Giant of Maryland LLC v. Karen Webb , No. 413, September Term, 2019. Opinion by

Kenney, J.

NEGLIGENCE

– PREMISES LIABILITY

– STANDARD OF CARE

– STATUS OF ENTRANT

– INVITEES

– CARE REQUIRED IN GENERAL
A possessor of land is subject to liability for physic al harm caused to his invitees by a condition on the land if, but only if, he: (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 e xpect 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. But the owner or possessor of land is not an insurer of the safety of his customers while they are on the premises and no presumption of negligence on the part of the owner arises merely from a showing that an injury was sustained in his store.

LABOR AND EMPLOYMENT

– RIGHTS AND LIABILITIES AS TO THIRD PARTIES

– WORK OF INDEPEND ENT CONTRACTOR

– EXTENT OF CONTROL

– IN GENERAL
“General control over an independent contractor’s work” would not be sufficient to extend liability to Giant for Mr. Winzer’s actions. See Appiah v. Hall , 416 Md. 533, 563. To do that, it would be necessar y to demonstrate that Giant had “retained control over the operative detail and methods” of Mr. Winzer’s work, including “ the very thing from which the injury arose

. ” Id. at 555 (citing Gallagher’s Estate v. Battle , 209 Md. 592, 602 (1956)).

EVIDENCE

– AD MISSIBILITY IN GENERAL

– MATERIALITY

– TENDENCY TO MISLEAD OR CONFUSE

The Reptile Theory approach is similar to a Golden Rule argument. It encourages jurors to favor personal safety and the protection of family and community; Golden Rule arguments “appea l[] to the jury’s own interests” and ask jurors “to place themselves in the shoes of the victim.” Lee v. State , 405 Md. 148, 171 (2008) (internal citations omitted). When such arguments “invite[] the jurors to disregard their oaths and to become non

- obje ctive viewers of the evidence which has been presented to them, or to go outside that evidence to bring to bear on the issue of damages purely subjective considerations” they are improper. Leach v. Metzger , 241 Md. 533, 536

- 37 (1966).

EVIDENCE

– PRESUMPTI ONS

– EVIDENCE WITHHELD OR FALSIFIED

– SUPPRESSION OR SPOLIATION OF EVIDENCESpoliation is “ [ t ] he intentional destruction, mutilation, alteration
, or concealment of

evidence, usu [ ally ] a document.” Keyes v. Lerman , 191 Md. App. 533, 537 (2010)

. A spoliati on instruction is given in a civil case when “ a party has destroyed or failed to produce evidence.” Cost v. State , 417 Md. 360, 370 (2010).

The instruction addresses :

the destruction or failure to preserve evidence, rendering it unavailable, and not m erely the failure to produce evidence that is available, or, indeed, the failure to create evidence, but, for purposes of the permissible inference, it does distinguish between destruction or failure to preserve with an intent to conceal the evidence and d estruction or failure to preserve that is the product of negligence

. Keyes , 191 Md. App. at 540.

Before the instruction may be given, the requestor, “ [ b ] y necessity,” has the burden to establish and the court would have to find that the video “actually existed.” Solesky v. Tracey
, 198 Md. App. 292, 309 (2011). There can be no act of destruction or failure to preserve evidence not proven to exist, and therefore no act or omission from which inferences can arise.

APPEAL AND ERROR

– HARMLESS AND REVERS IBLE ERROR

– PARTICULAR ERRORS

– INSTRUCTIONS

– IN GENERAL
Instructions “as to facts and inferences” are not normally required. And when missing evidence permits multiple inferences to be drawn, a trial judge’s “ emphasis of one possible inference out of a ll the rest . . . can be devastatingly influential upon a jury although unintentionally so.” Keyes , 191 Md. App. at 542 (quoting Yuen v. State
, 43 Md. App. 109, 114 (1979)).

APPEAL AND ERROR

– HARMLESS AND REVERSIBLE ERROR

– IN GENERAL

– PREJUDICE; PRE JUDICIAL ERROR

– IN GENERAL

An instruction that “is misleading or distracting for the jury, and permits the jury members to speculate about inapplicable legal principles,” is potentially prejudicial. Barksdale v. Wilkowsky , 419 Md. 649, 669 (2011)

.Circuit Court for Anne Arundel County

Case No

. C

- 02

- CV

- 17

- 003054 REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No

. 413
September Term, 2019

______________________________________
GIANT OF MARYLAND LLC

v.

KAREN WEBB

________________________ ______________ Leahy
, Wells
, Kenney, James A., III (Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Kenney, J.

______________________________________
Filed: February 25, 2021Appellee, Karen Webb, was injured on Dece mber 4, 2014 while shopping at a

supermarket owned and operated by appellant, Gia nt of Maryland, LLC (“Giant”)

. On

October 25, 2017, s he sued Giant in the Circuit Court for Anne Arundel County,
advancing two causes of action: (1) negligence and (2) neglig ent hiring, training, and
supervision. 1 A jury returned a verdict in her favor.
In its timely appeal, Giant presents four questions, which we have reordered
,
sl ightly rephrased , and consolidated into three for our review: 2

1 According to her Complaint, an “employee of [Giant] was pushing a shopping cart in one of the shopping aisles as part of his job duties at the premises and within the scope of his employment,” and he “failed to safe ly operate the shopping cart, f ailed to pay proper time and attention to pushing the shopping cart.” Upon learning that the person operating the cart was Keydonne Winzer, an employee of PepsiCo , Ms. Webb amended her complaint on December 22, 2017 to add Pe psiCo as a defendant. Mr. Winz er was not sued individually. PepsiCo moved to dismiss based on limitations, and the trial court granted PepsiCo’s motion and struck the amended complaint. Mr. Winzer was employed by FedEx at the time of trial.

