                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-1039


CHARLES WILLIAM COLEMAN,

                  Plaintiff - Appellant,

           v.

UNITED   STATES     OF   AMERICA;   SHADE   TREE     LAWN   CARE,
INCORPORATED,

                  Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     Susan K. Gauvey, Magistrate Judge.
(1:07-cv-01711-SKG)


Argued:   January 28, 2010                  Decided:   March 10, 2010


Before MICHAEL and DUNCAN, Circuit Judges, and R. Bryan HARWELL,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by unpublished opinion.       Judge Harwell wrote          the
opinion, in which Judge Michael and Judge Duncan joined.


ARGUED:   Mark   Robert  Millstein,   Baltimore,   Maryland,   for
Appellant.   Alex Gordon, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore,   Maryland;   G.   Randall   Whittenberger,   MILES   &
STOCKBRIDGE, Frederick, Maryland, for Appellees.        ON BRIEF:
David M. Silbiger, Baltimore, Maryland, for Appellant.      Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee United States of America.
Unpublished opinions are not binding precedent in this circuit.




                                2
HARWELL, District Judge:

     This appeal concerns a negligence case brought under the

Federal   Tort       Claims    Act    (“FTCA”)    against    Defendants     United

States of America (“USA”) and Shade Tree Lawn Care, Inc. (“Shade

Tree”) for injuries Charles William Coleman (“Coleman”) suffered

in a slip-and-fall on postal property.                Coleman filed this case

in the United States District Court for the District of Maryland

on June 28, 2007.        On December 2, 2008, United States Magistrate

Judge Susan K. Gauvey granted summary judgment in favor of the

defendants.     For the following reasons, we affirm.



                                          I.

     On May 17, 2006, Coleman drove to the Damascus Post Office

(“Post Office”) as he had done on a weekly basis for several

years.    It was a clear day around mid-morning.                  Coleman exited

his vehicle and noticed a Shade Tree employee mulching by the

sidewalk; but otherwise, the path before him appeared clear.                       He

entered the Post Office, conducted his business, exited the Post

Office,   and    proceeded      down    the    sidewalk.     According      to    his

deposition,     he    was     not    looking   down   at   the   sidewalk    as    he

walked, but rather was looking ahead towards his vehicle while

scanning the area approximately every six to eight seconds to

make sure that his path was free of obstacles.



                                          3
      Coleman eventually reached an area on the sidewalk where

the Shade Tree employee was mulching and stepped down with his

left foot on something foreign to the sidewalk.                         The foreign

object was hard, “bigger than a pea,” and caused Coleman to lose

his   balance.       After   stumbling       on    the    sidewalk,    he   tried     to

regain his balance and placed his right foot into the parking

lot at a location where the sidewalk becomes a concrete access

ramp, connecting the parking lot to the sidewalk.                          Debris had

accumulated in the parking lot at the bottom of the access ramp,

and when Coleman stepped down with his right foot, the debris

allegedly prevented him from regaining his balance and he fell.

X-rays revealed that Coleman suffered a broken right wrist as a

result of the fall.

      The   debris    at   issue   consisted        of    remnants    of    a   gravel-

sandstone-pebble       mixture,       which       was    spread     throughout       the

parking lot approximately eight weeks prior to Coleman’s fall to

help cars with traction due to heavy snow and ice conditions.

Coleman had seen the debris on his prior regular weekly visits

to the Post Office, but he had not noticed the debris when

entering or exiting the Post Office on the day of his fall.



                                        II.

      We review a district court’s grant of a motion for summary

judgment    de   novo,     applying    the    same       legal    standards     as   the

                                         4
district court. Nader v. Blair, 549 F.3d 953, 958 (4th Cir.

2008).     Summary judgment "should be rendered if the pleadings,

the     discovery         and   disclosure            materials       on     file,       and      any

affidavits         show    that     there       is    no     genuine       issue    as     to     any

material fact and that the movant is entitled to judgment as a

matter    of       law."    Fed.    R.     Civ.       P.    56(c)(2).         Thus,        summary

judgment is appropriate when it is clear that no genuine issue

of    material      fact    remains       unresolved         and    an     inquiry       into     the

facts    is    unnecessary         to    clarify       the    application          of    the     law.

Haavistola v. Cmty. Fire Co. of Rising Sun, 6 F.3d 211, 214 (4th

Cir. 1993).

        The facts and inferences to be drawn from the evidence must

be viewed in the light most favorable to the non-moving party.

See Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991).

However, "the mere existence of some alleged factual dispute

between       the    parties       will     not       defeat    an     otherwise          properly

supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986).

        The movant "bears the initial burden of pointing to the

absence       of    a     genuine       issue     of       material      fact."         Temkin    v.

