UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GARY L. BASS; PHYLLIS BASS,
Plaintiffs-Appellees,

v.
                                                                No. 98-2025
HARDEE'S FOOD SYSTEMS,
INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-97-657-AW)

Argued: April 7, 1999

Decided: August 9, 2000

Before WIDENER, MURNAGHAN, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Joel D. Newport, SEMMES, BOWEN & SEMMES,
Towson, Maryland, for Appellant. Gary Allen Stein, MARGOLIUS,
MALLIOS, DAVIS, RIDER & TOMAR, L.L.P., Washington, D.C.,
for Appellees. ON BRIEF: Lori L. Blair, SEMMES, BOWEN &
SEMMES, Towson, Maryland, for Appellant.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Hardee's Food Systems, Incorporated (Hardee's) appeals a judg-
ment against it in a premises liability action brought by Gary and
Phyllis Bass.1 Finding no error, we affirm.

I.

The evidence, viewed in the light most favorable to Bass, estab-
lishes the following. On January 20, 1996, the night of Bass' accident,
Bass drove with his former wife Judy and their daughter Brittany to
Roy Rogers, a fast-food restaurant in Annapolis, Maryland owned by
Hardee's. Bass intended to purchase some food for Brittany. When
they arrived at the restaurant, it was nearly 6:30 p.m. There had been
22 inches of snow on the ground on January 9, but during the days
that followed, the snow had begun to melt. Temperatures had ranged
between 22 and 52 degrees during the week preceding the accident.
There had been substantial rain on January 19, further melting the
snow. On January 20, the temperature had been as high as 52 degrees,
dropping down to 30 degrees by 5:00 p.m. An inch and a half of mea-
surable snow remained in untreated areas.

The only snow observed by Bass was plowed up against a fence
at the perimeter of the lot. Bass parked at the edge of the lot, and he
and his daughter entered the restaurant. Bass noticed no ice in the
parking lot. After Bass and Brittany made their purchase, Brittany
returned to the car while Bass walked across the Roy Rogers parking
lot to a neighboring "mini-mart" to buy a bottle of soda for Judy.
After buying the soda, which took 1-3 minutes, Bass returned to the
Roy Rogers parking lot, which was dark. While walking through the
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1 For ease of reference, we refer to this action as having been prose-
cuted solely by Gary Bass (Bass).

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lot toward his car, Bass slipped and fell on a patch of clear ice that
he had not seen prior to his falling. When he fell, the soda bottle shat-
tered, and a piece of glass entered his eye, eventually causing Bass
to lose the eye. Bass brought suit against Hardee's under a theory of
premises liability.

At trial, Bass' expert in the fields of forensic architecture and
premises safety, Lawrence Dinoff, testified that the asphalt in the Roy
Rogers parking lot had deteriorated and there was a long, distinctive
crack at the site where Bass fell. Additionally, the lot sloped toward
that area. Dinoff concluded that, over a period of several years, runoff
from melting snow from the restaurant roof and the sloped parking lot
had been channeled directly into the crack and flowed to the road.
This runoff facilitated further deterioration of the asphalt, thereby
slowing the water flow and enhancing the opportunity for ice forma-
tion.

Dinoff explained that the conditions of the lot, when combined
with the facts that (1) there was snow piled at the edges of the parking
lot, (2) there was runoff from the roof, and (3) there had been a big
rain the day before, necessitated that Hardee's take precautions to pre-
vent ice from forming in the lot. He testified that Hardee's should
have done one of the following: (1) slope the lot more safely and
channel the roof-runoff underground, (2) repair the deteriorated
asphalt, or (3) apply anti-freezing chemical pellets, particularly to
areas where ice formation was most probable.

At the close of the evidence, the district court ruled as a matter of
law that Bass was an invitee of Hardee's at the time of the fall. The
court also denied a motion by Hardee's for judgment as a matter of
law, see Fed. R. Civ. P. 50(a), concluding that Bass had created a jury
question regarding whether Hardee's breached the duty of ordinary
care owed to its invitee. The district court refused to submit the issue
of contributory negligence to the jury, determining that there was no
evidence that could support a reasonable inference that Bass was con-
tributorily negligent. After deliberating, the jury returned a verdict for
Bass for $1,080,000. Hardee's filed a post-trial motion to conform the
verdict to Maryland's statutory cap on non-economic damages in per-
sonal injury actions. See Md. Code Ann., Cts. & Jud. Proc. § 11-108

                     3
(1998). The district court subsequently entered judgment in the
amount of $595,000 in conformance with the statutory cap.