2 Giant aske d:

I. Whether the circuit court erred in denying Giant’s motion for judgment whereby permitting [Ms.] Webb to argue a new, alternative theory of liability at the close of trial?

II. Whether the circuit court erred in denying Giant’s motion for summary judgment ?

III. Whether the circuit court er red in denying Giant’s motion in limine to exclude argument that Giant owed [Ms.] Webb a non

- delegable duty of “safety” when such argument misstated the law, was irrelevant, and was wholly prejudicial?

IV. Whether the circuit co urt erred in charging the jury with a spoliation instruction when there was no evidence or findings that video footage of the incident existed or was destroyed?2

I. Did the circuit court err in denying Giant’s motion for summary judgment prior to trial and its subsequent motion for judgment?

II. Did the circuit court err in denying Giant’s motion in limine to exclude argument that Giant owed Ms. Webb a non

- delegable duty of “safety”?

III. D id the circui t court err or abuse its discretion in giving a spoliation instruction?

For the reasons set forth herein, we shall reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The Incident

Ms. Webb ’s in

jury occurred in the frozen

- foods aisle at Giant. She testified:

I tu rned around and to put the stuff in my

– in the basket and I stepped back and I was struck in the back. And I fell backwards, struck my back and my buttocks which we have pictures to show the bruising that I did hit something and I fell to the ground. An d I assume it was a Pepsi person that was pushing the cart. 3
Ms. Webb’s prior medical history indicated prior incidents of dizziness and falling.
Giant’s incident report and some medical records suggest that she had reported being

diz zy and falling when the incident occurred.
Keydonne Winzer, t he person “pushing the cart
, ” denied striking Ms. Webb . He

testified :
Okay.

. . . We have those wooden pallets that we have our crates and things on and I was pulling it to the back of the sto re. As I’m going d own the aisle, I recognize that there’s a lady who is knelt down in front of one of the

3 The terms “pallet cart” and “pallet jack,” were used interchangeably in this case. They

are a lso known as pallet trucks, pal let pumps, pump trucks, scooters, dogs, or jiggers and used to lift and move pallets . In her Complaint, Ms. Webb alleged that she was struck by a “store pallet cart.”3

freezer doors. So generally I told her

– well, normally when I do the pallets, I’ll let the customers know, hey, I’m behind you or I’m on the aisle.
So I said, “Hey I’m behind you.” I don’t think she really heard me because she stood up, it seems that she lost her balance and when she stumbled backwards, she hit the edge of the pallet and then hit the floor.
As to his employer , he testified:

[ Giant’s Counsel]: Ok ay. You received all your training from Pepsi?

[Mr. Winzer]: Yes.
[Giant’s Counsel]: Did you ever receive training from Giant?

[Mr. Winzer]: No.
[Giant’s Counsel]: Did you ever receive any type of payment directly from Giant?

[ Mr. Winzer]: No.

[ Giant’s Counsel]: Were you ever an employee of Giant?

[Mr. Winzer]: No.
[Giant’s Counsel]: You were always an employee of Pepsi?

[Mr. Winzer]: Yes.

* * *
[Giant’s Counsel]: Now, your purpose while you were at the Giant that day was to make sure Pep si product was stocked, correct?

[Mr. Winzer]: Yes.
[Giant’s Counsel]: Okay. Did anybody from Giant ever tell you how to stock Pepsi products?

[Mr. Winzer]: No.

* * *4

[Giant’s Counsel]: In your experience as a merchandiser, we re you ever followed by any store employee to watch

– so they’d watch you do your job?

[Mr. Winzer]: No.
[Giant’s Counsel]: Because they’re doing their job, right?
[Mr. Winzer]: Right. Sometimes afterwards, that’s

– that would be to check to see if I did the job the co rrectly.
[Giant’s Counsel]: If it’s stocked properly?
[Mr. Winzer]: Right.

* * *
[Giant’s Counsel]: [Giant] did not hire or fire you?

[Mr. Winzer]: No.
[Giant’s Counsel]: It did not control your conduct while you were in the sto re, is that correct?

[Mr. Winzer]: No.
Motion for Summary Judgment
On September 14, 2018, G iant moved for summary judgment :
For the purpose of this motion, and for the resolution of the claims against Giant, while there are disputed facts regarding t he manner in which t he occurrence happened, it is undisputed that the alleged tortfeasor was not an employee of Giant. Because the person that may have struck the Plaintiff was not an employee or agent of Giant, Giant cannot be vicariously responsible fo r that person’s alle ged negligence. Additionally, there cannot be a cause of action for negligent hiring, supervision, or retention. Plaintiff’s claims all fail as a matter of law, and Giant is entitled to judgment in its favor.

Ms. Webb, in opposition to the motion , stat ed:5

The man was not wearing any type of uniform and did not identify himsel f to Ms. Webb and as a result [she] was not aware whether he was an employee of Giant. Exhibit A at 31

- 3 through 17. However, [she] assumed that the man that struck her was an em ployee of Giant.

* * *
Mr. Winzer has testified that Defendant Giant’s pallet jacks were known and understood to be available for his use and that of other such third

- party vendors with the express permission and consent of Defendant Giant. . . . Mr. Co radini [Giant’s corporate representative] also explained that Defendant Giant would direct vendors on such matters as where to place items and displays and “correct” them where a safety issue was observed.

