Moore v. CVS Pharmacy

Ashley Moore v. CVS Pharmacy, Inc., et al., No. 371, Sept. Term, 2025. Opinion by
Arthur, J.

PREMISES LIABILITY—DUTY TO PROTECT INVITEES FROM
FORESEEABLE NEGLIGENCE OF OTHER INVITEES

A storekeeper may have an obligation to use reasonable care to protect invitees against
dangers caused by negligent acts of other invitees if a reasonably prudent person should
have anticipated the possible occurrence and the probable results of those acts.
Generally, where there is evidence to support an inference that an invitee’s injury arose at
least in part from an unsafe condition on the storekeeper’s property, and that the class of
harm that occurred was reasonably foreseeable to the storekeeper and could reasonably
have been prevented or guarded against, the issues of proximate cause and foreseeability
are for the trier of fact to determine.

Under the facts of the present case, a customer suffered injuries when another customer
failed to stop a vehicle in a parking space and crashed the vehicle into the entrance of a
retail pharmacy store. The injured customer offered expert testimony from an engineer,
who opined that the parking layout violated standard engineering principles by placing
head-in parking spaces directed at the store entrance, without any bollard or other
vehicle-stopping barrier. Based on the evidence, a factfinder could reasonably conclude
that the store proprietor knew or should have known that the arrangement of the parking
spaces and store entrance presented an unreasonable risk of harm to invitees. The store
proprietor was not entitled to summary judgment merely because no similar incidents had
occurred at the same store or at certain other nearby stores.

SUMMARY JUDGMENT—GENUINE DISPUTES OF MATERIAL FACT

When deciding a motion for summary judgment, the court must consider the record in the
light most favorable to the non-moving party and construe all reasonable inferences
against the moving party. Under that standard, the evidence in the present case generated
a genuine dispute about whether a parent corporation operated, managed, or controlled a
retail store owned by a subsidiary corporation. The parent corporation performed certain
management functions under an agency agreement with the subsidiary corporation. A
supervisory employee of the parent corporation testified that the parent corporation’s
operation and management of the store included decisions about repairs and maintenance.
Although an affidavit from an executive stated that the parent corporation did not directly
operate or control the store, the parent corporation did not produce the agency agreement
itself to provide the factual basis for that conclusion. The parent corporation failed to
show that it was entitled to summary judgment on the ground that it did not operate or
control the store.
Circuit Court for Wicomico County
Case No. C-22-CV-23-000122

REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 371

September Term, 2025
______________________________________

ASHLEY MOORE

v.

CVS PHARMACY INC., ET AL.

______________________________________

Arthur,
Shaw,
Meredith, Timothy E.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Arthur, J.
______________________________________

Filed: May 29, 2026

Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
*Albright, J., did not participate in the Court’s
2026.05.29 decision to designate this opinion for
'00'04- 15:11:28 publication pursuant to Md. Rule 8-605.1.
Gregory Hilton, Clerk
The plaintiff in this case suffered injuries inside a CVS pharmacy store, when a

driver failed to stop a vehicle in a parking space and crashed through the glass entrance

doors. The plaintiff claimed that the alleged owners and operators of the store created an

unsafe condition by keeping parking spaces near the entrance without bollards or other

devices to protect store patrons from vehicles.

One defendant moved for summary judgment, arguing that there was no evidence

that it owned or operated the store premises. Another defendant moved for summary

judgment, arguing that there was no evidence that it received actual or constructive notice

of an unsafe condition on the store premises. The Circuit Court for Wicomico County

granted both motions.

The plaintiff has appealed. For the reasons stated in this opinion, we conclude that

the circuit court erred when it determined that there were no genuine disputes of material

fact and that the defendants were entitled to judgment as a matter of law. Accordingly,

we will reverse the judgment and remand the case for further proceedings.

BACKGROUND

A. Injury to Ms. Moore at the Salisbury CVS Store

On the afternoon of December 10, 2019, Ashley Moore was a customer at a CVS

pharmacy store located at a shopping center on South Salisbury Boulevard in Salisbury,

Maryland. The store is a stand-alone business, not physically connected to other

businesses, and is surrounded by its own parking lot. The store has a single entrance with

glass sliding doors for all customers entering and exiting the store. An aerial photograph

of the store is reproduced below:
The entrance doors are located at the lower-right corner of the building, positioned

at a 45-degree angle relative to a row of parking spaces facing one side of the building

and another row of parking spaces facing the adjacent side of the building. There is no

curb or elevation difference between the parking spaces and the walkways provided for

customers entering and exiting the building.

Four parking spaces located near the entrance along the right side of the building

are accessible parking spaces reserved for persons with physical disabilities. Safety

bollards, several feet in height, stand at the front of each of the accessible parking spaces.

By contrast, the unreserved parking spaces along the other side of the building have no

safety bollards. Each of the unreserved parking spaces has a “wheel stop,” approximately

six inches high. According to expert reports in the record, bollards can impede a vehicle

2
moving faster than 20 miles per hour. Wheel stops, however, are not designed to impede

a moving vehicle but merely to alert the driver if a vehicle reaches the edge of the

parking space.

A photograph of the store, showing the blue safety bollards in front of the

accessible spaces and the absence of bollards in front of the other spaces, is reproduced

below:

As Ms. Moore was leaving the Salisbury CVS store, another customer, Maria

Belfort, drove a sport-utility vehicle into one of the unreserved parking spaces near the

entrance. Ms. Belfort failed to apply the brake pedal to stop the vehicle. The vehicle ran

over the wheel stop, crossed the pedestrian walkway, and crashed through the glass

entrance doors. The vehicle struck Ms. Moore as she was walking through the entrance

doors. She lost consciousness and suffered multiple fractures that required surgery. A

photograph of Ms. Belfort’s car, after she had driven it through the doorway of the store,

3
is reproduced below:

B. Negligence Claims

On September 26, 2022, Ms. Moore filed a complaint in the Circuit Court for

Baltimore City. The first count of the complaint raised a negligence claim against Ms.

Belfort, alleging that the crash resulted from her careless operation of her vehicle.

Other counts of the complaint raised claims for negligence and premises liability

against three companies: a Rhode Island corporation named CVS Pharmacy, Inc.; a

Rhode Island limited liability company named CVS 8281 MD, LLC; and a Maryland

limited liability company named Clairmont Center, LLC. The complaint alleged that

those companies “owned, operated, maintained, and managed” the Salisbury CVS store

and “retained exclusive ownership, possession, control, and/or supervision” of the store.

The complaint also alleged that those companies failed to exercise reasonable care to

protect invitees from injury.

According to the complaint, when Ms. Belfort attempted to stop her vehicle at a

4
parking space near the entrance doors, she “pressed the accelerator instead of the

brake[.]” The vehicle allegedly “encountered no resistance as it accelerated” toward the

entrance “because there were no bollards or other devices” to protect the entrance and the

customers using it. The complaint alleged that, if the defendants had installed bollards or

similar protective devices in front of the entrance, the crash would not have occurred and

Ms. Moore would not have suffered her injuries.

The complaint alleged that, during the decade before the incident, many other

“incidents of vehicles driving though the front doors” occurred at CVS stores throughout

the United States, including in Maryland. The complaint also alleged that the owners and

operators of the store understood that “vehicles crashing through storefront entrances”

were “a known hazard[]” in the retail industry. The complaint alleged that the store

owners and operators knew that the parking spaces near the entrance lacked devices to

protect against vehicles crashing into the entrance but failed to protect customers from

that danger.

The complaint further alleged that, as a result of the crash, Ms. Moore suffered

“serious, painful, and permanent physical and emotional injuries[,]” as well as “a

substantial disruption to her quality of life.” The complaint alleged that Ms. Moore

required extensive medical treatment, suffered a loss of income, and will continue to

require medical care in the future.

Although the complaint named CVS Pharmacy and CVS 2821 MD as defendants,

those defendants did not file responsive pleadings. Rather, a party identifying itself as

“Defendant Maryland CVS Pharmacy, LLC, . . . improperly pled as CVS Pharmacy, Inc.,

5
and CVS 8281 MD, LLC,” filed an answer in which it denied liability. We shall refer to

that defendant as “Maryland CVS.”

Maryland CVS identified itself as a Maryland limited liability company and stated

that it owns and operates the Salisbury CVS store. In addition to an answer, Maryland

CVS filed cross-claims and third-party claims seeking indemnity and contribution from

the driver, Ms. Belfort.

Clairmont Center and Maryland CVS moved to transfer the action to Wicomico

County, where the accident occurred. The court granted the motions and transferred the

action to the Circuit Court for Wicomico County.

During discovery, Ms. Moore designated John D. Boyd, a civil and environmental

engineer, as an expert on parking lot design and related matters. Mr. Boyd opined that

the layout of the parking lot and entrance at the Salisbury CVS store presented a

hazardous condition. According to Mr. Boyd, it is inconsistent with standard design

principles to place head-in parking spaces directed at a retail storefront used by

pedestrians. Mr. Boyd opined that, to keep pedestrians reasonably safe, the operators of

the store either needed to remove three of the unreserved parking spaces located near the

entrance or to protect the entrance with barriers such as bollards or landscaping features.

Ms. Moore also designated Robert Reiter, a safety consultant, as an expert to

testify about standards for the use of protective devices at retail businesses with parking

lots. Mr. Reiter maintains a database that compiles public information about vehicle

crashes at retail stores. Mr. Reiter opined that the history of vehicle crashes at CVS

stores and other retail stores across the country should have alerted CVS entities of the

6
risk of vehicles crashing into storefronts. Mr. Reiter also opined that it was not

reasonably safe to place parking spaces facing the entrance to the Salisbury CVS store

without bollards or other barriers to protect pedestrians.

C. Discovery Disputes

When she served the complaint, Ms. Moore also served interrogatories and

discovery requests on the three companies named as defendants. Among other things, the

interrogatories asked each defendant to identify the entities that owned or leased the store

premises, as well as any documents governing the ownership, leasing, control, or

management of the store. The interrogatories also asked each defendant to disclose every

incident in which a vehicle drove into a CVS store within five years of the accident and

to disclose whether the defendant had ever been advised to install devices outside of any

CVS store to protect patrons from vehicles.