II.

On Bass' motion, the district court sequestered witness Homer
Henry, who had been the manager of the Roy Rogers at the time of
the accident but was no longer employed by Hardee's at the time of
the trial. See Fed. R. Evid. 615. Hardee's contends that the district
court erred in refusing to allow Henry to remain in the courtroom. We
disagree.

The sequestration of witnesses is governed by Federal Rule of Evi-
dence 615, which states, "At the request of a party the court shall
order witnesses excluded so that they cannot hear the testimony of
other witnesses, and it may make the order of its own motion." Fed.
R. Evid. 615. The rule does not authorize the exclusion of, inter alia,
"a person whose presence is shown by a party to be essential to the
presentation of the party's cause." Id. Because Rule 615 plays an
important truth-seeking role, it carries a presumption favoring seque-
stration. See United States v. Farnham, 791 F.2d 331, 335 (4th Cir.
1986). Therefore, we construe the exceptions to the rule "narrowly in
favor of the party requesting sequestration." Id.

In support of its contention that Henry was improperly excluded
from the trial, Hardee's claims that Henry's presence was essential to
its case. Hardee's maintains that it wanted Henry to be in the court-
room during the trial to avoid having an empty chair at counsel's table
and because it would have been helpful to Hardee's' counsel to have
been able to confer with Henry during the trial. However, in order for
the exception to apply, Hardee's must demonstrate why Henry's pres-
ence was "essential, rather than simply desirable." Opus 3 Ltd. v. Her-
itage Park, Inc., 91 F.3d 625, 629 (4th Cir. 1996) (internal quotation
marks omitted). Hardee's' reasons fail to meet that standard.2 Accord-
ingly, the district court did not err in sequestering Henry.3
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2 An example of a witness whose presence in the courtroom might
qualify as "essential" is an expert who will be called upon to render an
opinion based on the testimony presented during the trial. See id.
3 Rule 615 also does not authorize exclusion of "an officer or employee
of a party which is not a natural person" if the party's attorney designates

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III.

Hardee's also argues that the district court erred in determining as
a matter of law that Bass was an invitee rather than a licensee at the
time of his fall. We review legal conclusions of the district court de
novo. See Hendricks v. Central Reserve Life Ins. Co., 39 F.3d 507,
512 (4th Cir. 1994).

In this diversity action, we are called upon to predict what the
Maryland Court of Appeals would decide were the issue presented to
it. See Doe v. Doe, 973 F.2d 237, 240 (4th Cir. 1992). Under Mary-
land law, "[a] bare licensee is one who enters upon property, not as
a social guest, but for his or her own convenience or purpose and with
the landowner's consent." Wagner v. Doehring , 553 A.2d 684, 686-87
(Md. 1989). An invitee, on the other hand, is "one invited or permit-
ted to enter or remain . . . for a purpose directly or indirectly con-
nected with business dealings between them." Crown Cork & Seal
Co. v. Kane, 131 A.2d 470, 472 (Md. 1957) (alteration in original)
(internal quotation marks omitted). Invitee status may be proven in
two ways: (1) by a showing of "mutual benefit," or (2) by proof of
an "implied invitation." Wells v. Polland , 708 A.2d 34, 40 (Md. Ct.
Spec. App. 1998). "[A] visitor's legal status is not static but may shift
with passage of time, change in location, or change in use." Howard
County Bd. of Educ. v. Cheyne, 636 A.2d 22, 30 (Md. Ct. Spec. App.
1994). Accordingly, a person can lose his invitee status when he
remains on the premises beyond a reasonable time after the invitation
has expired. See Levine v. Miller, 145 A.2d 418, 421 (Md. 1958).

