Faloni v. Ocean Enterprise 589, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NANCY FALONI, 	*
Plaintiff, 	*
v. 	* 	Civil Action No. CJC-25-0413
OCEAN ENTERPRISE 589, LLC, 	*
Defendant. 	*
MEMORANDUM OPINION
This case involves a negligence claim brought by Plaintiff Nancy Faloni. Before the
Court is Defendant Ocean Enterprise 589, LLC’s (“Ocean Enterprise”) Motion for Summary
Judgment (“the Motion”). ECF No. 30. Ocean Enterprise contends that Ms. Faloni cannot prove
that Ocean Enterprise was negligent under the doctrine of premises liability. In the alternative,
Ocean Enterprise argues that Ms. Faloni was contributorily negligent or assumed the risk of her
injuries. ECF No. 30. The Motion is ripe for review, and no hearing is necessary. Loc. R. 105.6
(D. Md. 2025). For the reasons explained below, the Court grants the Motion.
BACKGROUND1
Shortly before 8:00 p.m. on August 11, 2022, Ms. Faloni and two other individuals
parked their car in the parking lot of the Ocean Downs Casino (the “Casino”). Security Camera
Video of Incident, Attach. A to Ocean Enterprise’s Ex. 1, at 19:49:30 [hereinafter “Surveillance
Video”]; ECF No. 30-4.2 The group exited the car and walked toward the entrance to the Casino.
1 The facts presented here, though undisputed, are recited in the light most favorable to Ms. Faloni
as the non-moving party. Tekmen v. Reliance Standard Life Ins. Co., 55 F.4th 951, 958 (4th Cir.
2022).
2 	The 	Court 	cites 	to 	specific 	portions 	of 	the 	Surveillance 	Video 	by 	the 	timestamp
(Hours:Minutes:Seconds) indicated at the bottom right of the frame.
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Surveillance Video 19:51.00. The conditions that evening were sunny and clear as the group
walked through the parking lot. See Surveillance Video 19:51:00.
During their walk, the group approached an in-ground electrical panel. Surveillance
Video 19:51:37. The electrical panel rose no more than a few inches above the surrounding
pavement. See Surveillance Video 20:23:55. While much of the pavement in the parking lot was
black, the pavement immediately surrounding the electrical panel was gray, and the electrical
panel itself was an even lighter gray. Surveillance Video 19:51:00. There were no objects
obstructing the view of the electrical panel, and the electrical panel was not covered by any
visible debris. Surveillance Video 19:51:00.
As Ms. Faloni was walking, she tripped on the electrical panel, fell onto the pavement,
and suffered injuries. Surveillance Video 19:51:45; ECF No. 30-4.
As a result of her fall, Ms. Faloni filed this negligence action against Ocean Downs, LLC
(“Ocean Downs”) in the Circuit Court for Worcester County on January 7, 2025. ECF No. 34-2.
Ocean Downs removed the case to this Court on February 10. ECF No. 1. On March 27, Ms.
Faloni moved to amend her complaint by interlineation to name Ocean Enterprise as the proper
defendant rather than Ocean Downs, and the Court granted the motion that same day. ECF Nos.
27, 28. As a result, Ocean Enterprise is the sole defendant in this case.
On August 4, 2025, Ocean Enterprise filed the instant Motion. ECF No. 30. Ms. Faloni
filed her response on August 21. ECF No 34. On September 12, Ocean Enterprise filed its reply.
ECF No. 37.
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SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall
grant summary judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In other
words, summary judgment is appropriate when the evidence ‘is so one-sided that one party must
prevail as a matter of law.’” Tekmen v. Reliance Standard Life Ins. Co., 55 F.4th 951, 959 (4th
Cir. 2022) (citation omitted). A material fact is one that “might affect the outcome of the suit
under the governing law.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir.
2013) (citation omitted). A genuine dispute over a material fact exists “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, to demonstrate a genuine dispute of material fact,
the nonmoving party must present sufficient evidence for a reasonable jury to rule in their favor
on each essential element of their claim. See id.
DISCUSSION
In her Complaint, Ms. Faloni alleges that Ocean Enterprise was negligent under the
doctrine of premises liability because the electrical panel, over which she tripped, was an
unreasonably dangerous condition. ECF No. 34-2 at 2.3 Ocean Enterprise argues that it is entitled
to judgment as to Ms. Faloni’s negligence claim because it did not breach the duty owed to her.
Ocean Enterprise raises several different theories in this regard. First, Ocean Enterprise contends
that Ms. Faloni cannot establish that a dangerous condition existed on its property by virtue of
the electrical panel. Second, Ocean Enterprise argues that the electrical panel did not pose an
3 Citations to the parties’ filings refer to the page number provided in the CM/ECF filing header,
not the PDF pagination.