Defendants CVS Pharmacy and CVS 8281 MD did not respond to any discovery

requests. Maryland CVS sent responses on its own behalf.

Maryland CVS disclosed that it had leased the store premises since May 2011

from Clairmont Center, the owner of the property. Maryland CVS asserted that there had

been no prior incidents in which a vehicle drove into the Salisbury CVS store within five

years of the accident and that it never received advisements to install protective devices at

that store. Maryland CVS objected to many of the interrogatories, asserting that

information about any stores other than the Salisbury CVS store was neither relevant nor

reasonably likely to lead to the discovery of admissible evidence.

Ms. Moore moved to compel Maryland CVS to provide more complete responses

7
to her interrogatories, including the interrogatories about prior vehicle crashes and

advisements to install safety devices. During a hearing on September 14, 2023, counsel

for Maryland CVS asserted that it lacked access to some of the information sought

because various “independent entities” own CVS stores throughout the country. Counsel

told the court that “this particular CVS” store was part of a geographical “district” with

“at least 12 stores[.]”

At the conclusion of the hearing, the court partially granted Ms. Moore’s motion

to compel. The court ordered Maryland CVS to disclose any incidents involving “a

vehicle driving into a CVS store location for a period of five years before the occurrence”

in the same “district” as the Salisbury CVS store. The court limited the scope of those

compelled disclosures to incidents at a “similarly situated” store, which the court defined

as a “stand-alone store with parking around it, not fronting a roadway.” The court also

ordered Maryland CVS to disclose whether “any store in the district similarly situated in

terms of being a stand-alone store with parking around it” had ever been advised by

government authorities to install protective devices outside the store.

After the court granted the motion to compel, Maryland CVS disclosed several

incidents between 2014 and 2019 of vehicles crashing into CVS stores in the same

district as the Salisbury CVS store. Although those disclosures are not part of the record,

Maryland CVS asserts that there were “no prior incidents of a vehicle driving into the

entrance doors” at any of those stores during that period.

One week after the discovery ruling, counsel for Ms. Moore emailed counsel for

Maryland CVS to inquire why CVS Pharmacy had failed to provide any discovery

8
responses. Counsel for Maryland CVS asserted that “CVS Pharmacy, Inc. w[ould] not be

responding to [Ms. Moore’s] discovery requests” because “CVS Pharmacy, Inc. [was] not

a proper defendant in this matter[.]”

Shortly after that email exchange, Ms. Moore moved to compel CVS Pharmacy to

respond to interrogatories and requests for production of documents that she had served

more than 11 months earlier. In its first filing in the action, CVS Pharmacy opposed the

motion to compel. The attorneys who represented Maryland CVS also represented CVS

Pharmacy.

CVS Pharmacy asserted that it was not “a properly named defendant” in the action

and stated that it intended to move for summary judgment on that ground. The court

marked the motion to compel discovery from CVS Pharmacy as “set for hearing,” but

never held any hearing or ruled on that motion.

In October 2023, Ms. Moore served notices to take the deposition of a corporate

designee for CVS Pharmacy. The proposed topics included the ownership and

management of CVS stores, contracts between CVS Pharmacy and other defendants,

policies for accidents and injuries, policies for construction and maintenance of CVS

stores, and prior incidents of vehicles driving into the entrance doors of CVS stores.

Opposing counsel refused to produce a corporate designee for CVS Pharmacy. Instead,

counsel identified “District Leader Dennis Pawlewicz” as the corporate designee for

Maryland CVS and objected to the scope of many proposed topics.

During the deposition, Mr. Pawlewicz identified his employer as “CVS Health,”

which he understood to be synonymous with “CVS Pharmacy, Incorporated[.]” Mr.

9
Pawlewicz testified, to the best of his knowledge, that his employer “owns, operates and

manages all of its retail pharmacy store locations,” including the Salisbury CVS store.

Although he lacked direct knowledge of what entity owned the Salisbury CVS store, Mr.

Pawlewicz testified that he understood that the store is “a CVS corporate store that is

owned by” his employer. Mr. Pawlewicz stated that he had never heard of “Maryland

CVS Pharmacy, LLC[,]” until the deposition.

Mr. Pawlewicz testified that, in his role as district leader, he oversees 18 CVS

stores in Delaware and four in Maryland. He had no knowledge of other incidents in

which a vehicle crashed into the entrance of the Salisbury CVS store or another CVS

store within that district. He stated that his employer’s policies require store managers to

report any incidents involving damage to store buildings or injuries to customers. Mr.

Pawlewicz said that store managers use a centralized “service channel database” to make

any requests for repairs or maintenance at a CVS store. This service channel database, he

said, “covers a broad variety of things[,]” including “[l]ighting, plumbing, electricity, . . .

carpeting[,]” and “[j]ust anything inside and outside th[e] four walls that are not

functioning properly.”

D. Motions for Summary Judgment

On October 12, 2023, the defendants filed three separate motions for summary

judgment: one on behalf of Clairmont Center; one on behalf of both CVS Pharmacy and

CVS 2821 MD; and one on behalf of Maryland CVS.

In its motion, Clairmont Center acknowledged that it owned the shopping center

on South Salisbury Boulevard but asserted that it did not operate, maintain, or control the

10
CVS store or parking area. In support of its assertions, Clairmont Center produced a

copy of a ground lease agreement dated May 17, 2011. Under that agreement, Clairmont

Center leased the property to Maryland CVS for the purpose of building and operating a

CVS store on the property. As a term of their agreement, Maryland CVS promised to

“keep and maintain . . . all buildings, curbs, landscaping, parking and driveway areas, and

other improvements” on the premises.

In its motion, CVS Pharmacy contended that the evidence conclusively established

that it “did not own, operate, control, or maintain” the Salisbury CVS store and,

therefore, did not owe any duty to Ms. Moore. CVS Pharmacy asserted that it was

merely the “parent corporation” of Maryland CVS and that Maryland CVS “owns,

operates, manages, and controls” the Salisbury CVS store. As the only document in

support of its motion, CVS Pharmacy relied on the ground lease agreement between

Clairmont Center and Maryland CVS.

In its own motion, Maryland CVS admitted that it leases the store premises from

Clairmont Center and that it operates and maintains the Salisbury CVS store.

Maryland CVS asserted that the information produced during discovery showed that

there were no incidents of a vehicle crashing into the entrance of the Salisbury CVS store

or another CVS store in the same district within five years of the accident. Maryland

CVS further asserted that there was no evidence that any store in the same district

received advisements to install safety devices to protect against vehicles entering a store.

In light of that information, Maryland CVS contended that it did not have actual or

constructive knowledge or notice of a dangerous condition created by the parking spaces

11
near the store entrance.

After the filing of the summary judgment motions, Ms. Moore filed an “Amended

Complaint by Interlineation.” According to Ms. Moore, the purpose of the amendment

was to correct a “misnomer” used to identify one defendant. The amended complaint

replaced the name “CVS 2821 MD, LLC,” with the name “Maryland CVS Pharmacy,

LLC.” Otherwise, the allegations remained unchanged from the original complaint.

Soon after filing the amended complaint, Ms. Moore filed a stipulation voluntarily

dismissing her claims against Clairmont Center.

Ms. Moore opposed the summary judgment motions made by CVS Pharmacy and

Maryland CVS. Ms. Moore argued that the deposition testimony from Mr. Pawlewicz,

an employee of CVS Pharmacy, was sufficient evidence to establish that CVS Pharmacy

owned, operated, managed, or controlled the Salisbury CVS store. Citing reports from

her expert witnesses, Ms. Moore asserted that there was a long history of vehicle crashes

at other CVS stores throughout the country and that the incident was reasonably

foreseeable.

In a reply in support of its motion, CVS Pharmacy argued that the claims against it

were an improper attempt “to pierce the corporate veil” and to hold it liable for the

alleged negligence of Maryland CVS. CVS Pharmacy also asserted that “Mr. Pawlewicz

was deposed, over objections, on topics on which he does not have the requisite

knowledge or understanding[.]”1 CVS Pharmacy asserted that, contrary to the testimony

1
Of course, Mr. Pawlewicz was Maryland CVS’s designee under Maryland Rule
2-412(d). Consequently, Maryland CVS had an obligation to prepare him to give

12
of Mr. Pawlewicz, it does not own or operate the Salisbury CVS store.

Along with its reply, CVS Pharmacy provided an affidavit from Thomas Moffatt,

a vice president for CVS Pharmacy, who also serves as president of Maryland CVS. Mr.

Moffatt asserted that Maryland CVS directly owns and operates CVS stores in Maryland

and that CVS Pharmacy does not directly own or operate any stores in Maryland. Mr.

Moffatt further stated that Maryland CVS “entered into an agency agreement” with CVS

Pharmacy, under which CVS Pharmacy “provide[s] certain services” to Maryland CVS

and “act[s] on its behalf in things like field management, human resources, payroll

processing, tax compliance and processing, and other similar administrative and

management functions.”

E. Grant of Summary Judgment and Entry of Final Judgment

After considering arguments at a hearing on November 29, 2023, the circuit court

granted summary judgment in favor of CVS Pharmacy and Maryland CVS.

Addressing the motion made by CVS Pharmacy, the court stated: “I don’t think

there have been sufficient facts pled or alleged that would entitle the Plaintiff in this case

to have a cause of action against CVS Pharmacy, Inc.” Stating that “there was sufficient

evidence in the record as it relates to [Maryland CVS] being on the lease, having

sufficient control, and exercising that control over the property,” the court concluded that

CVS Pharmacy was entitled to judgment as a matter of law on the claims against it.

Addressing the motion made by Maryland CVS, the court concluded that there

complete and responsive testimony on all topics listed in the notice of deposition, unless
it obtained a protective order.

13
was no evidence to establish that Maryland CVS had notice of an unsafe condition at the

Salisbury CVS store. The court reasoned: “At this store, there were no prior accidents to

put the store owner on notice or for it to be reasonably foreseeable that they needed to

take further action to prevent or guard against the negligence of this third party.” The

court stated that it was “not convinced” that there was evidence showing that Maryland

CVS was “on notice” that it needed to take further action or that the need to take further

action was reasonably foreseeable to Maryland CVS.