* * *

The Motion for Summa ry Judgment must be denied because Giant is vicariously liable for the subject incident which caused Ms. Webb’s injuries and also because there remain genuine disputes of material fact as to the identity of the individual who struck Ms. Webb with the palle t jack.
(Emphasis added).
The circuit court denied the motion without a hearing.

Motion in Limine
On April 3, 2019, Giant fil ed an Omnibus Motion in Limine to preclude Ms.
Webb from arguing that Giant had “ breached a ‘sa fety’ duty as a property owner ” u nder a
“Reptile Theo ry” 4 approach by “appeal[ing] to the jury’s own interests and/or passions

4 Giant argues that th e “Reptile Theory” is a “recent phenomenon, which traces its origins to a monograph authored by Don C. Kennan and David Ball, Reptile: The 2009 Manual of the Plaintiff’s Revolution. ” According to Giant :
The Reptile theory asserts that you can prevail at trial by speaking to, and scarin g, the primitive part of jurors’ brains, the part of the brain they share with reptiles. The Reptile stra tegy purports to provide a blueprint to succeeding at trial by applying advanced neuroscientific techniques to6

and ask[ing] them to place themselves in the proverbial shoes of the plaintiff when
deciding what the defendant should have done.” In addition, the motion in lim ine sought
to preclu de any evidence or testimony that Mr. Winzer “was an employee, agen t, or
servant of Giant,” because it was now undisputed “that the person pushing the cart was an
employ ee of PepsiCo.”
Ms. Webb responded that “[t]here is a genuine d ispute of material f act as to the
identity of the employee who caused [her] injuries,” and that “she does not know whether

the man who struck her was employed by Defendant Giant.” In addition, she argued that
“Giant, as the property owner of a business op en to the public, ow e[d] a duty to ‘use
reasonable care to see that those portions of the property that the invitee may be expected

to use are safe .’” Characterizing Giant’s duty as “non

- delegable under Maryland law,”
she argued that “the duty of care own ed to Ms. Webb” was breached when it “permitted
Mr. Winzer . . . to utilize a pallet jack it owned with its permission and consent, in its
store aisles, at the same time they were to be open to customers (invitees), without proper

ove rsight or supervision. ”

(...continued) pretrial discovery and trial. The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaint iffs’ counsel can reach the reptilian portion of the jurors' brains, they can influence their decisions ; the jurors wil l instinctively choose to protect their families and community from danger through their verdict.
Appellant’s Brief at 2

- 3 (citing Plai ntiff’s bar embraces Reptile strategy and defense bar responds
, LEXOLOGY (Oct. 4, 2013), https://www.lexology.com/libra ry/detail.aspx?g=ad754e6a

- c50c

- 4570

- 8990

- 71900cdf6795

.7

W hen t he parties appeared for the first day of tr ial, t he court, after argument,

denied t he motion:
[W]ith regards to Mr. Win [ze] r as [to] whether he’s an employee, agent, servant of Giant, again, these are, I think, you are asking me again to kind of make a ruling witho ut having the evidence. I think this is the facts that are going to be at issue, and I will address this at the conclusion of the case, so I decline to rule on a Motion in Limine at this point.

– whether Giant breached a safety duty a s the property owner , again, I’m going to instruct the jurors on the law. If they start to argue a higher duty and it’s not supported by my instructions, that’s going to be an area that they’re going to have a problem with in closing arguments. They’re goi ng to get the instru ctions from me, you know. That will be fair fodder for your closing, you know.
So at this point I’m going to deny your motions with regards to that.

(E mphasis added).
Motion for Judgment

At the close of Ms. Webb’s case

- in

- chief, G iant moved for judgm ent on two
grounds: (1) that there was no evidence of an unreasonably dangerous condition on the
premises to support a claim that Giant breached a non

- delegable duty to keep its premises

safe; and (2) that there was no evidence that Mr. Winzer was an agent , servant, or
employee of Giant sufficient to support a claim for vicarious liability or negligent hiring,
supervision, trainin g, or retention.

Ms. Webb’s counsel responded :
The property owner here, which is undisputed, Giant, has a no n

delegable duty

. . . which he is not free to delegate to the contractor. Such a

non

- delegable duty requires the person upon who it is imposed to answer for that care as exercised by anyone even though he be an independent contractor to whom the performan ce of the duty is en trusted. . . .8

[E]mployers are liable under this exception 5 irrespective of whether they themselves have been at fault. Whether vicarious liability should be imposed upon an employer by application of this exception is a matter of poli cy.

* * *

That’ s exactly what we have here and with respect to these questions regarding notice, whether knows or should have known, there was testimony from both the Giant rep and from Mr. Winzer that they know

– first of all, it’s a store owned by G iant and it’s a pall et jack owned by Giant with their permission and consent stocking shelves for their benefit. And the duty is to use reasonable care to see that those portions of the property that the invitee may be ex pected to use are safe.

The tria l court granted judg ment in favor of Giant on premise s liability , but
permitted the case to go forward based on vicarious liability :

I evaluated the evidence of th is case and . . . looked at the case law that was cited and what I believe we have before us is not a premise lia bility case. I do not believe that there is any allegation that what occurred is a result of a flaw or evidence in the record to say that there was something about those premises that created a danger that would have resulted in the inj ury

. . . . So I do not believe that the

– there is evidence to go forward on premise liability to the jury.