Frederick      County       Comm'rs,      945        F.2d    716,    718    (4th    Cir.       1991)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).                                       If

the movant carries this burden, "[t]he burden then shifts to the

                                                  5
non-moving party to come forward with facts sufficient to create

a   triable    issue    of     fact."    Id.    at     718-19.        Moreover,    "the

nonmoving party must come forward with some evidence beyond the

mere allegations contained in the pleadings to show that there

is a genuine issue for trial." Baber v. Hosp. Corp. of Am., 977

F.2d 872, 875 (4th Cir. 1992).                The nonmoving party may not rely

on beliefs, conjecture, speculation, or conclusory allegations

to defeat a motion for summary judgment. See id.                            When the

nonmoving party fails to establish the existence of an element

essential to that party’s case, “there can be ‘no genuine issue

as to any material fact,’ since a complete failure of proof

concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” Celotex Corp.,

477 U.S. at 323.



                                         III.

       The    Court    first      addresses         whether   Defendant     USA    was

negligent pursuant to Coleman’s claim brought under the FTCA.

The FTCA is a procedural statute that requires that the Court

look   to    the   place     of   the   act    or    omission    to    determine   the

applicable substantive law. Richards v. United States, 369 U.S.

1, 11-14 (1962).           Specifically, 28 U.S.C. § 1346(b)(1) (2006)

provides:



                                          6
     [T]he district courts . . . shall have exclusive
     jurisdiction of civil actions [for] personal injury or
     death caused by the negligent or wrongful act or
     omission of any employee of the Government . . . under
     circumstances where the United States, if a private
     person, would be liable to the claimant in accordance
     with the law of the place where the act or omission
     occurred.

Since     the   incident    in    question      occurred       in    Maryland,     then

Maryland    substantive     law    applies.       Thus,    we       are   required    to

follow Maryland law.

     To     establish   a    prima      facie    case    for        negligence     under

Maryland law, Coleman must prove: (1) the defendant owed a duty

to protect Coleman from injury; (2) the defendant breached that

duty; (3) causation; and (4) damages. See Rosenblatt v. Exxon

Co., U.S.A., 642 A.2d 180, 188 (Md. 1994).                     More specifically,

to prove liability by the USA as a landowner in a premises

liability/slip-and-fall          case,    Coleman       must    provide      evidence

establishing: (1) a dangerous condition existed; (2) USA had

actual or constructive knowledge of it; and (3) such knowledge

was gained in sufficient time to give USA the opportunity to

remove it or to warn Coleman. See Maans v. Giant of Maryland,

LLC, 871 A.2d 627, 632 (Md. Ct. Spec. App. 2005).

     Under Maryland law, a landowner has the duty to protect

pedestrians      “not   from      the    customary,      permissible        uses     and

conditions, but dangers of a kind that would not be expected by

foot travelers, dangers in the nature of traps.” Leatherwood


                                          7
Motor Coach Tours Corp. v. Nathan, 579 A.2d 797, 803 (Md. Ct.

Spec. App. 1990) (internal quotation marks omitted).                                     As such,

an “unevenness of the ground surface” containing gravel “pose[s]

no ‘unreasonable risk’ to” a pedestrian because “pedestrians are

bound to protect themselves from ordinary uses, obstructions,

and comparative roughness of the ground.” Id.                                   In Leatherwood,

the    court       held   that     the     plaintiff         failed        to    prove     that    a

dangerous      condition         existed    where,         “[a]s      a    result    of     normal

erosion, the dirt shoulder adjacent to the paved highway became

uneven and gravel was added”; the court found that gravel and

rocks are to be expected by foot travelers in such a location

and,       therefore,     do     not     create        a   dangerous            condition.       Id.

(finding that the existence of gravel was “slight and trivial”). 1

       Moreover, it is well established under Maryland Law that an

invitee      who    is    harmed    by     an    open      and     obvious        condition       is

ordinarily not entitled to any recovery for his injuries. See,

e.g., Casper v. Charles F. Smith & Son, Inc., 560 A.2d 1130,

1134-37      (Md.    1989).        This     is       because     an       invitor   is     not    an

insurer      of     the   invitee’s        safety.         Tennant         v.    Shoppers    Food

Warehouse,         693    A.2d     370,     374       (Md.     Ct.        Spec.     App.     1997)

(citations omitted).              Like the invitor, “the invitee has a duty

       1
       Cf. Landers v. Aldi, Inc., 153 F.3d 698, 699 (8th Cir.
1998) (“[L]oose stones in a parking lot pose only a minimal
danger to the general public . . . .”).



                                                 8
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.” Id. (citing Casper, 560 A.2d at 1130).

       “An ‘open and obvious condition’ is where the condition and

risk are apparent to and would be recognized by a reasonable

person      in    the    position         of     a    visitor,     exercising      ordinary

perception, intelligence, and judgment.” 65A C.J.S. Negligence

§ 639 (West 2009).             Under Maryland law, because a mixture of

rock salt and gravel “is often used as a precautionary measure

to assist pedestrians” and can easily be seen by pedestrians,

its use will not necessarily constitute negligence. Kaplan v.

Baltimore & Ohio R.R. Co., 113 A.2d 415, 418 (Md. 1955) (“[O]n

that morning the temperature was above freezing, and there was

no rock salt or gravel on the steps, and in fact no need for it

on that day. But even assuming, as we must, that there was some

rock salt or gravel on the steps, plaintiff could easily have

seen it.”).