After the court memorialized its summary judgment ruling, Ms. Moore moved for

reconsideration. Ms. Moore noted that, because CVS Pharmacy refused to respond to

any discovery requests, she “never had the opportunity to conduct any discovery on the

nature and extent of [CVS Pharmacy’s] operational and managerial control over the

subject store.” Ms. Moore asserted that, even without full discovery, the testimony from

Mr. Pawlewicz and the affidavit from Mr. Moffatt created a genuine factual dispute over

whether CVS Pharmacy operates or manages the Salisbury CVS store as an agent for

Maryland CVS. Citing the expert report from Mr. Reiter, Ms. Moore asserted that there

had been many prior incidents of vehicles crashing into storefronts at CVS stores

throughout the United States. Ms. Moore argued that “[CVS Pharmacy] as agent, and

therefore [Maryland CVS] as principal,” had knowledge or notice of the risk of vehicles

crashing into one of its stores.

On February 6, 2024, the circuit court denied the motion to reconsider the

summary judgment ruling. Ms. Moore filed a notice of appeal one day after the entry of

that order. Afterwards, Ms. Moore filed a stipulation in which she voluntarily agreed to

14
dismiss without prejudice her claims against Ms. Belfort, the driver who had crashed the

vehicle into the Salisbury CVS store.

In an unreported opinion, this Court concluded that Ms. Moore’s notice of appeal

was premature because the circuit court had not entered a final judgment disposing of all

claims against all parties. Ashley Moore v. CVS Pharmacy, Inc., et al., No. 2339, Sept.

Term 2023 (filed Feb. 6, 2025). We reasoned that, at the time when Ms. Moore noted her

appeal, her claims against Ms. Belfort were still pending, as were Maryland CVS’s cross-

claims. We remanded the case under Md. Rule 8-602(g)(1)(B), for the circuit court to

decide whether to direct the entry of a final judgment as to one or more but fewer than all

parties.

After the remand, the parties jointly moved for an order directing the entry of final

judgment as to fewer than all parties under Md. Rule 2-602(b). On April 17, 2025, the

circuit court entered an order expressly finding that there was no just reason for delay and

directing the entry of final judgment as to defendants Maryland CVS and CVS Pharmacy.

Ms. Moore noted this timely appeal.2

DISCUSSION

In this appeal, Ms. Moore seeks reversal of the order granting summary judgment

in favor of CVS Pharmacy and Maryland CVS. This Court reviews the grant of a motion

for summary judgment without deference to the circuit court. See, e.g., Jabbi v. Adventist

2
In the circumstances of this case, the court did not abuse its discretion in
directing the entry of final judgment against Maryland CVS and CVS Pharmacy. See
Barclay v. Briscoe, 427 Md. 270, 278 n.6 (2012); Zilichickhis v. Montgomery County,
223 Md. App. 158, 174 (2015).

15
Healthcare, Inc., 264 Md. App. 659, 667 (2025) (citing Oglesby v. Baltimore School

Assocs., 484 Md. 296, 327 (2023)). As a general rule, “‘absent exceptional

circumstances, Maryland appellate courts will only consider the grounds upon which the

[trial] court granted summary judgment[.]” Irwin Indus. Tool Co. v. Pifer, 478 Md. 645,

682 (2022) (quoting State v. Rovin, 472 Md. 317, 373 (2021)). Appellate review requires

“‘the same analysis that a trial court should make’” when deciding a motion for summary

judgment. Jabbi v. Adventist Healthcare, Inc., 264 Md. App. at 668 (quoting District of

Columbia v. Singleton, 425 Md. 398, 406-07 (2012)).

A moving party is entitled to summary judgment “if the motion and response show

that there is no genuine dispute as to any material fact” and that the moving party “is

entitled to judgment as a matter of law.” Md. Rule 2-501(f). In making this

determination, the court must consider the record in the light most favorable to the

nonmoving party and construe any reasonable inferences that may be drawn from the

facts against the moving party. Oglesby v. Baltimore Sch. Assocs., 484 Md. at 327. “‘[I]f

those facts are susceptible to inferences supporting the position of the party opposing

summary judgment, then a grant of summary judgment is improper.’” RDC Melanie

Drive, LLC v. Eppard, 474 Md. 547, 564 (2021) (quoting Ashton v. Brown, 399 Md. 70,

79 (1995)).

In her appellate brief, Ms. Moore contends that the record established genuine

disputes of material fact concerning whether the defendants had actual or constructive

notice of a dangerous condition at the Salisbury CVS store and whether CVS Pharmacy

operated or controlled the store. Ms. Moore presents the following two questions:

16
1. Did the circuit court err by granting summary judgment to [CVS
Pharmacy] finding that Ms. Moore was not “entitle[d] . . . to have a cause
of action against CVS Pharmacy, Inc.”?

2. Did the circuit court err by granting [Maryland CVS]’s motion for
summary judgment and finding that the Incident was not foreseeable to
[Maryland CVS]?

In their appellate brief, Maryland CVS and CVS Pharmacy argue that the

summary judgment rulings should be affirmed. They contend the circuit court did not err

when it granted summary judgment on the ground that Maryland CVS lacked notice of an

unsafe condition at the Salisbury CVS store. They also contend that CVS Pharmacy is

entitled to summary judgment on the ground that it does not own or operate the Salisbury

CVS store, as well as on the ground of absence of notice.

Because the issue of whether the defendants had actual or constructive knowledge

or notice of a dangerous condition potentially affects the claims against both defendants,

this opinion will address that issue before it considers whether CVS Pharmacy might be

held liable for injuries to invitees at the Salisbury CVS store.

I. Knowledge or Notice of Dangerous Condition

In the present action, Ms. Moore raised negligence and premises liability claims

against Maryland CVS and CVS Pharmacy. “In a negligence action, a plaintiff bears the

burden of proving: ‘1) that the defendant was under a duty to protect the plaintiff from

injury, 2) that the defendant breached that duty, 3) that the plaintiff suffered actual injury

or loss, and 4) that the loss or injury proximately resulted from the defendant’s breach of

that duty.’” Steamfitters Local Union No. 602 v. Erie Ins. Exch., 469 Md. 704, 727

(2020) (quoting Rowhouses, Inc. v. Smith, 446 Md. 611, 631 (2016)). Because premises

17
liability is based on principles of negligence, a claim for premises liability requires proof

of the same four elements required for any negligence claim. See Macias v. Summit

Mgmt., Inc., 243 Md. App. 294, 316 (2019).

The duty owed by the possessor or owner of property to a person injured on the

property depends on the status of the injured person at the time of the incident. See

Macias v. Summit Mgmt., Inc., 243 Md. App. at 316. “‘The highest duty is that owed to

an invitee; it is the duty to use 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 [the invitee’s] own safety will not

discover.’” Davis v. Regency Lane, LLC, 249 Md. App. 187, 207 (2021) (quoting

Richardson v. Nwadiuko, 184 Md. App. 481, 489 (2009)) (further citation and quotation

marks omitted).

Customers invited to a retail store are entitled to assume that store proprietors will

exercise reasonable care to inspect the premises for any unsafe conditions and to protect

or warn customers against unsafe conditions. See Maans v. Giant of Maryland, L.L.C.,

161 Md. App. 620, 627 (2005). Although “[s]torekeepers are not insurers of their

customers’ safety,” they may be liable if a customer’s injury results from a failure to

exercise ordinary care. Giant Food, Inc. v. Mitchell, 334 Md. 633, 636 (1994). A

storekeeper has an obligation to use reasonable care to protect its invitees “‘not only

against dangers which may arise from some defect or unsafe condition of the physical

property . . . but against dangers which may be caused by negligent acts of [the

storekeeper’s] employees, or even of customers,’” as long as a reasonably prudent person

18
“‘should have anticipated the possible occurrence and the probable results of such acts.’”

Id. at 636-37 (quoting Eyerly v. Baker, 168 Md. 599, 607 (1935)).

Here, there is no dispute that Ms. Moore was a business invitee when she suffered

injuries inside the Salisbury CVS store. Nor is there any dispute that Maryland CVS

leased the store premises from Clairmont Center. When a commercial tenant leases store

premises from a landowner, the tenant assumes the “position of owner and occupier of

the leased premises” and, therefore, owes a duty of care to persons invited onto the

premises. See Ford v. Edmondson Vill. Shopping Ctr. Holdings, LLC, 251 Md. App. 335,

349-50 (2021). The customers that a commercial tenant invites to a store “ordinarily

occupy the status of business invitees” of that tenant. Id. at 350. Accordingly, Maryland

CVS owed Ms. Moore a duty “‘to exercise ordinary care to keep the premises in a

reasonably safe condition’” and would be “‘liable for injuries sustained in consequence of

a failure to do so.’” Maans v. Giant of Maryland, L.L.C., 161 Md. App. at 627 (quoting

Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 117 (1955)).

In general, to prove a negligence claim against a store proprietor, the invitee must

show that the proprietor either “‘created the dangerous condition or had actual or

constructive knowledge of its existence’ prior to the invitee’s injury.” Maans v. Giant of

Maryland, L.L.C., 161 Md. App. at 628 (quoting Lexington Market Auth. v. Zappala, 233

Md. 444, 446 (1964)). “‘It is not necessary that there be proof that the [proprietor] had

actual knowledge of the conditions creating the peril; it is enough if it appears that [the

proprietor] could have discovered them by the exercise of ordinary care[.]’” Deering

Woods Condo. Ass’n v. Spoon, 377 Md. 250, 264 (2003) (quoting Moore v. American

19
Stores Co., 169 Md. 541, 551 (1936)). The invitee may prove the requisite knowledge

through evidence that the proprietor had “actual or constructive notice” of a dangerous

condition on the premises. See Macias v. Summit Mgmt., Inc., 243 Md. App. at 336.