We agree with the district court that under Maryland law Bass was
an invitee at the time he was injured. He clearly was benefitting Roy
Rogers when the accident occurred by providing transportation for his
_________________________________________________________________

that officer or employee as the party's representative. Fed. R. Evid. 615.
Hardee's argues that because Henry was a former employee at the time
of trial, he was an "employee" of Hardee's within the meaning of the rule
and therefore could be designated as Hardee's' representative. Because
exceptions to the rule should be narrowly construed, however, see Farn-
ham, 791 F.2d at 335, we decline to extend the class of "employees" to
include former employees.

                    5
daughter to and from the restaurant. See Restatement (Second) of
Torts § 332 cmt. g (1965) (explaining that a person may have invitee
status when his presence on the property arises out of the convenience
or necessities of others who are on the property for a business pur-
pose); W. Page Keeton et al., Prosser and Keeton on the Law of Torts
§ 61, at 424 (5th ed. 1984) (explaining that the scope of an invitation
by a business to a customer generally extends not only to the custom-
er's transaction of business but also to his safe departure).

Hardee's suggests that the Maryland Court of Appeals would not
afford Bass invitee status, but would instead follow the case of Robil-
lard v. Tillotson, 108 A.2d 524 (Vt. 1954). Even if the Maryland
Court of Appeals were persuaded of the correctness of the analysis in
Robillard, the case at bar is readily distinguishable. In Robillard, a
man drove his wife to a shop, intending to return for her after drop-
ping their daughter off at another location. See Robillard, 108 A.2d
at 526. After transporting his daughter, however, the man drove to a
service station across the street from the shop and parked in an area
not generally used for parking. See id. He entered and purchased a lot-
tery ticket, then waited inside and watched for his wife to emerge
from the shop. See id. When she exited the shop, he signaled to her
and directed that she walk toward his car. See id. As she approached
his car, she fell in a grease pit on the service station property and was
injured. See id. The Supreme Court of Vermont held that the woman
was not an invitee of the service station, reasoning that she was not
benefitting the gas station by her presence there and was present only
at her husband's invitation. See id. at 528. Her husband's business at
the service station had been completed and his use of the station as
a place to watch for, and eventually meet, his wife transferred his sta-
tus from an invitee to, at most, a licensee. See id. Because the court
held that the wife's status could be no greater than her husband's
since the wife was on the property only by virtue of her husband's
invitation, the court held she was not an invitee when she was injured.
See id.

Here, unlike in Robillard, the momentary duration of Bass' daugh-
ter's delay in leaving the premises of the business she was patronizing
was insufficient to extinguish her invitee status and therefore that of
her father, who was accompanying her. See Restatement (Second) of
Torts § 332 cmt. l (explaining that an invitee retains his invitee status

                     6
until "after the expiration of a reasonable time within which to accom-
plish the purpose for which he is invited to enter"). Moreover, another
crucial distinction between Robillard and the present case is that here
the plaintiff was injured while facilitating--by providing transporta-
tion for his daughter--a third party's business with the defendant,
while in Robillard, the plaintiff had no business with the defendant,
was injured on the defendant's premises after a third party had con-
cluded his business, and in no way facilitated the third party's busi-
ness with the defendant. For both of these reasons, we conclude that
the Maryland Court of Appeals would not follow Robillard here and
that the district court correctly determined that Bass was an invitee at
the time of the accident.

IV.

Hardee's next contends that the district court erred in denying its
motion for judgment as a matter of law, maintaining that the evidence
was insufficient to support a reasonable inference that Hardee's had
constructive notice of the danger that caused Bass' injury. We dis-
agree.

An owner or occupier of property owes an ordinary duty of care
to its invitees, which includes the obligation to maintain the property
in a reasonably safe condition. See Lloyd v. Bowles, 273 A.2d 193,
195-96 (Md. 1971). Accordingly, a proprietor is liable to his invitees
for injuries caused by an unreasonably dangerous latent condition on
the land when the proprietor knew or should have known of the con-
dition and should have either exercised reasonable care to make the
condition reasonably safe or given an adequate warning of the condi-
tion. See Rawls v. Hochschild, Kohn & Co., 113 A.2d 405, 407 (Md.
1955).