                                                 A.

       Coleman asserts that the accumulated debris in the parking

lot where the sidewalk becomes a concrete access ramp created a

dangerous        condition.          In        the    instant    matter,     the     alleged

dangerous        condition     is    debris           consisting    of    remnants    of   a

                                                 9
gravel-sandstone-pebble mixture, which was spread throughout the

Post Office parking lot.              Such a mixture is often used as a

precautionary measure to assist motorists and pedestrians, and

gravel-type         debris   is     innate      to        parking         lots.          Under

Leatherwood, it is questionable whether the debris at issue here

could even be considered a dangerous condition.

                                          B.

       Even assuming, arguendo, that this debris did constitute a

dangerous      condition,     it    was   nonetheless           an   open       and   obvious

condition.      The determination of whether a condition is open and

obvious so that an invitee is charged with knowledge of its

existence and consents to any risk is made by the court on a

case-by-case        basis.   See    Gellerman        v.    Shawan         Rd.    Hotel    Ltd.

P’ship, 5 F. Supp. 2d 351, 353 (D. Md. 1998) (applying Maryland

law).    Notably, the circumstances in the instant matter closely

mirror those in Gellerman.                There, the plaintiff “tripped in

close proximity to an uneven curb/sidewalk joint and fell to the

ground while walking through the parking lot of a hotel.” Id. at

352.     The    court     granted    summary     judgment,           holding       that   the

condition      of   the   sidewalk    was      open       and   obvious         because   the

layout   “provided        wholly    unobstructed          views      in    all    directions

from plaintiffs’ vantage point.” Id. at 354.                          The court further

noted that the circumstances of the accident demonstrated that

the plaintiff- as with Coleman in the instant matter- had no

                                          10
reason not to discover the open and obvious condition.                              As a

result, the court held that the plaintiff could not recover for

her damages under Maryland law.

     In     the    instant       matter,    there     was    nothing     to    impede

Coleman’s     ability     to      notice    the     remnants     of    the    gravel-

sandstone-pebble mixture on the day of the slip-and-fall.                             He

was in good health and described the day as “very nice . . .

[s]unny, clear, cool, comfortable.”                  It cannot be overstated

that Coleman was also very familiar with the Post Office, as he

had visited it at least once or twice a week for the past eight

years.    Significantly, he admitted in his deposition that, on

prior visits to the Post Office, he had noticed the debris on

which he slipped and fell.              The fact that Coleman had noticed

the debris on his regular weekly previous visits to the Post

Office is evidence that the debris was an “open and obvious

condition” and that he knew of the risks, if any, posed by the

debris. See Leatherwood, 579 A.2d at 803 (“[W]hatever risk the

uneven ground surface of the shoulder posed to pedestrians or

prospective       bus   riders    was   well    known   to     appellee.      She    had

walked on it many times . . . .”). 2                    As such, the open and

     2
        Accord Landers, 153 F.3d at 700 (“Because Landers
acknowledges that she had seen the stones around the parking lot
on previous visits to the strip mall . . . she admits that the
stones posed an open and obvious danger, and that she herself
knew of the risk.”).


                                           11
obvious nature of the risk, if any, posed by the debris negated

USA’s duty to warn or protect Coleman against it.



                                 IV.

      The Court next addresses whether Shade Tree was negligent.

Shade Tree, as an independent contractor, is held to the same

standard of ordinary care that USA is held to as a possessor of

land. See Restatement (Second) of Torts § 383 (1965) (“One who

does an act or carries on an activity upon land on behalf of the

possessor is subject to the same liability . . . for physical

harm caused thereby to others upon and outside of the land as

though he were the possessor of the land.”).

                                     A.

      As mentioned above, Coleman claims that USA failed to clean

up   the   gravel-sandstone-pebble    mixture,    and   remnants    of   this

debris had accumulated throughout the parking lot creating a

dangerous    condition.     According     to     Coleman,   it     was   this

dangerous condition that caused his fall.           The contract between

Shade Tree and the Post Office provided that Shade Tree was

responsible for “[g]eneral yard clean up,” which consisted of

the grounds between the curb and the building.              However, Shade

Tree did not contract and had no responsibility to maintain the

Post Office parking lot area where Coleman fell, and counsel for

Coleman conceded as much at oral argument.              In addition, the

                                     12
general principles of Maryland law articulated above with regard

to USA’s liability apply to Coleman’s negligence claim against

Shade Tree as well.    As such, Shade Tree owed no duty to Coleman

concerning   the   debris   in   the    parking    lot,   which    purportedly

caused Coleman’s fall, and is entitled to summary judgment as a

matter of law.



                                       V.

     While   the   Court    is   sympathetic      to   Coleman’s   situation,

Maryland law creates a high burden in premises liability/slip-

and-fall cases.     Applying Maryland law to the undisputed facts

in this case, the district court’s granting of summary judgment

was correct as to each defendant.              For the reasons provided

herein, the judgment of the district court is affirmed.

                                                                      AFFIRMED




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