“[N]otice is usually not an issue” in cases where the store proprietor or its

employees “are alleged to have created the dangerous condition.” Keene v. Arlan’s Dep’t

Store of Baltimore, Inc., 35 Md. App. 250, 256 (1977). The issue of notice “generally

arises when the dangerous condition is created by a third party.” Tennant v. Shoppers

Food Warehouse Md. Corp., 115 Md. App. 381, 394 (1997). “Usually, in [those] cases,

the plaintiff claims that the defendant has breached its duty to inspect for dangers created

by third parties,” such as other store patrons. Id.

The store proprietor may be liable for injuries caused by a dangerous condition

created by another store patron if it gained actual or constructive knowledge of the

condition with “‘sufficient time . . . to discover, cure, or clean up’” that condition.

Joseph v. Bozzuto Mgmt. Co., 173 Md. App. 305, 347 (2007) (quoting Rehn v. Westfield

America, 153 Md. App. 586, 593 (2003)). On the other hand, a restaurant proprietor is

not liable for injuries suffered when a customer slips on a beverage spilled by another

customer, unless there is evidence that the proprietor had actual or constructive notice of

the spill and also had sufficient opportunity to clean it up. See Rehn v. Westfield

America, 153 Md. App. at 598.

The present case does not neatly fit into the category of cases in which the issue of

notice to a store proprietor usually arises. Ms. Moore alleges that her injuries resulted

from the combination of Ms. Belfort’s negligent driving and from the failure, on the part

20
of the owners and operators of the store, to protect invitees from this allegedly

foreseeable type of driver error. Ms. Moore claims that the store owners and operators

created an unsafe condition by keeping parking spaces directed at the entrance without

bollards or other measures to protect against vehicles. Without question, Maryland CVS

had sufficient knowledge and notice of the layout of its parking spaces and store

entrance, as well as the absence of protective barriers. The relevant focus, therefore, is

whether the evidence supports a conclusion that Maryland CVS knew or should have

known that the existing layout presented a hazardous condition.

As a preliminary matter, Maryland CVS contests whether Ms. Moore may proceed

on a theory that the parking lot was defectively designed. Maryland CVS claims that

counsel for Ms. Moore “abandoned” any claim that the “original” design of the parking

lot was defective during the hearing on the summary judgment motions. Maryland CVS

argues that, in this appeal, Ms. Moore should be bound by this purported “abandonment

of her original design defect argument[.]”

The transcript does not support the assertion that Ms. Moore “abandoned” a claim

that the parking lot was defectively designed. During the hearing, counsel for Ms. Moore

stated that her expert witnesses concluded that the three unreserved parking spaces

nearest to the entrance did not “need to be there to begin with.” Counsel continued: “But

we’re not taking issue with the original design. What we’re saying is that over time,

those spaces could have been removed and, . . . from an [ADA] and a zoning standpoint,

would have been perfectly fine.” Counsel stated that, “[o]ver time,” the CVS defendants

should have known that “this particular door required more to protect pedestrians and

21
patrons, based on the plethora of incidents around the country[]” of vehicles crashing into

storefronts.

Counsel’s comments do not amount to a concession or admission about the design

of the parking lot. These comments specified that the focus of the negligence claim was

not the “original” design of the parking lot in 2011 but the failure to “remove[]” three

spaces near the entrance or to install something else “to protect pedestrians and patrons,”

at some point before the time of the accident in 2019. Counsel did not abandon a theory

of defective design by specifying that the proper time for assessing the foreseeability of

the accident was 2019 rather than 2011. Moreover, the circuit court did not find that

counsel had “abandoned” the theory that the parking lot design was defective. When

explaining its summary judgment ruling, the court accurately described the theory of

negligence as follows: “the allegation would be that Maryland CVS has a defective

condition in the parking lot by not having appropriate parking, either parking layout, [or]

parking structure, . . . by [which] I mean bollard, landscaping, other things that would

have prevented this accident from occurring[.]”

The leading authority in Maryland on the scope of a store proprietor’s duty to

protect customers from injuries caused by third-party motorists is Dalmo Sales of

Wheaton, Inc. v. Steinberg, 43 Md. App. 659 (1979). The plaintiff in that case, Mrs.

Steinberg, suffered grievous injuries when a vehicle struck her while she was walking

along a sidewalk in front of an appliance store. Id. at 661. The driver had been

attempting to jump-start the vehicle in a parking space and carelessly caused it to

accelerate forward onto the adjacent sidewalk. Id. at 663-64. The vehicle struck Mrs.

22
Steinberg, pinned her to the base of the storefront, pushed her through a window, and

caused part of the broken window to drop onto her legs. Id. at 664.

Mrs. Steinberg brought negligence claims against the company that owned the

store property (referred to as “Northwestern”) and companies that leased and possessed

the property (referred to collectively as “Luskins”). Dalmo Sales of Wheaton, Inc. v.

Steinberg, 43 Md. App. at 661. Mrs. Steinberg alleged that Northwestern and Luskins

“maintained the sidewalk and parking lot in a dangerous and defective condition by

failing to maintain a curb or other barrier that would prevent the encroachment of the

sidewalk by vehicles from the parking lot or otherwise retard or halt vehicular traffic

across the sidewalk,” and that “they knew or should have known that such deficiencies

might create an unreasonable risk to people using the sidewalk[.]” Id. After trial, the

jury found all defendants liable for the injuries to Mrs. Steinberg. Id. The trial court

denied Luskins’ motion for judgment notwithstanding the verdict but granted

Northwestern’s motion for judgment notwithstanding the verdict. Id. Luskins appealed,

and Mrs. Steinberg cross-appealed. Id. at 662.

When recounting the pertinent facts, the Court stated: “A critical fact in this case,

in terms of whether Luskins or Northwestern have any liability to Mrs. Steinberg, is that

there was no barrier, in the form of a curb, wheel blocks, or bollards, to inhibit

automobiles parked or being driven on the parking lot from encroaching on the

sidewalk.” Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md. App. at 663. The Court

explained that “the parking lot sloped up to meet the sidewalk at grade, leaving somewhat

of a rut or gully just before the two joined.” Id. At trial, an expert traffic engineer had

23
testified that, “for at least 25 to 30 years”—i.e. since the late 1940s or early 1950s—“it

ha[d] been a ‘common and standard practice’ to separate parking spaces from pedestrian

walkways by the use of curbs, wheel blocks, or bollards.” Id. at 667. The expert opined

that “the property (by reason of the absence of such a barrier) ‘was not consistent’ with

this quarter-century old practice.” Id. Other evidence indicated that a standard six-inch

curb or standard eight-inch wheel block either would have impeded the vehicle or at least

would have slowed the vehicle enough for Mrs. Steinberg to avoid it. Id. at 667-68 &

n.2.

The Court observed: “There was no evidence that, in the 21-year history of the

building, anyone on the front sidewalk had ever been injured by reason of an encroaching

automobile[.]” Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md. App. at 666. The

Court noted, however, that there was evidence that “encroachment by automobiles had

been a problem in the past” in the store parking lot and that “Luskins, through its

supervisory employees, had been made aware of the problem.” Id. Specifically, the

keeper of an adjacent store, which faced the same parking lot, notified a Luskins

employee of an incident in which a vehicle crashed into a window at the adjacent store.

Id. The same storekeeper also informed a Luskins employee of an incident in which his

vehicle crashed into equipment on the sidewalk in front of Luskins. Id. After one

incident, a Luskins employee suggested placing poles or bollards in front of the store, but

Luskins declined to install any such devices. Id. at 667.

On appeal, Luskins acknowledged that it owed a duty of care to Mrs. Steinberg, as

a business invitee, but argued that this duty did not extend “to the type of risk or

24
exposure” that caused her injuries. Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md.

App. at 665. The Court framed the central issue as follows: “Given the existing layout of

the property, was the possibility that a car might come over the sidewalk and strike a

pedestrian who was lawfully thereon a reasonably foreseeable one . . . that Luskins had a

duty to anticipate and guard against?” Id.

The Court explained that “cases involving a storekeeper’s liability for injuries to

[its] invitee appear to fall into at least three categories[.]” Dalmo Sales of Wheaton, Inc.

v. Steinberg, 43 Md. App. at 670. In the first category, “the injury arises from the

negligent or deliberate act of a third party committed on the storekeeper’s property but

does not involve any defect in the property itself.” Id. The second category involves

defects such as hazardous walking surfaces, which are capable “of causing injury directly

to [whoever] comes into contact with them, without the need for a concurrent act or

omission by anyone else.” Id. In the third category, the injury “results not solely from

the condition itself, or from the injured person’s contact with it, but rather from the

combination of the condition and the independent action of another person or object.” Id.

at 670-71.

The Court reasoned that Mrs. Steinberg’s case “f[ell] squarely within this third

category” of cases. Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md. App. at 671.

Specifically, Mrs. Steinberg claimed that her injuries “resulted from the coincidence of

[the driver’s] negligent operation of [a] vehicle and the lack of a barrier sufficient to avert

or delay the encroachment of the sidewalk.” Id. (emphasis in original). To analyze

foreseeability in this type of case, the Court wrote, a court must “consider the

25
reasonableness of anticipating the occurrence of harm from the combination and

interaction” of “two independent causative factors[,]” “rather than from either alone.” Id.

The Court observed that, where an injury is alleged to result from negligent acts of more

than one person, the liability of the first person depends on “‘whether the negligent act of

the other was one which [a person] of ordinary experience and sagacity, acquainted with

all the circumstances, could reasonably anticipate or not.’” Id. (quoting State v. Hecht

Co., 165 Md. 415, 422 (1933)).

Luskins contended that the “runaway car” that injured Mrs. Steinberg was not

foreseeable because it resulted from a “‘freakish’” series of events. Dalmo Sales of

Wheaton, Inc. v. Steinberg, 43 Md. App. at 672. The Court agreed that it would “require

a wide, loose, and vivid imagination to predict or foresee the strange combination of

circumstances that actually led” to Mrs. Steinberg’s injuries. Id. The Court explained,

however, that “it is not the ‘freakish’ chain of circumstances that actually occurred . . .

that must be reasonably foreseeable, but rather the more general class of harm that might

occur to invitees walking upon the sidewalk from the movement of encroaching

vehicles.” Id. at 673. The Court stated that this type of “harm could result from a variety

of forms of negligent driving from failing to stop in time while attempting to park, to

placing the car in the wrong gear while attempting to leave, and much in between.” Id. at

673-74.