However, what, I think this case is and what the evidence is, I mean, it’s a

– is whether Mr. Winzer was

– did something that was negligent that resulted in the inj ury that was caused to Ms. Webb. So I think the issue becomes, is there evidence to keep this case alive against Giant with regards to Mr. Winzer’s actions that day. I think that there is arguments that could be made on what was offere d, that there is som e

– enough involvement with Giant with regards to Mr. Winzer to warrant it turning into a fact question for the jury to decide . I think there was enough evidence for the jury to figure out a, you know, a

– whether

– you know, I’m going to leave it up to Co unsel to make their arguments that there isn’t

5 Counsel referred to the exception to the general rule that an “employer of an i ndependent contractor is not liable for the negligence of the contractor or his employees.” Appiah v. Hall , 416 Md. 53 3, 558 (2010) (quoting Rowley v. Balt ., 305 Md. 456, 461 (1986) ).9

enough, but I think there was evidence to

– that Giant controlled acc ess to the store

. (Emphasis added).

A t the close of its case
, Giant renewed the motion for judgment, which the trial
court again denied

. The jury awarded Ms. Webb $188, 986 in past medical bills and

$ 211,014 in non

- economic damages.
Other facts will be presented in our discus sion of the question s

.
DISCUSSION

I

The Denial of Gian t’s Motion for Summary Judgment and Motion s for Judgment

The m otions for summary judgment and for judgment present similar question s at
different stages of the proceeding s . We will first address the Motion for Summary
Judgment.
Summary Judgment
Standard of Review

A trial court has “discretionary authority to deny a motion for summary judgment
in favor of a full hearing on the merits, even when the moving party ‘has met the
technical requi rements of summary judgment.’” Fischbach v. Fischbach , 187 Md. App.
61, 75 (2009) (quoting Dashiell v. Meeks
, 396 Md. 1 49, 164

– 65 (2006)). Accordingl y, we

review a denial of a motion for summary judgment for an abuse of discretion. Id.10 Contentions

Giant contends that Ms. Webb had “failed to offer any disputes of fact or evidence
that Mr. Winzer was an agent, s ervan t, or employee of Giant,” and to “present any
evidence that an unreasonably dangerous condition existed on the premises to sustain a
cause of action predicated on premises liability.” 6

Ms. Webb contends that the denial of summary judgment was proper

. She argues

there wa s a genuine dispute of material fact regarding Mr. Winzer’s relationship with

Giant
, 7 a nd sufficient facts to demonstrate Giant’s control over Mr. Winzer when he was
on the premises.
Analysis

A trial court can “enter judgment in favo r of or against the moving party if the
motion and response show that there is no genuine dispute as to any material fact and that
the party in whose favor judgment is entered is en titled to judgment as a matter of law ,”

but it may also exercise its discre tion not to do so. Fischbach , 187 Md. App. at 75

6 The trial court later granted Giant’s motion for judgment on the is sue of premises liability. Giant argues that by the end of discovery, Ms. Webb lacked any evidence that the person pus hing the pallet cart was an agent, servant, or employee of Giant or that Mr. Winzer’s use of Giant’s pallet cart “equated to an entrustme nt of a non

- delegable duty or was itself “unreasonably dangerous.” We understand Giant’s arg ument to be that the eviden ce did not change between summary judgment and trial and that it was entitled to judgment prior to trial

.

7 In her opposition to Giant’s motion for summary judgment, Ms. Webb also contended that there was a genuine dispute of material fact as to the ident ity of the employee who caused her injuries. Mr. Winzer’s identity and his relationship with PepsiCo was not disputed at trial

. As we no ted above, Ms. Webb sought to join PepsiCo as a defendant on December 22, 2017

. PepsiCo moved to dismiss based on limit ations, and the trial court granted PepsiCo’s motion and struck the amended complaint.11

(qu oting Md. Rule 2

- 501(f)); see Dashiell v. Meeks , 396 Md. 149 (2006). The denial of a
technically sufficient motion for summary judgment “in favor of a full hearing on the

merits” does not necessarily con stitute an abuse of discretion , and w e are not persuaded

that it did in this case. See Fischbach , 187 Md. App. at 75

. Motion for Judgment.
Standard of Review

When we review a trial court ’ s ruling on a motion for judgment , we ask :

whether on the evidence adduced, viewed in t he light most favorable to the

non

- moving party, any reasonable trier of fact could find the elements of the tort by a preponderance of the evidence. . . . If there is even a slight amount of evidence that would support a finding by the trier of fact in fa vor of the plaintiff, the motion for judgment should be denied.
Washington Metro. Area Transit Auth. v. Djan , 187 Md. App. 487, 491

- 92 (2009).

