UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VIRGINIA C. PIELKE,

Plaintiff-Appellant,

v. No. 97-1525

HOME DEPOT U.S.A., INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge.

(CA-96-3649-AMD)

Argued: June 2, 1998

Decided: July 15, 1998

Before WILKINSON, Chief Judge, and NIEMEYER and

MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Kreg Paul Greer, LAW OFFICES OF KREG PAUL

GREER, Towson, Maryland, for Appellant. Christopher Michael

Cihon, JACKSON & CAMPBELL, P.C., Washington, D.C., for

Appellee. ON BRIEF: Michael J. McManus, Scott Alton Mills,

JACKSON & CAMPBELL, P.C., Washington, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

Local Rule 36(c).

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OPINION

PER CURIAM:

Virginia C. Pielke sued Home Depot U.S.A., Inc. ("Home Depot")

for injuries she sustained while shopping at one of its stores. The district court granted Home Depot's motion for judgment on the pleadings. We affirm.

I.

According to the complaint, Home Depot owns and manages a

number of retail self-service stores selling materials, tools, and equipment used to build, repair, and maintain houses. Among the available

merchandise, it sells lumber, pipes, and other large heavy items. On

or about November 1, 1993, Pielke and her husband were shopping

in Home Depot Store No. 2504 in Towson, Maryland to purchase

supplies for a home repair project.

After selecting several items, Pielke and her husband took them to

a cashier's line in the front of the store. While her husband waited in

line, Pielke decided to search for other items and began to walk

through the store. As she was walking along an aisle near the store's

Small Tools section, she was struck on the head by a section of heavy

pipe, at least eight feet long. A customer was purchasing the pipe at

a nearby cashier station. The counter at this station was much shorter

than the pipe, requiring one either to hold the pipe vertically or to lay

it across the counter and partly obstruct the aisle. After she was hit,

Pielke turned toward the cashier station and saw a male customer and

a female employee looking at her; the employee was laughing. After

the male customer completed his purchases, he picked up the heavy

pipe and left the area, apologizing to Pielke as he passed her. The

employee did not attempt to ascertain the extent of Pielke's injuries

or to learn the identity of the male customer.

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Pielke's husband found her standing in the aisle near the Small

Tools section. He accompanied her to a nearby bench and summoned

the manager. Daron Duvall, the store manager, soon arrived at the

scene. Pielke's husband explained what had occurred and asked

Duvall to bring his wife a drink of water. Duvall agreed but did not

return until approximately forty-five minutes later, only after Pielke's

husband had paged him. Upon his return, Duvall explained that Home

Depot was not responsible for the accident, that he would not fill out

an accident report, and that they should have obtained the name of the

customer who had apologized to her.

Since the accident, Pielke has suffered from severe tightness and

pain in her neck and shoulders, severe headaches, pain in her jaw, and

sinus problems. Also as a result of the accident, she has a posterior

vitreous detachment with a large floater in her right eye, causing her

to see a large black dot obstructing her field of vision in certain circumstances.

Pielke filed a two count complaint in Maryland Circuit Court,

which Home Depot later removed. Count One alleged that Home

Depot failed to protect Pielke from the risk of injury by other customers. Count Two alleged that Home Depot ignored its affirmative duty

to determine the extent of Pielke's injuries, to offer and obtain emergency medical assistance, and to ascertain the identity of the male

customer. After the district court granted judgment in Home Depot's

favor, Pielke brought this appeal.

II.

We turn first to Pielke's claim that Home Depot was negligent in

failing to protect her from the dangerous condition created by customers' mishandling of merchandise. Pielke maintains that Home Depot

should have taken a number of steps to reduce the risk of injury in

these circumstances such as warning customers of the risk of falling

items and directing customers not to purchase long items at short

counters. The district court dismissed this claim, reasoning that the

risk of injury was open and obvious to Pielke and, alternatively, that

the complaint did not allege that Home Depot had actual or constructive knowledge of this type of risk. We conclude that any risk to

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Pielke was open and obvious and, therefore, agree with the district

court's dismissal of this claim.

Since Pielke was a customer at the time of the accident, she is considered an invitee under Maryland law, see Houston v. Safeway

Stores, Inc., 697 A.2d 851, 858 (Md. 1997), and Home Depot was

required to use ordinary care to keep its premises safe and to protect

her from injury caused by unreasonable risks about which it knew or

could have discovered and that she was unlikely to discover. See

Giant Food, Inc. v. Mitchell, 640 A.2d 1134, 1135 (Md. 1994); Wells

v. Polland, 708 A.2d 34, 39-40 (Md. Ct. Spec. App. 1998). It is true

that in Maryland this duty may require storekeepers to protect invitees

from some dangers caused by the negligent acts of customers. See

Mitchell, 640 A.2d at 1135; Eyerly v. Baker , 178 A. 691, 694 (Md.