Surveying out-of-state cases concerning a storekeeper’s liability for injuries

caused by vehicles, the Court compared Mrs. Steinberg’s case to those in which courts

“concluded that the issues of negligence, foreseeability, and proximate cause” were

26
“properly for a jury to determine.” Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md.

App. at 674. The Court observed that the evidence showed “not only the absence of any

barrier (other than the gully) between the lot and the adjacent sidewalk,” but also

indicated that “even a standard and common curb, bollard, or wheel block” would have

prevented the injury. Id. at 675. The Court adopted the following analysis, from an

opinion upholding the liability of a restaurant owner where a vehicle crashed through a

wooden barrier and injured a customer standing in a waiting area outside the restaurant:

“Reasonable men could believe it was necessary to have a barrier
separating the waiting customers from those approaching, parking and
leaving in vehicles. Reasonable men could believe that the barrier provided
was inadequate. Reasonable men could believe that the possibility of a car
jumping, lurching, or bolting forward because of mechanical failure, or
negligence of the driver, although remote, was foreseeable, and that in
balancing this possibility against the risk of harm to patrons . . . it would
have been no inordinate burden on the owners or operators, or to the
patrons, to have installed a more substantial barrier protecting that
particular area of the premises.”

Id. at 675-76 (quoting Barker v. Wah Low, 97 Cal. Rptr. 85, 92 (Dist. Ct. App. 1971)).

The Court recognized that a storekeeper has no obligation “to erect an

impenetrable wall around [the] building or to protect [store] patrons from every manner

or form of harm[.]” Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md. App. at 675. The

Court “conclude[d] only that where there is evidence to establish, or fairly to support the

inference, that the injury arose at least in part from an unsafe condition in the

storekeeper’s property, and that, as to the storekeeper, the class of harm that occurred

was reasonably foreseeable and could reasonably have been prevented or guarded

against, the issues of proximate cause and foreseeability are for the trier of fact to

27
determine[.]” Id. (emphasis in original). Applying that standard, the Court determined

that Luskins was not entitled to judgment in its favor as a matter of law. Id. The Court

determined that the evidence was sufficient to conclude “that the condition of the

property was unsafe, that the defect constituted a concurrent proximate cause of Mrs.

Steinberg’s injuries, and that, as to Luskins, the occurrence and the harm resulting from it

were reasonably foreseeable.” Id. at 681.

The Court went on to hold that the evidence was also sufficient to prove the

liability of the property owner, Northwestern. Dalmo Sales of Wheaton, Inc. v. Steinberg,

43 Md. App. at 681-87. As the lessor of the property, Northwestern could be subject to

liability if it leased the property for a purpose that involved the admission of the public

and if the unsafe condition of the property existed at the time that it leased the property.

Id. at 681-82. The Court reasoned that, at the time of the lease, Northwestern knew or

should have known that “the parking lot would meet the sidewalk essentially at grade

level, without benefit of a curb[,]” and that the condition of the property “would not

likely be changed before the public was admitted to the property.” Id. at 684-85.

Accordingly, the “key question” was whether there was sufficient evidence that

Northwestern “knew, or, by the exercise of reasonable care, could have discovered, that

the condition was a dangerous one that . . . involved an unreasonable risk of harm to

business invitees who would lawfully be coming onto the property and using the

sidewalk[.]” Id. at 685.

The Court stated: “There was no evidence that Northwestern was aware, at any

time prior to the Steinberg accident, of any problem of automobile encroachments at this

28
or any other property owned by it.” Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md.

App. at 685. Specifically, the Court recognized that no one ever notified Northwestern of

any incidents of vehicles encroaching onto the sidewalk in the parking lot. Id. The Court

stated that the “only evidence . . . in the record dealing with what Northwestern knew or

should have known” was certain testimony from an expert traffic engineer called by Mrs.

Steinberg. Id. The expert testified that “the ‘standard practice’ of separating sidewalks

from adjacent parking lots by curbing, wheel blocks, or bollards” had existed for at least

25 or 30 years and was “‘so fundamental’” by the 1970s that more recent texts would not

even discuss the subject. Id.

The Court reasoned that, “if the practice of so separating sidewalks from adjacent

lots was standard or fundamental 30 years” before 1979, this practice “was something

that Northwestern, an experienced real estate investor, should have known about when it

purchased the property in 1953.” Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md.

App. at 686 (footnote omitted). The Court reasoned further that, “if Northwestern is

chargeable with knowledge of that standard practice, . . . it may also be chargeable with

knowing that a failure to comply with the standard might create a dangerous condition

from which injury could arise.” Id. Thus, even without evidence that Northwestern had

“direct knowledge” of any incidents of vehicles encroaching from the parking lot,

knowledge of the “common and fundamental” practice of “designing parking lots so as to

avoid encroachment of adjacent sidewalks” could “be imputed to a sophisticated

commercial real estate investor such as Northwestern.” Id. at 687. Accordingly,

Northwestern was not entitled to judgment in its favor as a matter of law. Id.

29
In this appeal, Ms. Moore argues that her claims are “factually analogous” to the

claims in Dalmo. Ms. Moore argues that the circuit court erroneously decided that the

incident at the Salisbury CVS store was unforeseeable solely because “there were no

prior accidents to put the store owner on notice” of the unsafe condition. Ms. Moore

argues that “the correct inquiry under Dalmo is whether the harm fell within the ‘general

field of danger’ that should have been anticipated.” Ms. Moore further argues that the

court “ignored” the testimony of her expert witnesses about “customary engineering and

storefront safety standards[.]” In particular, Ms. Moore cites deposition testimony from

her expert engineer, Mr. Boyd, who opined that installing parking spaces directly facing

the storefront entrance was inconsistent with standard engineering principles and created

an unsafe condition for customers.

In response, Maryland CVS contends that the present case is “readily

distinguishable” from Dalmo. Maryland CVS characterizes Dalmo as an opinion that

addresses the “necessity of proving both a dangerous condition and notice” of a

dangerous condition. Maryland CVS highlights the Dalmo Court’s statement that a

“critical fact” in establishing the liability of Luskins was the absence of any “barrier, in

the form of a curb, wheel blocks, or bollards,” to inhibit vehicles from encroaching onto

the sidewalk. Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md. App. at 663. Maryland

CVS repeatedly notes that, in the present case, the parking space at issue had at least a

wheel stop in front of it.

In our assessment, it is unreasonable to interpret Dalmo to mean that any barrier of

any kind, no matter how ineffective, automatically precludes liability against a store

30
proprietor for storefront vehicle accidents. Under the facts of Dalmo, the absence of any

wheel block was especially significant, because the evidence indicated that a standard

wheel block would have prevented that particular accident, in which a parked vehicle

suddenly accelerated forward. The expert testimony “either indicated directly, or allowed

a permissible inference, that the vehicle would not have mounted and overrun either a

six-inch curb or standard-sized wheel blocks, and that, if it did manage to get over such

obstacles, it would have been sufficiently delayed in its forward motion to have allowed

Mrs. Steinberg to reach the relative safety of the entranceway.” Dalmo Sales of Wheaton,

Inc. v. Steinberg, 43 Md. App. at 668.

The Dalmo opinion expressly described the “gully” between the parking lot and

the sidewalk as a “barrier” of some sort, when the Court mentioned “the absence of any

barrier (other than the gully) between the lot and the adjacent sidewalk[.]” Dalmo Sales

of Wheaton, Inc. v. Steinberg, 43 Md. App. at 675 (emphasis added). The Court adopted

the reasoning of an opinion upholding the liability of a restaurant owner even though

there was a wooden barrier between parking spaces and the outdoor waiting area where

the customer was injured. Id. at 675-76. The Court quoted the statements that a

factfinder could reasonably conclude that “‘it was necessary to have a barrier separating

the waiting customers from those approaching, parking and leaving in vehicles[,]’” that

“‘the barrier provided was inadequate[,]’” and that it would not be an inordinate burden

to install “‘a more substantial barrier protecting that particular area of the premises.’” Id.

at 676 (quoting Barker v. Wah Low, 97 Cal. Rptr. at 721). By doing so, the Court

unmistakably recognized that, in appropriate cases, the jury may need to decide whether a

31
barrier provided by a proprietor was adequate and substantial enough to protect invitees

from a class of harm found to be reasonably foreseeable.

In the present case, no evidence indicated that a wheel stop in the parking spaces

in front of the Salisbury CVS store could have impeded a moving vehicle. The only

evidence about the effect of wheel stops came from the experts designated by Ms. Moore.

At his deposition, Mr. Boyd, an engineering expert, testified that a wheel stop is not

“intended to stop a moving car” and “is meant as a notification” to the driver “to not pull

any further” into a parking space. By contrast, Mr. Boyd stated that bollards and certain

landscaping or architectural features may be adequate to protect a storefront from

vehicles. Similarly, Mr. Reiter, an expert safety consultant, stated that there is a

consensus that wheel stops are “not vehicle-stopping barriers[.]” Mr. Reiter testified that

“bollards are used to keep a vehicle from driving through the end of the parking space

and into pedestrian-only areas.” The evidence here did not compel a finding that a wheel

stop was adequate to protect against the risk that a driver might fail to stop while

attempting to park a vehicle.

Maryland CVS argues that the present case is unlike Dalmo because the store

proprietor in that case received reports of “multiple prior incidents of vehicles

encroaching on sidewalks” in the same parking lot. In our assessment, it would be an

error to interpret Dalmo to mean that store proprietors have no obligation to take

protective measures against encroaching vehicles unless and until they receive reports of

incidents at their stores or stores under their control. The central inquiry is whether the

evidence supports an inference that the injury “arose at least in part from an unsafe

32
condition” at the store and that “the class of harm that occurred was reasonably

foreseeable” to the store proprietor and “could reasonably have been prevented or

guarded against” by the proprietor. Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md.

