hands of apparently competent persons who have
taken charge of him"); see also Griffith, 633 A.2d at 91 n.8 (looking
to comment f to "further clarify the rule"). Moreover, Pielke has cited
no authority to support her novel argument that storekeepers have a
duty to ascertain the identity of a customer who caused an accident.
As a federal court, we are loath to enlarge the circumstances of liabil-
ity beyond those boundaries carefully crafted by the Maryland courts.

IV.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

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