Contentions
Giant contends that Ms. Webb’s “own admission and representations” indicate

tha t “ her sole theory o f liability in this case was based on premises liability, i.e. that Giant
breached a duty to one of its customers related to an unreasonably dangerous condition
on its premises.” And, more particularly, that “[her] theory of liability w as that the
operatio n of a pallet cart by Mr. Winzer during store hours created an unreaso nably
dangerous condition” for which Giant was vicariously liable based on the breach of a

non

- delegable duty. According to Giant, Ms. Webb did not plead or advance a theory of
negligen ce “ based on vicarious liability, until the [c] ourt granted the motion for judgment

on t he premises liability claims.” But even assuming that vicarious liability “was one of
[Ms. Webb’s] theories of negligence,” there was “insufficient evidence to support the12

existence of an employment relationship between Giant and Mr. Winzer and therefore no
grounds for Giant to be vicariously liable for Mr. Winzer’s actions.”
Ms. Webb contends that by pleading negligence, she had “pursued a vicariou s
liability theory f

rom the time of the filing of her Complaint,” and that Giant’s liability
was always based “ on the theory that [Giant was] vicariously liable for Mr. Winzer’s
actions due to the control and authority exerted over Mr. Winzer while he was working
on [Giant’s] premises.” 8 Pointing to the testimony of Mr. Coradini, Giant’s corporate
designee, 9 she asserts that Giant “controlled not only Mr. Winzer’s access to [its] store,

but also [his] beh avior while within the store.”
Analysis

The duty of care owed by an o wner or occupier of land to someone entering on the

property depends on whether the person “is an invitee, a licensee, or trespasser.” Rowley

v. Balt
, 305 Md. 456, 464 (1986)

. An “invitee” is “a person invited or permitted to enter

or remain on another’s property for purposes connected with or related to the owner’s

business.” Id. at 465. Without question, Ms. Webb was an invitee to whom Giant owed a
duty of “reasonable and ordinary care to keep [th e] premises safe for [her] and to pr otect

[ her ] from inj ury caused by an unreasonable risk which [she] , by exercising ordinary care

for [her ] own safety will not discover.” Id

. (citations omitted).

8 The Complaint indicates that Giant’s liability f or Mr. Winzer’s actions was based originally on his status as a Giant employee.

9 Mr. Coradini, testified: “if they’r e using a power jack, they . . . try to use a power jack, and they’re told not to. We can kick them out of the store if they’re abusing or not doing something properly.”13

As the Court of Appeals further explained i n Deer ing Woods Condo. Ass’n v.

Spoon
, 377 Md. 250 , 263 (2003), c iting Restatement (Second) of Torts § 343 :
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the

con dition, and should r ealize 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 t o protect them again st the danger. 10

(Emphasis added).

But the owne r or possessor of land is not “ an insurer of the safety of his customers
while they are on the premises and no presumption of negligence on the part of the owner
arises merely from a show ing that an injury w as sustained in his store.” Myers v. TGI
Friday's, Inc
., No. CIV. JFM 07

- 333, 2007 WL 4097498, at *4 (D. Md. Nov. 9, 2007)
(quoting Moulden v. Green belt Consumer Servs., Inc. , 239 Md. 229, 230 (1965)).
Mr. Winzer was employed by PepsiC o to deliver and sto ck PepsiCo products at
the Giant store, which he was doing when Ms. Webb was injured. As a general rule,

10 For example , “an employee of a business has a legal duty to take affirmative ac tion” to protect a business invitee who is in danger, “ provided that the employee has knowledge of the injured invitee and the employee i s not in the path of danger .” Southland Corp. v. Griffith , 332 Md. 704, 719 (1993) (emphasis added). And there is a d uty to protect an invitee from harm caused by the intentional acts of a third party when it is known or should be known that the acts are occurring or about to occur. Corinaldi v. Columbia Courtyard, Inc.
, 162 Md. App. 207
, cert. granted
, 388 Md. 404
, app eal dismissed
, 389 Md. 124 (2005)

.14

Giant would not be liable for the n egligence of a PepsiCo employee. As the Court of
Appeals has explained:

This common law princi ple is embodied in § 409 of the Restatement, which provides that, with some exceptions, “the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.” Although the

exc eptions to this rule are numerous, Comment b to § 409 of the Restatement explains that they generally “fall into three very broad categories: 1. Negligence of the employer in selecting, instructing, or supervising the contractor[;] 2. Non

- delegable 11 dutie s of the employer,

a rising out of some relation toward the public or the particular plaintiff[; and] 3. Work which is specially, peculiarly, or ‘inherently’ dangerous.” Under these exceptions, liability is imposed on the employer of an independent contrac tor under one of two theories: vicarious liability or “actual fault on the part of an employer.” Rowley , 305 Md. at 462, 505 A.2d at 497; Restatement §§ 410

– 415 introductory n. (discussing liability for harm caused by employers of independent contractors).

* * *

[A] n employ er is not liable for harm caused by the work of an employee so long as “the employee is ‘a contractor, pursuing an independent employment, and, by the terms of the contract, is free to exercise his own judgment and discretion as to the means and assistants that he may think proper to employ about the work, exclusive of the control and direction, in this respect, of the party for whom the work is being done.’” Gallagher’s Estate v. Battle
, 209 Md. 592, 601 (1956) (quoting Deford v. State ex rel. Keyser
, 30 Md. 179, 203 (1869)). When an employer has retained control of the details of the work, however, liability is permitted under a theory of actual fault. See Gallagher’s Estate
, 209 Md. at 601 (explaining that an employer ’ s liability un der respondeat super ior is predicated on the rationale that the employer ’ s control over the employee ’ s work renders the employer constructively present during the work, “so that the negligence of the servant is the negligence of the master”); Restatement § § 410

– 429

11 The Rowley Court stated that referring to the duty owed to an invitee as “non

delegable” was “som e thing of a misnomer” in that the duty of performance can be delegated but not “the risk of non

- performance of the duty .” 305 Md. at 466. There is no evidence of delegation in this case.15

introducto ry n. (referring to actual fault as the basis for imposing liability on employers under the retention of control doctrine set forth in § 414) [ 12 ] . . . . As this passage from the Restatement implies, and we have repeated throughout, the retention of con trol is an absolute prerequisite to an employer ’ s liability for harm caused by the work of an independent contractor.
Appiah v. Hall , 416 Md. 533, 551, 562

- 63 (2010)

. In denying the premises liability claim, the trial court did not find “enough

evidenc e in the record to say that there was something about those premises that created a
danger that would have resulted in the injury, ” which would include the use of pallet
jacks during store hours. 13 The court also granted Giant judgment on the count related to
negligent hiring, training, and “ supervision of its employee s/ agents. ” But
, referencing

Giant’s control over Mr. Winzer’s access to the store
, the court found that there was

sufficient evidence to “keep the case alive” against Gian t

.