App. at 676 (emphasis omitted). This formulation does not suggest that a store proprietor

avoids liability for reasonably foreseeable accidents as long as the accident is the first one

reported to that proprietor.

To the contrary, the Dalmo opinion specifically upheld the liability of one

defendant even though that defendant lacked actual notice or knowledge of any incidents

of vehicle encroachment at the store. The Court concluded that, even though the property

owner, Northwestern, lacked knowledge of those incidents, other evidence supported an

inference that Northwestern knew or should have known about the dangerous condition

in the parking lot. Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md. App. at 686-87.

The Court reasoned that certain testimony from an expert traffic engineer constituted

“evidence” of “what Northwestern knew or should have known in this regard[.]” Id. at

685. The expert had testified that “the ‘standard practice’ of separating sidewalks from

adjacent parking lots by curbing, wheel blocks, or bollard extended” back at least 25

years and that the practice was “‘so fundamental’” that recent texts do not even mention

that practice. Id. This testimony supported reasonable inferences that Northwestern

should have known about that standard before it leased the property and should have

known that a failure to comply with that standard would create a dangerous condition.

Id. at 686.

In the present case, the record included expert testimony similar to the testimony

33
that supported an inference of constructive knowledge in Dalmo. At his deposition, John

Boyd, an expert civil and environmental engineer, explained that he has personal

experience designing retail stores and parking lots, including a CVS store and a

Walgreens store in other states. Mr. Boyd referred to texts issued by the Institution of

Transportation Engineers, which, he said, emphasize the importance of “ensuring that

pedestrian-vehicular conflicts at entry and exits to buildings are minimized.” According

to Mr. Boyd, “pedestrian and vehicular conflict is one of the utmost important things that

has to be designed out of an engineering design.” In Mr. Boyd’s opinion, “[t]he entire

point of engineering design” in this field “is to reduce” or “eliminate [that] conflict as

part of your design[.]”

Mr. Boyd concluded that the design of the Salisbury CVS store violated the

standard of care for the engineering design of a commercial property. Mr. Boyd stated

that CVS stores and other pharmacy stores are “high-intense use” businesses, with

“significantly more patrons” and “significantly more cars” than other types of businesses.

Because CVS stores provide “one singular entrance” for all customers entering and

exiting the store, Mr. Boyd stated the entrance is “a high-risk area” for “[p]edestrian and

vehicular conflict.” Mr. Boyd opined that the Salisbury CVS store had “an odd layout

not consistent with typical engineering standards[.]” Specifically, Mr. Boyd opined that

the three unreserved parking spaces near the entrance were “pointed directly head-in at

the front of the store with no protection” at a “significantly high pedestrian area with a

high risk of conflict.” Mr. Boyd concluded that those spaces were “put in a location” that

34
was “not consistent with typical engineering design” and that “created [a] hazard.”3

Throughout this case, Maryland CVS has disputed the premise that the parking

space at issue here was pointed directly at the entrance doors. When deposing Mr. Boyd,

counsel for Maryland CVS asserted that the parking space through which Ms. Belfort

drove her vehicle was, in fact, pointed at one of the accessible, ADA-compliant parking

spaces rather than the entrance itself. Mr. Boyd agreed that the parking space identified

by counsel was “perpendicular to” an accessible parking space. Mr. Boyd stated,

however, that a vehicle would be “pointed directly at the front of the store” while making

a right-hand turn to pull into that spot. Mr. Boyd stated that, “as part of th[e] turning

movement,” a vehicle “could be directed into th[e] conflict area with a driving mistake.”

Mr. Boyd opined that arranging a parking space perpendicular to an accessible parking

space is “inconsistent with standard engineering design,” and that a parking space

“typically would not be installed th[at] way in a properly engineered parking lot[,]”

because the arrangement “creates a secondary hazard and conflict[.]”4

3
Mr. Boyd noted that other CVS stores in Maryland are “designed differently”
from the Salisbury CVS store, in that those stores “do not allow head-in parking faced
directly at the front doors,” and “they have protection” in the form of landscaping
features or bollards.
4
Ms. Moore also designated a second expert, Mr. Reiter, to testify about standards
for the use of protective devices at retail businesses with parking lots. At his deposition,
Mr. Reiter stated that he based his opinions in part on publications from federal agencies
and insurance industry entities concerning “pedal error accidents” and “information from
various commercial property entities or retail entities or restaurant entities” about the
risks associated with head-in parking spaces. Mr. Reiter testified that “pedal error
accidents” occur most frequently at “parking spaces that are pointed at the front door or
near the front door because those are the areas . . . where parking is done the most” and
because “pedestrians are most concentrated” in those areas. Mr. Reiter opined that the

35
A factfinder would be entitled to credit the expert testimony establishing that, at

the time of the crash at the Salisbury CVS store, it was a standard practice to avoid

placing or keeping head-in parking spaces directed at store entrances used by pedestrians

at a high frequency without installing a bollard or other vehicle-stopping barrier. As the

owner and operator of pharmacy stores throughout this State, Maryland CVS is an entity

at least as sophisticated as the real estate investor from Dalmo. Accordingly, one could

reasonably conclude that Maryland CVS knew or should have known about the standards

described by Mr. Boyd and about dangers that might arise from failing to comply with

those standards. Knowledge of standards “as common and fundamental” as Mr. Boyd

described “could well be imputed to” Maryland CVS. Dalmo Sales of Wheaton, Inc. v.

Steinberg, 43 Md. App. at 687. “The imputation is by inference, of course, but it is an

inference fairly arising from” the testimony. Id.

In addition to its attempts to distinguish Dalmo, Maryland CVS proposes an

exceptionally narrow view of what might constitute admissible evidence that it had actual

or constructive notice of a dangerous condition. Maryland CVS theorizes that the circuit

court narrowed the scope of admissible evidence of notice at the discovery motions

hearing on September 14, 2023.

During that hearing, the court partially granted Ms. Moore’s motion to compel

three unreserved parking spaces near the entrance to the Salisbury CVS store were “at
risk” and that the entrance “should have been protected” by bollards or other measures
such as landscaping features. Mr. Reiter opined that the entrance was “subject to vehicle
incursion from those three spaces[,]” even though those spaces are pointed toward the
entrance “at an angle.”

36
Maryland CVS to respond to certain interrogatories. Maryland CVS argued that it did

not “have access to all of the data or information” requested in the interrogatories because

various “independent entities” own individual CVS stores throughout the country. In

response to questions about what information Maryland CVS could provide, counsel

mentioned that “this particular CVS” was part of a geographical “district” with several

other stores. The court ordered Maryland CVS to disclose any incidents within five years

of the accident of a vehicle driving into a stand-alone store with parking around it,

located in the same geographical district. The court also compelled Maryland CVS to

disclose whether a stand-alone store in the same district had ever been advised by

government authorities to install safety devices around the store to protect against

vehicles.

Maryland CVS characterizes the circuit court’s discovery ruling as a “ruling on the

scope of notice.” Maryland CVS asserts that this ruling “determined the relevant scope

of notice geographically and as to time frame and store type.” According to Maryland

CVS, evidence of any incidents outside the scope of the ruling would be “inadmissible”

as evidence of actual or constructive notice of a dangerous condition. Maryland CVS

argues that, because Ms. Moore has not challenged that discovery ruling on appeal, she

has waived any argument about the scope of that ruling.

Maryland CVS’s interpretation of the circuit court’s discovery ruling lacks merit.

When partially granting the discovery motion, the court decided a narrow issue of

whether it should compel Maryland CVS, over its objection, to answer certain numbered

interrogatories. The court’s ruling was informed by practical concerns about whether

37
Maryland CVS possessed or had the ability to obtain the information sought without

undue burden. The court did not decide, nor was it required to decide, questions about

the admissibility of evidence or the legal sufficiency of evidence. Moreover, the circuit

court did not decide any discovery matters related to CVS Pharmacy, whose refusal to

respond to discovery requests became the subject of a later, unresolved motion to compel.

The discovery order does not limit the evidence that might tend to prove that the class of

harm that occurred here was reasonably foreseeable to one or more defendants.

We conclude that Maryland CVS, much like the defendants in Dalmo, was not

entitled to judgment in its favor as a matter of law. Maryland CVS was not entitled to

summary judgment merely because the parking space had a wheel stop—something

which, by all accounts, would not impede a moving vehicle. Maryland CVS was not

entitled to summary judgment merely because there were no prior vehicle crashes at the

same store or at certain nearby CVS stores. The evidence in the record was sufficient to

allow a reasonable jury to conclude that Maryland CVS knew, or by the exercise of

reasonable care, could have discovered that the arrangement of the parking spaces and

entrance of the Salisbury CVS store presented an unreasonable risk of harm to invitees

using the entrance.

Although Ms. Moore is not required to prove that Maryland CVS had prior notice

of similar incidents, evidence of other incidents may still be probative of whether the

class of harm that occurred was reasonably foreseeable to one or more defendants. Ms.

Moore contends that, because CVS Pharmacy acted as an agent of Maryland CVS

Pharmacy in various functions, any knowledge of CVS Pharmacy concerning vehicle

38
crashes should be imputed to Maryland CVS. Citing an expert report from Mr. Reiter,

Ms. Moore asserts that CVS Pharmacy had an extensive history of crashes—more than

100 incidents of vehicles crashing into CVS stores around the United States between

2011 and the time of the accident. Maryland CVS disputes the admissibility of Mr.

Reiter’s report, arguing that “a self-serving report being offered by the party who

prepared it . . . would not be admissible at trial.” Kelly v. Baltimore County, 161 Md.

App. 128, 150 (2005). In addition to the report, however, Mr. Reiter also gave deposition

testimony about the history of storefront accidents at CVS stores across the country,

citing his research of publicly available information.5

The summary judgment record is inadequate for this Court to decide the potential

admissibility of evidence about prior vehicle crashes at other CVS stores or to address

whether the purported knowledge of CVS Pharmacy concerning other incidents might be

imputed to Maryland CVS. On remand, if Ms. Moore offers evidence about prior

incidents at CVS stores, the circuit court should rule on any objections in accordance

with the rules of evidence. As discussed previously, the discovery ruling from September

14, 2023, is not a basis to exclude evidence that might tend to prove that the class of harm

that occurred was reasonably foreseeable to a defendant.