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unreasonable risk to Ms. Faloni. Third, and relatedly, Ocean Enterprise argues that, to the extent
the electrical panel posed any risk to Ms. Faloni, it was de minimis and consistent with the
ordinary imperfections of parking lots and other public areas. Fourth, Ocean Enterprise argues
that, assuming any alleged defect existed, it was open and obvious to Ms. Faloni and she should
have exercised reasonable care to observe the alleged defect. Fifth, Ocean Enterprise contends
that it was not on notice of any alleged defect in the pavement at or near the electrical panel.
Sixth, Ocean Enterprise argues that Ms. Faloni lacks the required expert testimony to establish
that Ocean Enterprise was on constructive notice of the alleged defect. Finally, Ocean Enterprise
contends that even if the Court finds that it was negligent, it cannot be held liable because Ms.
Faloni was either contributorily negligent or assumed the risk of being injured. ECF No. 30-1 at
3–4.
Under Maryland law, a plaintiff asserting a claim for negligence must prove (I) that the
defendant owed plaintiff a duty; (II) that the defendant breached its duty; (III) that the plaintiff
suffered an injury; and (IV) that the plaintiff’s injury was proximately caused by the defendant’s
breach. Duncan-Bogley v. United States, 356 F. Supp. 3d 529, 534 (D. Md. 2018). In a premises
liability case like this one, “the duty of care owed by an owner or occupier of a premises is a
function of his legal relationship to the person entering on the premises.” Purviance v. Michaels
Stores, Inc., Civil Action No. PX-23-1665, 2025 WL 696555, at *2 (D. Md. Mar. 4, 2025)
(citation omitted). A person “invited or permitted to enter another’s property for purposes related
to the landowner’s business” is considered an invitee, to which the landowner owes the “highest
duty.” Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md. App. 381, 388 (1997) (citation
omitted).
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A property owner breaches their duty to an invitee based on injuries sustained by a
condition on the owner’s property if: (A) an unreasonably dangerous condition exists on the
property; (B) the condition is not an open and obvious danger to an invitee; (C) the property
owner has notice of the unreasonably dangerous condition; and (D) the property owner fails to
exercise reasonable care to protect the invitee against the danger. Giant of Maryland, LLC v.
Webb, 249 Md. App. 545, 562, aff’d, 477 Md. 121 (2021).
The Court agrees that Ocean Enterprise is entitled to judgment on Ms. Faloni’s
negligence claim because, although Ocean Enterprise owed a duty to Ms. Faloni as an invitee,
there is no genuine dispute of material fact that Ocean Enterprise did not breach this duty.
Specifically, the electrical panel was not an unreasonably dangerous condition, and, even if it
was, the electrical panel was open and obvious to Ms. Faloni. Because Ms. Faloni cannot
establish that Ocean Enterprise breached its duty of care, her negligence claim fails.
I. 	Ocean Enterprise Owed a Duty to Ms. Faloni as an Invitee.
The parties do not dispute that Ms. Faloni was an invitee.4 As noted above, an invitee is
defined as a person “invited or permitted to enter another’s property for purposes related to the
landowner’s business.” Tennant, 115 Md. App. at 388. Ms. Faloni was visiting Ocean
Enterprise’s property as a “patron” of the Casino, and thus Ms. Faloni’s purpose for visiting the
property was connected to Ocean Enterprise’s business. ECF No. 30-4 at 1. As an invitee, Ocean
Enterprise owed Ms. Faloni a duty to exercise “reasonable and ordinary care to keep [the]
premises safe for the invitee and to protect the invitee from injury caused by an unreasonable risk
which the invitee, by exercising ordinary care for [her] own safety, [would] not discover.”
4 Ocean Enterprise assumes for purposes of its Motion for Summary Judgment that Ms. Faloni was
an invitee but reserves its right to challenge that status if the Court denies the Motion for Summary
Judgment. ECF No. 30-1 at 8 n.5.
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Casper v. Charles F. Smith & Son, Inc., 316 Md. 573, 582 (1989). As discussed further below,
however, Ocean Enterprise did not breach this duty.
II. 	Ocean Enterprise Did Not Breach Its Duty to Ms. Faloni.
Ocean Enterprise argues that it did not breach the duty it owed Ms. Faloni as an invitee
because the electrical panel did not present a dangerous condition, and that, even if a dangerous
condition existed, the danger was open and obvious. ECF No. 30-1 at 12–15, 16. Ocean
Enterprise further argues that it did not have notice of any dangerous condition and Ms. Faloni
has not presented any evidence otherwise. ECF No. 30-1 at 16, 20. Because there is no genuine
dispute that the electrical panel was not unreasonably dangerous and that, even if it was, the
danger was open and obvious, the Court need not address Ocean Enterprise’s other arguments
and affirmative defenses. The Court addresses the first two elements of premises liability in turn.
