Filed: September 22, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-2068

(CA-95-884-CCB)

Marie S. Essex,

Plaintiff - Appellant,

versus

United States of America,

Defendant - Appellee.

ORDER

The Court amends its opinion filed September 10, 1997, as

follows:

On the cover sheet, section 7 -- the attorney information is

deleted, and is replaced with the following: "Elizabeth H. Hamlin,

Dunkirk, Maryland, for Appellant. Lynne A. Battaglia, United

States Attorney, George L. Russell, III, Assistant United States

Attorney, Baltimore, Maryland, for Appellee."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARIE S. ESSEX,

Plaintiff-Appellant,

v. No. 96-2068

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Catherine C. Blake, District Judge.

(CA-95-884-CCB)

Submitted: August 19, 1997

Decided: September 10, 1997

Before MURNAGHAN and WILKINS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Elizabeth H. Hamlin, Dunkirk, Maryland, for Appellant.

Lynne A. Battaglia, United States Attorney, George L. Russell, III,

Assistant United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Marie Essex appeals the district court's order granting summary

judgment to the United States in this action filed pursuant to the Federal Tort Claims Act (FTCA). After a de novo review of the record,

see Bowling v. Wellmore Coal Corp., 114 F.3d 458, 460 (4th Cir.

1997), we affirm.

I

Mrs. Essex maintained a post office box at the Prince Frederick,

Maryland, post office. On September 4, 1993, she entered the post

office. It was drizzling that morning. Mrs. Essex crossed a floor mat

that was positioned just inside the post office. When she stepped off

the mat, her left foot slipped, and she fell, injuring herself.

Mrs. Essex said in her deposition that she was unsure whether she

had wiped her feet on the mat prior to stepping on the floor. In a

sworn declaration, a customer stated that Mrs. Essex did not wipe her

feet. A postal employee testified that the area where Mrs. Essex fell

was dry. Mrs. Essex also testified that she saw no water on the floor,

which did not appear to be wet. Rather, the floor glistened as it usually did. She claimed to have slipped on the slick floor.

The custodian at the post office testified in his deposition that he

had waxed the floors during the week prior to the fall. He stated that,

after he waxed the floor, it was not slippery. Another postal worker

who assisted Mrs. Essex after her fall testified that, if employees feel

it is necessary, they take precautions to warn customers about wet

floors. Some of the precautions are placing "wet floor" signs in the

lobby and checking periodically to see if the floor is wet. No "wet

floor" precautions were taken prior to Mrs. Essex's fall because the

floors were not wet. Before Mrs. Essex fell, other postal customers

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had entered and left the post office without incident and without

bringing any dangerous condition to the attention of postal workers.

The district court found that Mrs. Essex did not establish that the

postal employees had created a dangerous condition. Nor did she

show that the employees had notice of a dangerous condition but

failed to take precautions. Rather, if there was a dangerous condition,

it was caused by a combination of the recently waxed floor and water

on the soles of Mrs. Essex's shoes, which she failed to wipe upon

entering the post office. The court concluded that, on these facts, there

was no breach of duty to Mrs. Essex. The court accordingly entered

summary judgment for the United States. Mrs. Essex timely appealed.

II

As the accident occurred in Maryland, Maryland law applies. See

United States v. Neustadt, 366 U.S. 696, 706 n.15 (1961). In Maryland, the duty of care an owner or occupier of land owes to a visitor

depends upon the status of the invitee. The highest duty of care is

owed to business invitees. Tennant v. Shoppers Food Warehouse, 693

A.2d 370, 374 (Md. Ct. Spec. App. 1997). Mrs. Essex was a business

invitee. See Casper v. Charles F. Smith & Son, Inc., 526 A.2d 87, 89

(Md. Ct. Spec. App. 1987).

A "business invitor is not an insurer of the invitee's safety."

Tennant, 693 A.2d at 374. Rather, the invitor is obligated "to warn

invitees of known hidden dangers, . . . to inspect, and . . . to take reasonable precautions against foreseeable dangers." Id. The invitor is

liable for physical harm to an invitee caused by a condition of the

premises if the invitor:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an

unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the

danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against

the danger.

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Link v. Hutzler Bros., 335 A.2d 192, 195 (Md. Ct. Spec. App. 1975)

(quoting Restatement (Second) of Torts § 343 (1965)). The burden is

upon the invitee to show that the invitor created the dangerous condition or knew of its existence. Id.

Mrs. Essex did not meet her burden in this case. First, there was

no showing that there was a dangerous condition. There was no evidence that the floor was wet or slippery from its recent waxing. Second, even if the floor was dangerous, there was no showing that postal

employees knew or should have known of the danger. The custodian

testified that the floor was not slick, other employees testified that it

did not appear to be wet, and no other customers had complained

about its being wet or slippery. We conclude that there was no breach

of the duty owed to Mrs. Essex to exercise reasonable care to protect

her from injury.

III

We accordingly affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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