5
Mr. Reiter testified that he compiled his database of incidents about storefront
crashes using “a mix of media reports, information gained as a result of litigation, police
reports,” and “some academic studies[.]” Generally, “if the facts and data that an expert
relies on are ‘of a type reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject,’ they need not be independently admissible at
trial.” Levitas v. Christian, 454 Md. 233, 246 (2017) (quoting Md. Rule 5-703(a)).

39
II. Evidence of Ownership or Control by CVS Pharmacy

Although there is no dispute that Maryland CVS owed a duty of reasonable care to

Ms. Moore, CVS Pharmacy contends that it owed no duty to any invitees of the Salisbury

CVS store. CVS Pharmacy moved for summary judgment based on the assertion that it

does not own or operate the Salisbury CVS store. CVS Pharmacy asserted that it was

merely the parent company of Maryland CVS, the entity that leases the store premises

and directly operates the Salisbury CVS store. The circuit court granted summary

judgment in favor of CVS Pharmacy, stating that “there was sufficient evidence in the

record as it relates to [Maryland CVS] being on the lease, having sufficient control, and

exercising that control over the property[.]” In other words, the court was persuaded by

CVS Pharmacy’s argument that Maryland CVS was the sole operator of the store.

On appeal, Ms. Moore contends that the circuit court applied an incorrect standard

and failed to consider whether there were genuine disputes of material fact. Ms. Moore

argues that the court “ignored factual disputes concerning [CVS Pharmacy’s]

management and control of the store” and “the agency agreement” between Maryland

CVS and CVS Pharmacy. Ms. Moore also argues that, despite CVS Pharmacy’s refusal

to answer any discovery requests, she still produced evidence “regarding [CVS

Pharmacy’s] control of the subject store, as manager and not owner[.]” Ms. Moore cites

the deposition testimony in which Mr. Pawlewicz, an employee of CVS Pharmacy, stated

that CVS Pharmacy operates and manages the Salisbury CVS store and described various

aspects of its control over individual stores. Ms. Moore asserts that the affidavit from

Mr. Moffatt confirms that Maryland CVS “delegates its store-related administrative and

40
management duties” to CVS Pharmacy through an agency agreement. Ms. Moore quotes

an affidavit submitted by Mr. Moffatt in a different case, in which he stated that “CVS

Pharmacy, Inc.’s operations consist mainly of controlling and managing individual CVS

pharmacies and retail stores.”

As mentioned previously, the summary judgment standard requires a court to

consider the record in the light most favorable to the non-moving party and to construe

all reasonable inferences that may be drawn from the facts against the moving party. See,

e.g., Adventist Healthcare, Inc. v. Behram, 488 Md. 410, 431-32 (2024). The court’s role

“is not to resolve factual disputes but merely to determine whether those disputes ‘exist

and are sufficiently material to be tried.’” Id. at 432 (quoting Gambrill v. Bd. of Educ. of

Dorchester County, 481 Md. 274, 297 (2022)). Considered in the light most favorable to

Ms. Moore, the evidence adequately supported the conclusion that CVS Pharmacy

operates, manages, or controls the Salisbury CVS store.

At his deposition, Mr. Pawlewicz referred to his employer as “CVS Health,”

which he understood to be another name for “CVS Pharmacy, Incorporated[.]” Mr.

Pawlewicz admitted that he was unsure whether CVS Health and CVS Pharmacy were

separate entities. In any event, all parties agree that Mr. Pawlewicz was, in fact, an

employee of CVS Pharmacy. Mr. Pawlewicz testified based on his experiences as a

district leader for CVS Pharmacy, overseeing the Salisbury CVS store and other CVS

stores in Maryland and Delaware. Mr. Pawlewicz summarized his oversight duties as

“ensur[ing] the operation of the building [and] that it is staffed and it is meeting CVS

core expectations[.]”

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Mr. Pawlewicz testified, to the best of his knowledge, that his employer “operates

and manages” the Salisbury CVS store and the other CVS stores that he oversees.

Counsel for Ms. Moore inquired at length about different aspects of CVS Pharmacy’s

operation and management of CVS stores. Among other things, Mr. Pawlewicz stated

the policies of CVS Pharmacy require store managers to report incidents involving “any

injury” to “anybody on the premises of CVS” or involving “damage to the building.” Mr.

Pawlewicz also stated that store managers use a centralized “service channel database” to

report “any repairs that need to be done to a building.” This service channel database

“covers a broad variety of things[,]” including “[l]ighting, plumbing, electricity, . . .

carpeting[,]” and “[j]ust anything inside and outside th[e] four walls that are not

functioning properly.” According to Mr. Pawlewicz, vendors for repairs or maintenance

submit invoices directly to his employer’s “facilities department” rather than to

individual CVS stores.

CVS Pharmacy has failed to identify any basis for the court, when deciding a

summary judgment motion, to disregard Mr. Pawlewicz’s testimony describing CVS

Pharmacy’s operation and management of individual CVS stores. In its appellate brief,

CVS Pharmacy offers an only indirect response to the argument that this testimony

generates a genuine dispute of material fact. CVS Pharmacy notes that Mr. Pawlewicz

was “not offered as a designee” for CVS Pharmacy, that he testified “over objection”

about many deposition topics, and that he “testified ‘to the best of [his] knowledge’

only.” CVS Pharmacy vigorously disputes Mr. Pawlewicz’s testimony that CVS

Pharmacy owns the Salisbury CVS store. CVS Pharmacy notes that Mr. Pawlewicz

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clarified that he lacked “personal knowledge as to who the owner of the Salisbury store

is” and that “he ‘just assume[d]’” that the stores that he oversees were “‘corporately

owned stores[.]’”

Although Mr. Pawlewicz stated that he lacked knowledge about the ownership of

the Salisbury CVS store, he did not state that he lacked knowledge about his employer’s

operation and management of CVS stores. As we understand Ms. Moore’s argument, she

is no longer claiming that CVS Pharmacy directly owns the Salisbury CVS store.

Instead, she is proceeding on a theory that CVS Pharmacy operates and manages the

Salisbury CVS store under an agency agreement in which Maryland CVS delegated

managerial control to CVS Pharmacy. The existence of that agency relationship is

undisputed. The affidavit from Mr. Moffatt, a vice president of CVS Pharmacy and

president of Maryland CVS, affirms that CVS Pharmacy performs certain administrative

and management functions under an agency agreement with Maryland CVS.

CVS Pharmacy contends that the evidence failed to establish that this agency

relationship extends to the design or maintenance of the parking lot. We disagree. Mr.

Pawlewicz’s testimony indicated that the control that CVS Pharmacy exercises over

individual CVS stores includes, at a minimum, decisions about repairs and maintenance

of physical structures and facilities inside and outside the store. It would be incongruous

to conclude that the entity responsible for approving and paying for repairs and

maintenance at the store lacks control over decisions such as whether to install bollards or

other devices in front of parking spaces. Construing the testimony in the light most

favorable to Ms. Moore, a factfinder could conclude that CVS Pharmacy, rather than

43
Maryland CVS, controls any decisions about the use of protective devices at the store

entrance.

In arguing that the evidence conclusively shows that CVS Pharmacy does not

operate or manage the Salisbury CVS store, CVS Pharmacy largely relies on the affidavit

from Mr. Moffatt. Mr. Moffatt wrote that CVS stores in Maryland “are directly owned

and operated by” Maryland CVS. Mr. Moffatt stated that Maryland CVS “operates its

respective stores, maintains its own profits and losses, . . . owns and/or leases its own

buildings[,] . . . hires and employs its own non-pharmacist employees[,]” and “pays its

own employees[.]” Mr. Moffatt also stated that Maryland CVS “outsources its field

management, human resources, payroll, and other administrative services.” According to

Mr. Moffatt, Maryland CVS “entered into an agency agreement” with CVS Pharmacy,

“so that [CVS Pharmacy] could provide certain services” to Maryland CVS and “act on

its behalf in things like field management, human resources, payroll processing, tax

compliance and processing, and other similar administrative and management functions.”

Mr. Moffatt also stated that, under this agency agreement, Maryland CVS pays for any

expenses related to those services.

CVS Pharmacy argues that Mr. Moffatt’s affidavit “makes clear that the agency

relationship extends only to certain administrative tasks.” (Emphasis added.) By its own

terms, however, the affidavit does not purport to give an exhaustive account of the terms

of the agency agreement. The affidavit states that the agreement encompasses “certain

services” and “things like field management, human resources, payroll processing, tax

compliance and processing, and other similar administrative and management functions.”

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This wording does not specify whether those categories are exclusive, nor does it specify

which types of decisions might fall within those broadly-worded categories. The

affidavit does not address whether CVS Pharmacy controls matters such as the use of

protective devices between the parking lot and the entrance. Moreover, the testimony of

Mr. Pawlewicz suggests that the scope of CVS Pharmacy’s control goes beyond

“administrative tasks,” such as processing paychecks, to include matters such as

maintenance and repairs.

One of the final paragraphs of Mr. Moffatt’s affidavit included a broad assertion

that Maryland CVS does not “directly own, lease, control, or operate” the Salisbury CVS

store or other CVS stores in Maryland. This assertion, in the context of his other

statements about the agency agreement, necessarily involves a legal conclusion about the

scope of the agency agreement. CVS Pharmacy did not, however, produce the agreement

itself to provide the factual basis for that legal conclusion.

Generally, “a moving party may not rely on unsupported conclusory statements to

justify the grant of summary judgment.” Hill v. Cross Country Settlements, LLC, 402

Md. 281, 308 (2007). In the Hill case, the Court reversed the grant of summary judgment

in favor of a real estate closing agency that had brought an unjust enrichment claim to

recover certain funds. One material issue was whether the agency paid those funds to a

title insurer under legal compulsion. Id. at 305-06. Moving for summary judgment, the

agency relied on an affidavit stating that an underwriting agreement required the agency

to make that payment. Id. at 306.