A. 	The electrical panel was not an unreasonably dangerous condition.
An unreasonably dangerous condition is one “that will not be discovered by [an] invitee[]
exercising ordinary care for their own safety.” Schaefer v. United States, Civil Action No. PX-
15-2690, 2017 WL 2506174, at *2 (D. Md. June 9, 2017) (citing Leatherwood Motor Coach
Tours Corp. v. Nathan, 84 Md. App. 370, 381 (1990)). Courts have frequently decided, as a
matter of law, that “uneven ground surface generally does not amount to an ‘unreasonable
[danger],’ because pedestrians customarily and ordinarily expect to encounter such variations in
terrain.” Id. at *3 (citing Leatherwood, 84 Md. App. at 383); see also Duncan-Bogley, 356 F.
Supp. 3d at 538–39 (collecting cases). Uneven ground surface can become an unreasonable
danger, however, if the surface is obstructed, the surface is loose, or the surface is covered with a
slick substance such as snow or ice. Dent v. Walmart Inc., Civil Action No. TJS-21-1622, 2023
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WL 6621346, at *4 (D. Md. Oct. 11, 2023). The question, then, is whether the electrical panel
was merely uneven ground or whether it presented additional dangers.
Here, Ocean Enterprise’s security camera video establishes that the electrical panel did
not create an unreasonable danger because it was just an uneven ground surface. See Ozah v.
Fretwell, Civil Action No. CCB-18-1063, 2021 WL 4339435, at *4 (D. Md. Sept. 23, 2021)
(“[T]he video of the event quiets any possible genuine disputes of fact here.”). It confirms that
the electrical panel rose, at most, several inches above the height of the pavement such that the
risk of tripping over the panel was minimal.5 Surveillance Video 19:51:00, 20:23:55. Further,
there were no additional conditions that posed any danger. There is no evidence that the ground
around the electrical panel was loose. The electrical panel was not obstructed by any objects or
poor weather conditions. Finally, the electrical panel was not covered by a slick surface. For
these reasons, the electrical panel did not present an unreasonable danger. Because the electrical
panel was simply an uneven ground surface and Ms. Faloni fails to present any additional facts
demonstrating that the electrical panel presented an unreasonable danger, there is no genuine
dispute that the electrical panel was not an unreasonably dangerous condition that would subject
Ocean Enterprise to liability.
5 Ms. Faloni argues that, because the electrical panel “was substantial enough to catch [her] foot,”
there is a genuine dispute of material fact regarding the exact height of the electrical panel such
that it may have been an unreasonably dangerous condition. ECF No. 34-1 at 10. The Court
disagrees. “[T]he existence of an unreasonable defect ‘cannot be reduced to a mathematical
formula’” that is determined by minor deviations in the height of the uneven surface alone.
Duncan-Bogley, 356 F. Supp. 3d at 539 (quoting President & Com’rs of Town of Princess Anne v.
Kelly, 200 Md. 268, 273 (1952)). Instead, courts must view the circumstances as a whole to
“determine whether there is sufficient evidence of the gravity of the alleged defects to permit a
jury to consider the question of negligence.” Id. (quoting Princess Anne, 200 Md. at 273). In this
case, there are no facts to suggest that the electrical panel was unusually dangerous or that it was
difficult to observe. Absent these facts, disputes about the exact height in inches of the electrical
panel are insufficient to produce a genuine dispute of fact that would preclude summary judgment.
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B. 	The electrical panel, even if it was an unreasonably dangerous condition,
presented an open and obvious danger.
An invitee has “a duty to exercise due care for [their] … own safety” on the property on
which they are invited such that the property owner “has no duty to warn an invitee of an open,
obvious, and present danger.” Six Flags Am., L.P. v. Gonzalez-Perdomo, 248 Md. App. 569, 582
(2020) (citation omitted). “Whether a defect is open and obvious usually must be reserved for the
trier of fact…. However, ‘where it is clear that any [reasonable] person [in plaintiff’s position]
must have understood the danger, the issue may be decided by the court.’” Schaefer, 2017 WL
2506174, at *3 (quoting C & M Builders, LLC v. Strub, 420 Md. 268, 299 (Md. 2011)).
Whether an uneven surface presents an open and obvious danger depends on how easily
the plaintiff can perceive the surface. Courts consistently hold that “small cracks, holes[,] and
uneven spots … in pavement” are open and obvious dangers if “there is nothing to obstruct or
interfere with one’s ability to see such a static defect.” Duncan-Bogley, 356 F. Supp. 3d at 540
(citation omitted) (collecting cases). On the other hand, uneven surfaces in pavement may
present an open and obvious danger if a plaintiff presents evidence “that there was something
unexpected or beyond the miscellany of normal activity so as to excuse [plaintiff’s] failure to
observe the sidewalk defect.” Id. Thus, the issue is whether any reasonable person in Ms.
