Buck v. Acme Markets, Inc.

456 A.2d 47, 53 Md. App. 151, 1982 Md. App. LEXIS 391
CourtCourt of Special Appeals of Maryland
DecidedDecember 6, 1982
Docket1605, September Term, 1981
StatusPublished
Cited by5 cases

This text of 456 A.2d 47 (Buck v. Acme Markets, Inc.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buck v. Acme Markets, Inc., 456 A.2d 47, 53 Md. App. 151, 1982 Md. App. LEXIS 391 (Md. Ct. App. 1982).

Opinions

Mason, J.,

delivered the opinion of the Court. Bishop, J., dissents and files a dissenting opinion at page 158 infra.

Appellants, Edward A. Buck and his wife (Buck), filed suit in the Superior Court of Baltimore City, alleging negligence against appellee, Acme Markets, Inc. (Acme) and Green Investigation Associates, Inc. (Green). After extensive discovery proceedings, appellees filed and were granted motions for summary judgment. Buck appeals and argues that the court erred in granting the motions for summary judgment because two material facts were genuinely in dispute.

1. Whether the area where appellant was injured was a public street; and
2. Whether the area where appellant was injured was within the possession and control of Acme Markets, Inc.

The record reveals that on 9 October 1978 between 7:30 and 8:00 p.m., Buck, while acting in the course of his employ[153]*153ment for Taynton Freight Systems, delivered a truckload of food products to the Acme Markets Distribution Center in West Baltimore. Buck backed his tractor trailer into the loading dock of the Acme warehouse which abuts the westside of Smallwood Street. The trailer was positioned perpendicular to the loading dock, and the tractor was "jacknifed” toward Lafayette Avenue, leaving a sufficient area on Smallwood Street for other vehicles to pass. While the trailer was being unloaded, Buck was approached by two men who inquired if he needed help in unloading his truck. It was a common practice of independent truckdrivers to hire men off the street to assist in unloading their trailers. In fact, Buck recognized the two men as individuals who were hired by a companion driver to unload a trailer during a prior visit to Acme about six months earlier. After being told that no assistance was needed, one of the men told Buck that a window in the cab of his truck had been broken. When Buck went to the front of the tractor to inspect the cab window, he was shot in an attempted holdup.

I

Buck’s contention that there was a genuine dispute as to whether the shooting occurred on a public street was based solely on the deposition of Officer Paul Sharpley which, in relevant part, reads as follows:

" 'A. ... The loading dock would be right here. This is the Acme warehouse. What throws me off on this map is you got Smallwood Street. I don’t know how Smallwood Street comes in there.
A. I never knew, that v/ould be the 900 block of Smallwood. As far as I know there is no 900 block of Smallwood. I never knew that. Is this an old map, sir?
Q. Is there not a street that runs alongside the loading dock area?
A. A street?
[154]*154Q. Yes, that runs right up against the loading dock?
A. Here’s a street I never knew was Smallwood Street. This is the Acme warehouse where the loading dock is. I’m familiar with this.. ..
Q. You do not know the name of the street on which you turned right?
A. I never knew it was Smallwood. You got me on that. Smallwood, as long as I’ve been up there I never knew it as Smallwood Street. It’s never even been posted. I never seen a posted street sign. Of course, there’s no traffic goes up there except for the Acme trucks. It’s not a public street, let’s put it that way. I mean it’s not used by anybody but Acme warehouse.
Q. You say this is not a public street?
A. As far as I know. You see, you are showing me Smallwood Street. I never knew that was Smallwood Street as long as I’ve been up there. I’ve been there 24 years and I never knew that was Smallwood Street.
A. I was not familiar with Smallwood Street there. If I got a call to the 900 block of Smallwood Street I would tell the dispatcher there’s no such location.
(The Witness) You really surprised me, sir, on Smallwood Street. I’ve handled hundreds of calls there, in that area, but I never knew that was Smallwood Street. I just wondered where the information comes from. If this is a 1938 map, I don’t know, you know, this could be an old map. Of course, I don’t know how old the Acme warehouse is either.
Q. And after having looked at the map that Mr. [155]*155Nickerson exhibited and based on your 23 years of experience in that district, did you consider that loading dock area Smallwood Street?
A. No, sir.’ ”

The evidence submitted by Acme, which was undisputed, showed that Buck was shot on a public street, that title of the street was vested in the Mayor and City Council of Baltimore, and that the street was designated on city plats as the 900 block of Smallwood Street.

We think that Officer Sharpley’s lack of knowledge that the street where the shooting occurred was a public street, i.e., 900 block of Smallwood Street, was completely irrelevant and lacked sufficient evidentiary value to create a triable issue of a material fact.

II

Buck also argues that there was a genuine dispute as to whether the area where he was injured was within the exclusive possession and control of Acme. The only evidence in the record that lends any support to this exclusive possession and control argument is that part of Officer Sharpley’s deposition which states: "Of course, there’s no traffic goes up there except for the Acme trucks. It’s not a public street, let’s put it that way. I mean it’s not used by anybody but Acme warehouse.”

Acme did not deny that it uses a substantial portion of Smallwood Street in conducting its business, but it denied it had exclusive control and possession of the street or that it was responsible for vehicular or pedestrian security on the street. Regarding Acme’s possession and control of the area, a pertinent part of the deposition of William V. Skarzinski, Distribution Manager, reads as follows:

"Q. And isn’t it true, that Acme was almost the exclusive user of all of that area where the loading docks are located, north from Lafayette Avenue up to Mosher Street?
[156]*156A. No, they weren’t.
Q. Who else used it?
A. The public. There was no way I could keep the public from driving through there, or anybody else. They drove cars through there, they walked through there. It was a public street, is what it is.
Q. And would you agree that 90 per cent or more of the traffic, through, in, or out of that area, involved the business of Acme?
A. That is tough. I couldn’t — I would say Acme had a good portion of it, but I wouldn’t venture to say 90 percent.
Q. What would you say?
A. Maybe we could go — we could probably stretch it to 80.”

In addition, Vernon Green, President of Green Investigation Associates, stated in his deposition and answers to interrogatories that his agency did not have the responsibility for keeping the area clear of loiterers, nor did it have a right to control vehicular traffic on the public streets surrounding Acme.

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Buck v. Acme Markets, Inc.
456 A.2d 47 (Court of Special Appeals of Maryland, 1982)

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456 A.2d 47, 53 Md. App. 151, 1982 Md. App. LEXIS 391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buck-v-acme-markets-inc-mdctspecapp-1982.