12 Comment c. to § 414 of Restatement (Second) of Torts provides:
It is not enough that [the employee] has merely a general right to order the work stopped or resumed, to inspect its p rogress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is

con trolled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contracto r is not entirely free to do the work in his own way.

13 As a result, the jury was not “ to decide a premises liability case.” The instructions and the verdict sheet question affirmatively answered by the jury regarding negligence related to Mr. Winzer’s n egligence and whether he was an “agent, servant or employee” of Giant based on its control of his work. The jury did n ot answer whether Mr. Winzer “was an independent contractor and that his acts were authorized or intended by Giant.”16

Arguing in supp ort of that finding, Ms. Webb advances the following as evidence
of the requisite control over Mr. Winzer’s work:
(1) Mr. Winzer checked in with a Giant employee when he arrived at the store, and checked out when he left;

(2) Mr. Wi nzer used equipment owned by Giant, which had regulations on the type of equipment he could use when fulfilling his tasks in the store; 14
(3) Citing Giant’s corporate designee’s testimony, Ms. Webb states that Giant controlled “ Mr. Winzer’s behavior while within the store”: “ [W]e can kick them out of the store if they were abusing or not do ing something properly.”

But “ [g]eneral control over an independent contractor’s work ” would not be
sufficient to extend liability to Giant for Mr. Winzer’s actions. See Appiah
, 416 Md. at
563 (emphasis added). To do that, it would be necessary to demonstrate that Giant had

“retained control over the operative detail and methods ” of Mr. Winzer’s work , including

“ the very thing from which the injury arose. ” Id. at 555 (citing Gallagher’s Estate , 209

Md. at 602). To the extent that Ms. Webb’s injury “ arose” out of Mr. Winzer’ s use of an
unpowered pallet jack in his work, Giant’s control extended only to a prohibition against
the use of powered jacks by any vendor.

14 Ms. We bb argues that some stores do not allow pallet jack s during regular business hours but what Mr. Winzer testified to was that so me stores do not permit powered pallet jacks on the floor during certain hours. Giant is one of those stores. The record does not indicate any prior issues having arisen from the use of non

- powered pallet jacks by Mr. Winzer or the employees of any other v endors who did not have their own. Because powered jacks were not permitted, Giant provided non

- powered jack s for the vendors to

use.17

In sum, correcting a ve ndor observed using a pallet jack improperly
, requir ing a
vendor to check in and out, to stock in a particular location of the store, permitting only

non

- powered jacks, and “sometimes” checking the vendor’s work

— do not indicate

sufficie nt control over the “methods” and “operative detail” of Mr. Winzer’s work to

extend liability on Giant for his actions

. See Appiah , 416 Md. at 565. Rather than a right

to supervis e Mr. Winzer’s work, the se are general rights that a possessor of the premi ses

on which the wor k is being done would ordinarily retain for itself. For this reason, we

hold , as a matter of law, that the evidence was insufficient to submit the vicarious
liability claim to the jury, and that Giant’s motion for judgment should have been
granted.

II.

T he Denial of Giant’s Motion in Limine

Standard of Review
Evidentiary rulings are “left to the sound discretion of the trial judge and will only
be reversed upon a clear showing of abuse of discretion.” Ayala v. Lee , 215 Md. App.

457, 474

– 75 (2013) (quoti ng Malik v. State , 15 2 Md. App. 305, 324 (2003) ) . A n abuse

of discretion is when “no reasonable person would take the view adopted by the [trial]
court,” or when “the court acts without reference to any guiding rules or principles.”

Po well v. Breslin , 430 Md. 52, 62 (2013) (internal quotation marks and citation omitted).

Contentions

Giant con tends that, by denying the motion in limine , the court “improperly
allowed [Ms.] Webb’s counsel to interject ‘Reptile Arguments’ into trial

. ” M ore18

specifically, it ar gues that her argument that Giant had a duty to keep her safe was “not an

accurate sum mation of the law in any way.” In its view, t his error was especially
prejudicial in light of the trial court’s determination that “there was insuffic ient evidence

of a d angerous condition to support a theory of negligence predicated on premises
liability
, ” which meant that there was no breach of a “ non

- delegable duty.” Giant asserts
that, by denying the motion, the court “openly invited” the jury “to l ook beyond the law,
put themselves in the place of [Ms.] Webb, and punish a corporate defendant regardless

of fault.”
Ms. Webb contends that Giant’s arguments were not preserved for our review
because Giant never objected to any arguments that she made. In addition, she co ntends

that they are “entirely without merit,” because “at no point” did she ask the jury to “put

themselves in her shoes.”
Analysis

A Reptile T heory approach is similar to a Golden Rule argument . It encourages
jurors to favor persona l safety and the pro tection of family and commu nity; Golden Rule

argument s “appeal [] to the jury’s own interests” and ask jurors “ to place themselves in

the shoes of the victim.” Lee v. State , 405 Md. 148, 171 (2008) (internal citations

omitted). When su ch arguments “invite [] the jurors to disregard their oaths and to

become non

- objective viewers of the evidence which has been presented to them, or to go19

outside that evidence to bring to bear on the issue of damages purely subjective

considerations” they are improper. 15 Leach v. Metzger , 241 Md. 533, 536

- 37 (1966).