A motion for judgment as a matter of law should be granted if the
district court determines that the nonmoving party"has been fully
heard . . . and there is no legally sufficient evidentiary basis for a rea-
sonable jury to find for that party." Fed. R. Civ. P. 50(a)(1). We
review the denial of a Rule 50(a) motion de novo, viewing the facts
in the light most favorable to the nonmoving party. See Chaudhry v.
Gallerizzo, 174 F.3d 394, 404-05 (4th Cir.), cert. denied, 120 S. Ct.
215 (1999).

                     7
Here, Bass' expert testified regarding the danger that existed in
sub-freezing weather from the numerous sources of water in the park-
ing lot on the day of the fall: roof runoff, melting snow piled at the
perimeter of the lot, and the hard rain from the day before. He further
testified that Roy Rogers should have discovered this unreasonably
dangerous condition and taken measures to make the lot reasonably
safe by at least placing a de-icing chemical on the ground, particularly
on the areas that were most likely to gather water. 4 Because we con-
clude that a reasonable jury could have accepted the expert's opinion,
we hold that the district court correctly denied Hardee's' motion for
judgment as a matter of law.5

V.

Hardee's finally argues that the district court erred in refusing to
instruct the jury regarding contributory negligence. We disagree.
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4 Hardee's maintains that Bass failed to show that the ice had been on
the ground long enough for a reasonable premises occupier to have dis-
covered it. However, the length of time that the ice was actually on the
ground is immaterial to Bass' claim. See Honolulu Ltd. v. Cain, 224 A.2d
433, 437 (Md. 1966) (explaining that because owner of shopping center
knew of circumstances that favored ice formation in its parking lot, it had
a duty to take reasonable measures to protect its customers from slipping,
and the fact that ice formed only a short time prior to the plaintiff's fall
was immaterial).
5 Hardee's argues that Dinoff testified that "only his specialized knowl-
edge, training, and expertise allowed him to ascertain the nature and
existence of the defect," Appellant's Opening Brief at 28, and therefore
that the dangerous condition was not one that would be discovered by a
reasonably prudent occupier of the premises. Our review of the record,
however, discloses that Dinoff did not testify that only his expert qualifi-
cations allowed him to discover the danger. See J.A. 96 (stating that
"anybody who looks at the physical conditions would understand every-
thing I've explained and wouldn't need for someone to slip" to notice the
danger that existed). Hardee's further argues that Dinoff's testimony
does not satisfy the Daubert requirements and therefore was improperly
admitted. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-
95 (1993). Because Hardee's raised this issue for the first time in its
reply brief, we decline to address it. See Cavallo v. Star Enter., 100 F.3d
1150, 1152 n.2 (4th Cir. 1996).

                    8
The standard to be applied in measuring contributory negligence is
that of an ordinarily prudent person under the same or similar circum-
stances. See Sanders v. Williams, 120 A.2d 397, 398 (Md. 1956). A
refusal to give a contributory negligence instruction is appropriate if,
considering the evidence in the light most favorable to the defendant,
no reasonable fact finder could find contributory negligence. See
Menish v. Polinger Co., 356 A.2d 233, 238 (Md. 1976).

Here, Hardee's has pointed to no evidence from which a reasonable
jury could have concluded that Bass was contributorily negligent in
failing to discover the ice on the property. Hardee's argues only that
if it can be charged with constructive knowledge of the dangerous
condition, then Bass can as well. However, the proposition that the
duty of premises occupiers to discover latent dangers on the property
is the same as the duty of customers to discover those dangers is sim-
ply incorrect. The very nature of a latent danger is that it is one that
the premises occupier "should expect that invitees will not discover."
Honolulu Ltd. v. Cain, 224 A.2d 433, 436 (Md. 1966). The district
court was correct not to submit the issue of contributory negligence
to the jury.

VI.

In sum, we conclude that the district court did not err in sequester-
ing Henry, determining that Bass was an invitee at the time of his fall,
denying Hardee's' motion for judgment as a matter of law, or refusing
to instruct the jury regarding contributory negligence. Accordingly,
the judgment against Hardee's is affirmed.

AFFIRMED

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