The Court explained that the “wholly legal conclusions, explicit and implicit,

45
contained in [the] affidavit regarding the asserted legal effect of the alleged underwriting

agreement [we]re neither facts nor would they be admissible in evidence[.]” Hill v. Cross

Country Settlements, LLC, 402 Md. at 306. If the real estate closing agency “desired to

rely on the legal conclusion” that the underwriting agreement required the agency to

make the payment, the agency “was required to produce the underwriting agreement or,

at a minimum, recite the relevant operative terms.” Id. at 307-08. The Court reversed the

grant of summary judgment to the extent that it was based on “an unsupported conclusion

regarding the interpretation and/or legal effect of the absent underwriting agreement[.]”

Id. at 308.

Under the principle applied in Hill, the conclusory statements in Mr. Moffatt’s

affidavit, asserting that CVS Pharmacy does not operate or control the Salisbury CVS

store, do not justify the grant of summary judgment. To the extent that CVS Pharmacy’s

motion rested on a legal conclusion about the scope of the agency agreement, it was

inadequate to assert that conclusion by affidavit without producing the factual basis for

that conclusion. See Hill v. Cross Country Settlements, LLC, 402 Md. at 306-07.

As it did in the circuit court, CVS Pharmacy maintains that the claims against it

are an improper attempt to hold a parent company liable for the alleged negligence of its

subsidiary. In support of that contention, CVS Pharmacy cites Dixon v. Process Corp.,

38 Md. App. 644 (1978). When the circuit court granted CVS Pharmacy’s motion, the

court stated that it believed that the Dixon case was “on point.”

Under the facts of that case, a creditor had obtained confessed judgments against a

parent corporation that had defaulted on promissory notes. Dixon v. Process Corp., 38

46
Md. App. at 649. The creditor mistakenly believed that the parent corporation owned

certain real property, but the creditor later discovered that a subsidiary corporation held

title to the property. Id. at 650. The creditor brought suit for a decree that would

disregard the separate identities of the parent corporation and the subsidiary corporation

and allow the creditor to collect the judgment debt using the real property owned by the

subsidiary corporation. Id.

At trial, much of the evidence “cast doubt as to the separate corporate identities”

of the parent corporation and its subsidiary corporation. Dixon v. Process Corp., 38 Md.

App. at 654. The parent corporation “conducted the management affairs of all its

subsidiaries, owned the equipment they used, hired their employees, paid their office

rents, and operated the payrolls and unemployment matters.” Id. at 647. Despite this

evidence, this Court upheld the decision to deny the creditor’s claim. Id. at 655. This

Court recognized that, under Maryland law, “‘the corporate entity will be disregarded

only when necessary to prevent fraud or to enforce a paramount equity.’” Id. at 654

(quoting Bart Arconti & Sons, Inc. v. Ames-Ennis, Inc., 275 Md. 295, 312 (1975)). The

Court concluded that, under the facts presented, the trial court was not clearly erroneous

when it found no fraud and no paramount equity that might justify disregarding the

separate identities of the corporations. Dixon v. Process Corp., 38 Md. App. at 655.

In this appeal, Ms. Moore argues that Dixon is inapposite because her claim

against CVS Pharmacy has “nothing to do with piercing the corporate veil” of Maryland

CVS. Ms. Moore observes that the Dixon case “did not involve an agency agreement

between the two entities.” Ms. Moore argues that she is seeking to hold CVS Pharmacy

47
liable for its own actions “as the operator and manager of the store,” in its role as an

agent of Maryland CVS. Ms. Moore contends that, if CVS Pharmacy operated, managed,

and controlled the Salisbury CVS store, acting as an agent, then CVS Pharmacy owed her

a duty of reasonable care.

CVS Pharmacy asserts that, because Ms. Moore has disavowed any reliance on a

corporate veil-piercing theory, her claim against CVS Pharmacy “depends exclusively on

an agency theory of liability[.]” CVS Pharmacy nevertheless contends that Ms. Moore

cannot pursue that theory because she did not allege the agency relationship in her

pleadings. CVS Pharmacy argues that, in order to seek liability that entails an agency

relationship, Ms. Moore would need to amend her complaint to allege that agency

relationship. CVS Pharmacy further argues that any such amendment would be barred by

the statute of limitations because it would introduce a new cause of action.

CVS Pharmacy cites no authority for the proposition that, when a theory of tort

liability entails an agency relationship between two defendants, the pleadings must

expressly allege the existence of that agency relationship. Rather, CVS Pharmacy

invokes general pleading principles. Under Maryland’s “liberal rules of pleading, a

plaintiff need only state such facts in his or her complaint as are necessary to show an

entitlement to relief.” Johns Hopkins Hosp. v. Pepper, 346 Md. 679, 698 (1997) (citing

Md. Rule 2-303(b)). “Accordingly, a plaintiff must state the issue between the parties

with reasonable accuracy so that . . . the defendant may be put on notice of the nature of

the complaint that [the defendant] is required to answer and defend.” B & P Enters. v.

Overland Equip. Co., 133 Md. App. 583, 621 (2000) (citing Fletcher v. Havre de Grace

48
Fireworks Co., 229 Md. 196, 200 (1962)).

As amended, the complaint here expressly alleged that both CVS Pharmacy and

Maryland CVS “owned, operated, maintained, and managed” the store premises. The

amended complaint also alleged that both CVS Pharmacy and Maryland CVS “retained

exclusive ownership, possession, control, and/or supervision” of the premises. Under any

fair reading, the pleadings were sufficient to communicate an allegation that CVS

Pharmacy operated, managed, or controlled the Salisbury CVS store. Adding language to

specify that CVS Pharmacy acted in its capacity as agent for defendant Maryland CVS

would not introduce an entirely new claim. “‘[S]o long as the operative factual situation’

remains ‘essentially the same,’ a ‘new cause of action’ is not introduced by an

amendment which merely sets forth ‘a new theory’ or invokes ‘different legal

principles.’” Youmans v. Douron, Inc., 211 Md. App. 274, 291 (2013) (quoting Crowe v.

Houseworth, 272 Md. 481, 485-86 (1974)).

In Asphalt & Concrete Services, Inc. v. Perry, 221 Md. App. 235 (2015), this

Court held that an amended complaint that articulated a new theory of liability based on

an alleged agency relationship between two defendants did not introduce a new cause of

action. In that case, a pedestrian injured by a dump truck brought negligence claims

against the driver, a limited liability company that allegedly employed the driver, and a

corporation that allegedly hired the limited liability company. Id. at 241-42. After

discovery showed that the limited liability company was a “forfeited” entity and simply

“a trade name” used by the driver, the trial court permitted the plaintiff to amend the

complaint to allege that the corporation employed the driver as its agent and that the

49
driver was subject to the corporation’s control and direction. Id. at 243-44. This Court

concluded that this amendment “did not change the operative fact pattern or state a new

cause of action” but “merely reflected” the information produced during discovery. Id. at

269. This Court held, therefore, that the amendment related back to the timely original

complaint. Id. at 270.

In light of Asphalt & Concrete Services, Inc. v. Perry, 221 Md. App. at 268-70,

CVS Pharmacy is incorrect in arguing that the statute of limitations bars Ms. Moore from

pursuing her claim that CVS Pharmacy operated and managed the Salisbury CVS store as

an agent of Maryland CVS. Ms. Moore’s pleadings expressly alleged that Maryland

CVS and CVS Pharmacy “owned, operated, maintained, and managed” the store

premises. An amendment to specify that CVS Pharmacy operated and managed the store

under an agency agreement with Maryland CVS would not introduce any new cause of

action.

Ms. Moore notes that CVS Pharmacy “withheld the existence of an agency

agreement” with Maryland CVS until after the close of discovery.6 Although CVS

Pharmacy never disputed that it had been properly served, CVS Pharmacy unwaveringly

refused to respond to any discovery requests based on its unilateral assertion that it was

“not a proper defendant” in the case. CVS Pharmacy first disclosed the agency

6
CVS Pharmacy denies withholding information about the agency relationship
and claims that Ms. Moore failed to make discovery requests about the agency
relationship. To the contrary, Ms. Moore’s interrogatories sought the disclosure of
documents relating to the “control” or “management” of the Salisbury CVS store. This
interrogatory was broad enough to include an agreement under which CVS Pharmacy
performs various management functions for Maryland CVS.

50
agreement with Maryland CVS in the Moffatt affidavit, filed with the reply in support of

the summary judgment motion. Under the circumstances, it would be unreasonable to

fault Ms. Moore for failing to allege the existence of the agency relationship before its

disclosure. If CVS Pharmacy insists that the pleadings must expressly allege the

existence of the agency relationship, there is no sound reason for a court to refuse to

permit Ms. Moore to make such an amendment.

In sum, CVS Pharmacy failed to demonstrate that it was entitled to summary

judgment on the ground that it did not operate, manage, control, or maintain the Salisbury

CVS store. The evidence in the record, considered in the light most favorable to Ms.

Moore, generated a genuine dispute of material fact about whether CVS Pharmacy

operated or managed the Salisbury CVS store at the time of the accident. The actual

extent of CVS Pharmacy’s control over the store is a triable issue of fact.

CONCLUSION

For the reasons stated in this opinion, we conclude that the circuit court erred by

granting summary judgment in favor of Maryland CVS and CVS Pharmacy. The record

shows that there are genuine disputes of material fact on the issues of whether the

defendants knew or should have known of the alleged unsafe condition and whether CVS

Pharmacy operated, managed, or controlled the Salisbury CVS store as an agent of

Maryland CVS.7 The defendants failed to demonstrate that they are entitled to judgment

7
On remand, Ms. Moore is entitled to conduct discovery concerning the agency
agreement between CVS Pharmacy and Maryland CVS and the nature and extent of CVS
Pharmacy’s operation, management, or control over the Salisbury CVS store.

51
in their favor as a matter of law.

JUDGMENT OF THE CIRCUIT COURT
FOR WICOMICO COUNTY REVERSED.
CASE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS TO BE PAID BY
APPELLEES.

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