Pursuant to Rule 7-113(D)(1) of the Maryland Rules, Defendant-Appellant, Clean and Spotless, Ltd., by and through its undersigned counsel, hereby requests that its Appeal in the above-captioned matter be heard on the record, and in support of that request, submits this Memorandum in Opposition to the District Court Decision, and states as follows:

          1.           This matter involves a personal injury lawsuit that was initiated by the Plaintiff-Appellee with the filing of a Complaint in the District Court of Maryland for Prince George's County on August 1, 1998.

          2.           In her Complaint, Plaintiff alleged that in January 1996, she suffered bodily injury when a soap dispenser machine at Defendant's Laundromat fell on her. (See Complaint, attached hereto as Exhibit A)

          3.           Plaintiff further alleged that the incident occurred as a result of Defendant's negligence in inspecting and properly maintaining the soap dispenser machine.

          4.           A trial in this matter was conducted before The Honorable Michael Smith on November 16, 1999 in the District Court of Maryland for Prince George's County.

          5.           At trial, Plaintiff introduced as evidence the testimony of the Plaintiff Linda Faller, Plaintiff's friend, Melissa Wilson, and Plaintiff s daughter, Rhonda Patterson, as well as copies of Plaintiff's medical records and bills.

          6.           Defendant introduced the testimony of Ann Byers, the owner of Defendant Clean and spotless, and Edward Reeves, who was the manager of the location at the time of the alleged incident, but no longer in the Defendant's employ at the time of bringing of the suit or trial in the matter.

I.           The Trial Court Erred in Applying the Doctrine of Res Ipsa Loquitur As Plaintiff Failed To Prove
             That The Instrumentality Which Caused Plaintiff's Injury Was In Defendant's Exclusive Control

          As a cause of action under Paragraph 4 of her Complaint, Plaintiff alleged that the soap dispenser machine was under Defendant's exclusive control, and as such, "Plaintiff relies on the doctrine of res ipsa loquitur." (Exhibit A, Par. 4).

          Under Maryland law, a party must prove the following three elements to create an inference of negligence under the doctrine of res ipsa loquitur: (1) a casualty of a kind that does not ordinarily occur absent negligence; (2) that was caused by an instrumentality exclusively in the defendant's control; and (3) that was not caused by an act or omission of the plaintiff. Dover Elevator Company v. Swann, 638 A.2d 762 (Md. 1984). In this case, Plaintiff failed to provide any evidence to prove the second element that the instrumentality that caused Plaintiff’s injury was in Defendant's exclusive control.

          The Maryland Court of Appeals has consistently held that res ipsa will not apply where "the opportunity for third-party interference prevented a finding that the defendant maintained exclusive control of the injury-causing instrumentality." Lee v. Housing Auth. of Baltimore, 101 A.2d 832, 836 (Md. 1954); Holzhauer v. Saks & Co., 697 A.2d 89, 93 (Md. 1997). For example, in Joffre v. Canada Dry Ginger Ale, Inc., 158 A.2d 631, 635 (Md. 1960), the Court held that defendant's control was not exclusive where customers had access to soda bottles for approximately two months before one bottle shattered and injured the plaintiff. In Wilson v. McCrory Stores, Corp., 102 A.2d 253, 256 (Md. 1954), the Court held that the defendant's control was not exclusive where thousands of customers had access to the revolving stools that injured the plaintiff.

          In another case that is factually similar to this one, the Court declined to apply the res ipsa doctrine where the plaintiff was injured by a self-service coin-operated washing machine. See Smith v. Kelly, 229 A.2d 79 (Md. 1967). There, the Court reasoned that the washing machine which caused Plaintiff s injury could not be considered in the exclusive control of Defendant because it was constantly used by members of the public, which presented the "opportunity for intervening forces to have contributed to the machine's malfunction through no fault of appellees." Id. at 82.

          Similarly in this case, Plaintiff would be unable to prove that Defendant had exclusive control over the soap dispenser machine because it is a self-service machine that many different customers have access to and use. Given that, it would be permissible for the finder of fact to infer that any number of factors may have contributed to the machine falling, such as a wrongdoer intentionally pulling the machine out of the wall or loosening the screws. Thus, while it is impossible to tell what events led to the incident, it is clear that defendants were not in exclusive control over the machine to justify the application of res ipsa. Despite that fact, however, Judge Smith based his finding of Defendant's negligence, primarily, if not exclusively, on the res ipsa doctrine:

          Thus, the Court improperly applied the res ipsa doctrine despite the absence of any evidence that Defendant had exclusive control over the self-service soap dispenser machine, and despite a plethora of applicable case law to the contrary. This was clearly reversible error, applying as the Court did a standard and a theory of the case not argued by Plaintiff at trial, and for which there was absolutely no evidence introduced in the record by which the Plaintiff could have established that the instrumentality was under the exclusive control of Defendant.

          Even if this Court finds that the Trial Court did not rely exclusively on the doctrine of res ipsa loquitur, Plaintiff nevertheless failed to meet her burden of proving Defendant's negligence. Specifically, Plaintiff failed to provide any reliable evidence that Defendant breached its duty of care to Plaintiff.

          To support her theory that Defendant had or should have had notice of the dangerous condition, the only evidence that Plaintiff proffered was the internally inconsistent and therefore inherently unreliable testimony of Plaintiff's friend, Melissa Wilson (Exhibit B at 52).

          On direct examination, Ms. Wilson testified that in November 1995, over two months before the incident occurred, she observed a soap dispenser at a laundromat that was in some manner loose and away from the wall. (Exhibit B at 45-48). However, when she was asked on direct examination about the name of the laundromat where she observed that soap dispenser machine, Ms. Wilson could not even identify the laundromat as the same laundromat which was the location of Ms. Faller's incident. Rather, Ms. Wilson testified as follows:

(Exhibit B at 45).