Faloni’s circumstances could have understood the danger of the electrical panel or whether
unexpected interferences prevented her from understanding the danger.
Any reasonable person could have understood the electrical panel posed an open and
obvious danger because Ms. Faloni had an unobstructed view of it. Ms. Faloni was looking in the
direction of the electrical panel, the electrical panel was not obstructed by any objects or
weather, and the electrical panel was a distinctive, light color compared to the darker pavement
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that surrounded it. Surveillance Video 19:51:00. As a result, any reasonable person could have
determined that the electrical panel presented an open and obvious danger.
Ms. Faloni cites to several cases that have determined that a dangerous condition was not
open and obvious, and she suggests that the Court must follow their examples here. ECF No. 34-
1 at 8–9, 13. As discussed below, however, these cases are distinguishable from the present case.
First, in Honolulu Limited v. Cain, Maryland’s highest Court held that the “thin” ice a
plaintiff slipped on while returning to her car in a parking lot on a February evening was not
open and obvious in part because there was evidence that she walked back to her car by a
different, “less brightly lit” route than the one she took to leave the parking lot. 244 Md. 590,
593, 599–600 (1966). Honolulu does not persuade the Court that the alleged dangerous condition
here was open and obvious because viewing thin, possibly transparent, ice in dim lighting on a
February evening as in Honolulu is objectively much more difficult than viewing an electrical
panel with a distinct color on a sunny August evening as in this case.
Second, in Six Flags America, L.P. v. Gonzalez-Perdomo, the Maryland Appellate Court
held that the water on a particular bridge on which the plaintiff fell at a theme park did not
present an open and obvious danger because there was evidence that other bridges at the theme
park had non-skid material installed and that, as a result, a visitor “could have concluded that the
bridge was unlikely to be slippery” despite being wet. 248 Md. App. at 583. Unlike the
inconsistently installed non-skid material that gave visitors a false sense of security in Six Flags,
here, Ocean Enterprise did not install anything that would have prevented Ms. Faloni from
understanding the danger the electrical panel posed. Thus, Six Flags is disanalogous, and the
Court does not adopt its reasoning.
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Third, in Kritter v. Mooring, the Fourth Circuit, applying North Carolina law, held that
there was a genuine dispute of fact as to whether a quarter inch diameter wire that a helicopter
pilot collided with posed an open and obvious risk in part because experts for the pilot concluded
that he could not have seen the wire quickly enough to avoid it. 142 F.4th 267, 277 (4th Cir.
2025). Kritter is unpersuasive because it does not apply controlling Maryland law, and it does
not involve a dangerous condition that a pedestrian would encounter while walking.
Additionally, although it is not required, Ms. Faloni has not presented any expert testimony,
unlike the pilot in Kritter, to support her assertion that she could not have seen the electrical
panel by exercising reasonable care. Kritter, therefore, does not compel the Court to find that the
electrical panel was an open and obvious danger.
Fourth, in Chamberlain v. Denny’s, Inc., this Court found that a dispute of material fact
existed as to whether uneven brick tiles that the plaintiff tripped over were open and obvious; the
unevenness of the tiles may not have been discernable due to the design of the tiles and their
location immediately behind the door out of which the plaintiff exited. 166 F. Supp. 2d 1064,
1067, 1069 (D. Md. 2001). Unlike the obscure design of the tiles and the presence of a door that
obstructed the plaintiff’s vision in Chamberlain, here, the design of the electrical panel was
distinct due to its color, and there were no obstructions blocking Ms. Faloni’s view of the panel.
Thus, Ms. Faloni’s reliance on Chamberlain does not convince the Court that the electrical panel
was an open and obvious danger.
Any reasonable person could have understood the alleged danger posed by the electrical
panel, and the cases presented by Ms. Faloni suggesting otherwise are distinguishable. Thus,
there is no genuine dispute that the electrical panel’s purported danger was open and obvious.
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There is no genuine dispute that the electrical panel was not an unreasonably dangerous
condition and that, even if it was, the danger it posed was open and obvious. As a result, Ms.
Faloni cannot establish the second element of her negligence claim—that Ocean Enterprise
breached the duty it owed to her as an invitee on its property. Therefore, Ocean Enterprise is
entitled to judgment as a matter of law on Ms. Faloni’s negligence claim.
CONCLUSION
The Court GRANTS Ocean Enterprise’s Motion for Summary Judgment. A separate
order follows.
Date: January 15, 2026 	/s/
Chelsea J. Crawford
United States Magistrate Judge
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