Here, some comments by Ms. Webb’s counsel in both opening and closing

statements might be understood as encouraging the jurors to make Giant an insurer of its

customers ’ safet y while on its premises. 16 But they were not object ed to. Instead, Giant
responded in its closing:
I feel that there is complete disregard for the actual facts and evidence that you’ve heard . . . when I listened to [what Ms. Webb’s counsel] said, your jo b is to assess community safety standard s. For about 20 minutes, [the trial court] delivered the law. She delivered the instructions that you are to consider. And nowhere in those instructions are we charging you to be the guardians of the public safety . Nowhere.
An objection to an imprope r argument must be “interposed either (1) immediately
after the allegedly improper comments are made, or (2) immediately after the arg ument is
completed.” Grier v. State , 116 Md. App. 534, 545 (1997). And, i n its ruling on the

motion in limine
, the trial c ourt essentially invited an objection if Ms. Webb argued for
“a higher duty . . . no t supported by the instructions. ”

In short, the issue was not adequately preserved for our review

.

15 Prior to submitting the case to the jury, the trial court instructed the jurors to base their findings only upon the testimony, exhibits, and stipulations of the parties, “including any conclusions which may be fairly drawn from that evidence.” And that “[o]pening statements and arguments of the lawyers are not evidence in this case.”

16 As noted above, the case wen t to the jury based on Mr. Winzer’s negligence. Because neither Mr. Winzer nor PepsiCo could be held liable for his negligence, recovery was dependent on the extension of liability to Giant beyond its duty to Ms. Webb as an invitee.20 I II

. Spoliation
Standard of Review

In deciding whether to gr ant a requested jury instruction, a trial court must
consider “whether the requested instruction was a correct exposition of the law, whether
that law was applicable in light of the evidence before the jury
, and finally whether the
substance of the request ed ins truction was fairly covered by the instruction actually
given.” Malik v. Tommy’s Auto Serv., Inc. , 199 Md. App. 610, 616 (2011) (citation

omitted)

. We review the grant or denial of an instruction for an abuse of discretion.
Steamfitters Local Union No. 60 2 v. Erie Ins. Exchange , 231 Md. App. 94, 124 (2019)
(citing S & S Oil, Inc. v. Jackson , 428 Md. 621, 640 (2012)).

Contentions
Giant contends that the trial court abused its discretion in giving the jury a
spoliation instruction that was “based o n pure speculation that: 1) video footage of the

incident existed; and 2) the al leged footage was destroyed.”
Ms. Webb contends that Giant’s “actions clearly demonstrate the propriety of the
spoliation instruction given to the jury.” She points to Mr. C oradin i’s statement that Giant
has “probably upwards of 30

- some cameras” positioned “throughout the entire store” that
were “in place at the time of the incident in question,” and argues that Mr. Coradini’s
testimony “both in his deposition and at trial, p rovide d far more evidence regarding the
existence of camera footage of the subject area at the time of the incident at issue than
[Giant] references either in [its] motion or [its] brief.”21 Analysis

Mr. Coradini was asked in a discovery deposition if ther e was video footage of the

incident, to which he responded: “I don’t know.” Giant’s counsel, referring to Giant’s
earlier response to a document request, then stated on the deposition record that there was

no video foota ge of the incident.

At trial, Mr. Coradi ni testified that, after his deposition, he personally contacted
MAC Risk Management to determine whether there was any video footage of the

incident, and was notified
, consistent with Giant’s response to the earlier document
request and his depositi on res ponse that “[n]o video of that incident was captured

. ” 17

When she first submitted proposed jury instructions, Ms. Webb requested an
instruction on spoliation. In response, Giant asked that the trial court deny the instruction
request and preclude h er fro m inferring or arguing that video surveillance of the incident
had been destroyed. The court deferred ruling on the sp oliation instruction at that time

. Later, when Ms. Webb’s counsel again requested a spoliation instruction, Giant’s

counsel stated :

[T]h is whole notion of spo[li]ation is based on nothing but rank speculation and there’s no foundation that there was any video to be preserv[ed] or that there was any destruction of evidence. To allow [Ms. Webb’s counsel] to ask questions to engage in specul ation

– just engages in

17 On cross

- examinatio n, the following exchange ensued:
[Ms. Webb’s counsel]: Why did you say at the deposition that you didn’t know whether v ideo existed or not?
[Mr. Coradini]: Because I, like I said, the research was done. . . . you didn’t ask if I physically did the resear ch.22

speculation, there’s just no evidence for it to be

– and all it would do is serve to prejudice my client to ask questions about something without any foundation that would require the jury at the end of the case to engage in

n othing but speculation.
The court granted Ms. Webb’s request and, using Maryland Civi l Pattern Jury Instruction