(Exhibit B at 51). On Cross Examination, Ms. Wilson further testified as follows:

(Exhibit B at 52). Thus, it is evident from Ms. Wilson’s testimony that the establishment where she saw a soap dispenser machine loose and coming out of the wall was at a laundromat called "Soap and Bubbles," located in "Tiger Market", not the Laundromat called "Clean and Spotless" located in the "Eastern Market" shopping center.

          In contradiction to this testimony, Ann Byers, the owner of Clean and spotless, later testified that Clean and Spotless has never been known by any other name and was never called "Soap and Bubbles." She further testified that there are other laundromats in same Maryland/Washington, D.C. area called "Soap and Bubbles.'' (Exhibit B at 67).

          Despite the clear testimony of both witnesses that there was a laundromat named "Soap and Bubbles" which is nearby but in no way related to Defendant, and the absolutely clear and unequivocal testimony of Ms. Wilson that the place where she saw the loose dispenser "was not the Clean and Spotless", the Trial Court erred in interpreting Ms. Wilson's testimony as referring to Defendant's establishment to prove there was a pre-existing dangerous condition at Defendant's establishment of which Defendant should have been aware.

          In addition to disregarding Ms. Wilson's misidentification of the premises where the alleged defect existed, the trial court further erred in giving credence to Plaintiff's theory that because Ms. Wilson testified she had observed an apparently defective condition on a soap machine two months before the incident, that such a condition must have existed at the time of the incident. The period of time between the events is too remote, as any number of factors could have arisen between the time Ms. Wilson allegedly saw the machine and the time the incident occurred a few months later. If such a condition had existed two months' prior, it might have been addressed -- in fact, given the uncontradicted testimony of Mr. Reeves that the machine was inspected daily (Exhibit B at 86-87), it seems almost impossible that such a condition would not have been noted and corrected.

          Furthermore, Ms. Wilson' description of the machine as loose and away from the wall contradicts Ms. Faller's own testimony that she noted no physical defects to the machine or its installation prior to the incident:

(Exhibit B at 32).

          Because Ms. Wilson' testimony was inconsistent, unreliable and contradicted the testimony of the Plaintiff, the Trial Court erred in relying on it to rule in favor of the Plaintiff.

          During trial, Edward Reeves was called by Defendant and testified that as Manager of Clean and Spotless in January 1996, he made regular daily inspections of the dispenser machine when he re-filled the machine with soap (Exhibit B at 86). He further testified that during his regular inspections, he never noticed that the machine was loose or coming out from the wall or otherwise in apparent disrepair. (Exhibit B at 87-88).

          Mr. Reeves' testimony is inherently reliable in that he is a disinterested witness who no longer worked for Defendant at the time of the lawsuit filing or time of the trial. (Exhibit B at 83.) He had no continuing relationship with Defendant, no potential liability for the damages of Plaintiff, and nothing to gain directly or indirectly from giving perjured testimony. Moreover, there was no testimony introduced by Plaintiff which in any way impeached Mr. Reeves' statements as to his regular job duties, his daily inspections, and his personal inspection and knowledge of the condition of the soap machine as of the day of the incident.

          Against this consistent, credible, and uncontradicted testimony of a disinterested witness, the trial court inexplicably chose to ignore Mr.Reeves' testimony outright, as is evidenced by the Judge's failure to mention that testimony during his ruling. As the one witness whose personal knowledge of the soap machine's condition was established by unrefuted evidence, and as the one witness who was able to testify from personal knowledge as to the condition of the soap dispenser as of the time of the incident, Mr.Reeves' testimony should not and could not be justifiably ignored by the trial court.. To do so constitutes reversible error.

At the conclusion of the trial during closing arguments, Plaintiff s counsel made the following argument regarding an individual who was not called as a witness because neither Defendant nor Plaintiff were able to fully identify and/or locate her:

(Exhibit B at 106). Thus, Plaintiff s counsel implicitly argued in his summation that due to the absence of that individual, her non-presence and lack of testimony should be inferred against the Defendant, and that Plaintiff should somehow be entitled to a negative inference as to what her testimony might have been. The trial court apparently agreed with that argument:

(Exhibit B at 114).

          In fact, the trial court seriously misstated both the facts and circumstances of this "missing witness" as well as the rule and obligation of Defendant with respect to that witness' identification. The record in this case is clear that Defendant supplied to Plaintiff all the information which Defendant had available as to that person's identity, namely, that her first name was Laura. (Exhibit B at 73-74). Ms. Byers testified that there were no employee records for "Laura" because she had worked only a short time and never completed the tax forms (Exhibit B at 74-76). There was no evidence at trial or otherwise that anyone within Defendant's control during the pendency of the lawsuit knew anything about "Laura" other than that which was timely disclosed to Plaintiff.

          Only during the cross examination of Mr. Reeves, a non-party witness who was testifying pursuant to trial subpoena, did Mr. Reeves respond that he thought he might know Laura's last name and what street she might live on. (Exhibit B at 92-93). As of the trial date, Plaintiff knew as much as Defendant did about "Laura." Had Plaintiff so desired, she could have contacted Mr. Reeves (who was fully and accurately identified during discovery) directly and asked him questions about "Laura" prior to trial. The fact that Mr. Reeves happened to know more than Defendant about "Laura's" identity is neither Defendant's doing nor its responsibility. It was wrong of the Trial Court to hold that against Defendant.

          For the foregoing reasons, the Defendant-Appellant respectfully requests that this Court overrule the decision of the District Court and find in favor of the Defendant as to all counts.