1935). However, "[a] storeowner's duty to guard his invitees from the

actions of third persons manifestly will not exceed, either in kind or

degree, his general duty to such invitees." Litz v. Hutzler Bros. Co.,

314 A.2d 693, 697 (Md. Ct. Spec. App. 1974); see also Tennant v.

Shoppers Food Warehouse Md Corp., 693 A.2d 370, 375 (Md. Ct.

Spec. App. 1997) (noting the limitations on a storekeeper's liability

for dangers created by third parties).

A storekeeper's general duty does not extend to dangerous conditions that are open and obvious to the invitee. See Lloyd v. Bowles,

273 A.2d 193, 196 (Md. 1971); Tennant, 693 A.2d at 374; Litz, 314

A.2d at 697; see generally Restatement (Second) of Torts § 343A. In

Tennant, the Maryland Court of Special Appeals recently reaffirmed

this essential limitation on a storekeeper's liability:

Like the owner, the invitee has a duty to exercise due care

for his or her own safety. This includes the duty to look and

see what is around the invitee. Accordingly, the owner or

occupier of land ordinarily has no duty to warn an invitee

of an open, obvious, and present danger.

693 A.2d at 374 (citing Casper v. Charles F. Smith & Son, Inc., 560

A.2d 1130 (Md. 1989)). To impose liability under such circumstances

would effectively make the storekeeper an insurer of a customer's

safety, a proposition repeatedly rejected by the Maryland courts. See,

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e.g., Mitchell, 640 A.2d at 1135; Moulden v. Greenbelt Consumer

Servs., Inc., 210 A.2d 724, 725 (Md. 1965).

Pielke's first negligence claim must fail because the risk of injury

from a customer's mishandling of merchandise was open and obvious. Pielke clearly had a duty to exercise due care for her own safety.

As part of this duty, a customer in a self-service store can be expected

to watch out for other customers hauling heavy merchandise that

might easily be fumbled or dropped. Indeed, according to the complaint, Pielke presumably was aware of this risk. She had entered the

store with her husband to purchase various supplies and items for a

home repair project and, prior to the accident, had taken those items

to another cashier station, engaging in the very sort of activity that led

to her injury.

In a similar case, the Maryland Court of Special Appeals held that

a storekeeper did not have a duty to protect against such third-party

acts. See Litz, 314 A.2d at 697-98. In Litz, a customer who had

entered a store's revolving door was injured when two boys followed

close behind her and spun it with great force. Id. at 694. In rejecting

a claim that the storekeeper had the duty to protect the customer from

the risk of this sort of injury, the court observed:

[t]hat risk is not, however, an unreasonable risk such as

gives rise to a duty to warn of danger incident to it. The

inherent risk was as well known to its user as to the storeowner.

Id. at 697. Like the risk of injury from the revolving door in Litz, the

risk of injury from customer mishandling of merchandise was "as

well known to [Pielke] as to [Home Depot]." Thus, this risk did not

give rise to a duty for Home Depot, and the district court properly dismissed this claim. Cf. Kight v. Bowman, 333 A.2d 346, 351 (Md. Ct.

Spec. App. 1975) (sustaining demurrer in negligence action where

defendant had no duty); Lusby v. Baltimore Transit Co., 72 A.2d 754,

756-57 (Md. 1950) (same).

III.

We next turn to Pielke's claim that Home Depot was negligent in

failing to provide assistance after the accident had occurred. She

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advances two theories: (1) that Home Depot breached the storekeeper's duty to provide emergency medical assistance to its customers

and (2) that Home Depot was required to ascertain the identity of the

customer whose pipe had struck her.

The district court properly dismissed this claim under both theories.

Though Maryland storekeepers sometimes have a duty to provide aid

to an invitee, see Southland Corp. v. Griffith , 633 A.2d 84 (Md.

1993), Home Depot's duty, if any, surely terminated once her husband arrived at the scene of the accident. See Restatement (Second)

of Torts § 314A cmt. f (storekeeper not required "to give any aid to

one who is in the hands of apparently competent persons who have

taken charge of him"); see also Griffith, 633 A.2d at 91 n.8 (looking

to comment f to "further clarify the rule"). Moreover, Pielke has cited

no authority to support her novel argument that storekeepers have a

duty to ascertain the identity of a customer who caused an accident.

As a federal court, we are loath to enlarge the circumstances of liability beyond those boundaries carefully crafted by the Maryland courts.

IV.

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

court.

AFFIRMED

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