(MPJI

- Cv) 1:16 , instructed the jury :
The destruction of or the failure to preserve evidence by a party may give rise to an inference unfavor able t o that party. If you find that the intent was to conceal the evidence, the destruction or failure to preserve must be inferred to indicate that the party believes that his or her case is weak and that he or she would not prevail if the evidence was p reserv ed. If you find that the destruction or failure to preserve the evidence was negligent, you may, but are not required to, infer that the evidence, if preserved, would have been unfavorable to that party.
Spoliation is “ [ t ] he intentional destruction , muti lation, alteration
, or concealment

of evidence, usu [ ally ] a document.” Keyes v. Lerman , 191 Md. App. 533, 537 (2010)
(quoting Black’s Law Dict., 8th Ed. (2004) at 1437). A spoliation i nstruction is given in

a civil case when “ a party has destroyed or fai led to produce evidence.” Cost v. State , 417

Md. 360, 370 (2010)

. The instruction addresses :

the destruction or failure to preserve evidence, rendering it unavailable, and not merely the failure to produce evidence that is available, or, indeed, the failu re to create evidence, but, for purposes of the permissible inference, it does distinguish between destruction or failure to preserve with an intent to conceal the evidence and destruction or failure to preserve that is the product of negligence

.

Ke yes , 1 91 Md. App. at 540.

But before the instruction was given, Ms. Webb, “ [ b ] y nece ssity
, ” had the burden

to establish and the court would have to find that the video “actually existed.” Solesky v.

Tracey
, 198 Md. App. 292, 309 (2011) . There can be no act of destruction or failure to23

preserve evidence not proven to exist, and therefore no act or omission from which

inference s can arise.
According to the document request response and Mr. Coradini ’s deposition and

trial testimony, “no video of the area wh ere the fall occurred was found. ” In other words
,
there is no direct evidence that a video of the incident actually existed or that it was
destroyed or otherwise not preserved.
Ms. Webb offers the following circumstantial evidence to establi sh its existence :
(1) the number of cameras positioned throughout the store pointing in “every direction”
including “around the frozen food section”; 18 (2) the store report created on the day of the
incident; and (3) her demand to MAC Risk Management on Dec ember 16, 2014 t o
preserve and not destroy the video of the incident.

On this record, the number of cameras in the store , including cameras or a camera

“around” the frozen food aisle, do not support a factual finding that a video of the

incident “ actual ly existed.” No r do t he store report and the demand to MAC Risk

Management support the likelihood of its existence. To borrow from MPJI

- Cv 1.8, which
was given in this case, the cameras are, at most, deer tracks in the snow, but they are not
necessarily t racks of a parti cular deer

— in this case, a video of the incident. D epending

on operability and direction, they may support the video ’ s possible existence , but not its

actual existence.

18 When Mr. Coradini testified, he said that there were “roughly, give or take” 30 cameras in the store, which was a n estimation of the screens seen in the “loss prevention room,” but that he did not have access to the “ actual angles they’re facing.”24

The failure of the multiple cameras to capture the incident could be g rist for

credibi lity and argument mill s , but it would not justify a spoliation instruction

.

I nstructions “as to facts and inferences” are not normally required . A nd when missing
evidence permits multiple inferences to be drawn, a trial judge’s “ emphasis o f one
possible i nference out of all the rest

. . . can be devastatingly influential upon a jury
although unintentionally so.” Keyes , 191 Md. App. at 542 (quoting Yuen v. State
, 43 Md.
App. 109, 114 (1979)). That said, we do not reverse a trial court’s de cision on a jury

instruction in the absence of prejudicial harm

. Barksdale v. Wilkowsky , 419 Md. 649, 669

(2011) (holding that “ a party challenging an erroneous jury instruction in a civil case
must demonstrate to the court why the error was prejudicial”).

Giant argues that it was prejudiced because the instruction “ permitted [Ms.]
Webb’s counsel to lead the jury away from the actual evidence presented in this case ,”

and that “[t]he only purpose for [Ms.] Webb to even reference spoliation was to unfairly
prejudice the ju ry.” Ms. Webb responds that Giant suffered “no harm” from the
instruction because its language gave “ the jury the opportunity to weigh the evidence and

reach their own conclusions.” 19

Here, the only witnesses to the incident were Ms. Webb and Mr. Winzer, which

made their respective credibility an issue. In closing, Ms. Webb’s counsel directed the
jury’s attention to the instruction: “I really want you to pay close attention to [the

19 The language of the instruction presumes the existence of the evidence and its destruction or the failure to preserve i t . The permitted conclusions relate to the intent to conceal and the required or permitted inferences.25

spoliation instruction] that the judge gives you” and the n read the instruc tion to the jury.
He then asked the jury if they “ really believe that there’s no video footage of the

incident” and asserted “[t]here’s almost always video footage” and if there was, it “would
probably corroborate and be consisten t with Ms. Webb’s descript ion” of what happened.

An instruction that “is misleading or distracting for the jury, and permits the jury
members to speculate about inapplicable legal principles,” is potentially prejudicial.

Barksdale , 419 Md. at 669

. Here, t he jury was invited and permitted by the instruction, to
engage in speculation regarding concealment, destruction, and failure to preserve

evidence that was not shown to actually exist. A ccording to the Court of Appeals, “the
mere inability of a reviewing court t o rule out preju dice, given the facts of the case, may
be enough to declare an error reversible.” Barksdale , 419 Md. at 669

. P rejudice cannot

be ruled out in this case . Had we not already reversed the judgment based on vicarious
liability, we would also reverse the j udgment based on the spoliation instruction and

remand to the circuit court for a new trial.

JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; CASE REMANDED TO THE CIRCUIT COURT TO ENTER JUDGMENT IN FAVOR OF GIANT; COSTS TO BE PAID BY APPEL LEE.