Tolbert-Boyd v. MGM National Harbor, LLC et al, No. 8:2019cv03020 - Document 17 (D. Md. 2020)

Court Description: MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/17/2020. (sat, Chambers)

Download PDF
Tolbert-Boyd v. MGM National Harbor, LLC et al Doc. 17 Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND THERESA TOLBERT-BOYD, : Individually and as Personal Representative of the Estate of : Donald Franice Boyd : v. : Civil Action No. DKC 19-3020 : MGM NATIONAL HARBOR, LLC, et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this wrongful death and survival action is the motion to dismiss filed by Defendants MGM National Harbor, LLC (“MGM”) and National Harbor Grand, LLC (“National “Defendants”). briefed, and necessary. (ECF the No. court Harbor 14). now Local Rule 105.6. Grand”) The rules, issues no (collectively, have hearing been being fully deemed For the following reasons, the motion to dismiss will be granted in part and denied in part. I. Background Unless otherwise noted, the facts outlined here are set forth in the amended complaint and construed in the light most favorable to Plaintiff. In April 2013, shortly after Maryland legalized table games in casinos, Defendants MGM and National Harbor Grand entered a hotel and casino ground lease together. (ECF No. 12, ¶ 7). The Dockets.Justia.com Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 2 of 17 lease outlined that MGM would open and operate the hotel and casino on the premises which would be owned by National Harbor Grand. (Id., ¶ 8). It was not until the fall of 2016 that the MGM National Harbor, including a 125,000 square foot casino and 24-story hotel, was open to the public. Defendants owned, operated, controlled (Id., ¶ 9). and premises on July 9, 2017, the day in question. The resort was equipped with multiple maintained Both the (Id., ¶¶ 10-11). security cameras that produce live feeds which run and are monitored by staff twentyfour hours a day, seven days a week. (Id., ¶¶ 12-13). Further, the staff on site were trained and certified in Cardiopulmonary Resuscitation (“CPR”). (Id., ¶ 20). On July 9, 2017, Mr. Donald Franice Boyd (“Mr. Boyd” or “Decedent”) visited the MGM National Harbor resort to patronize the casino. (ECF No. 12, ¶ 17). went into cardiac arrest. Around 10:30 p.m., Mr. Boyd (Id., ¶ 18). Mr. Boyd was left lying unattended on the floor of the casino’s South Lounge as staff moved in to keep other patrons away. (Id., ¶ 22). At that time, staff did not provide resuscitative assistance to Mr. Boyd in the form of CPR or use an automated external defibrillator (“AED”). (Id., ¶ 23). Mr. Boyd remained unattended until 10:50 p.m., at which time law enforcement arrived, and an “Officer Proctor” made a call to the Prince George’s County Public Safety Communication (911) at approximately 10:50:51 p.m. 2 (Id., ¶¶ 25- Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 3 of 17 26). In response to this call, emergency response personnel arrived on the scene at 10:58:53 p.m. and began resuscitative measures, including the use of an AED. was eventually transported to INOVA (Id., ¶ 27). Hospital in Mr. Boyd Alexandria, Virginia where he was diagnosed with an “anoxic brain injury.” (Id., ¶ 31). He was subsequently transferred to Bridgepoint Hospital Capitol Hill in Washington, D.C., where he remained until his death on September 4, 2017. of death “Respiratory Failure, Anoxic His cause Brain Injury, Ventricular Fibrillation and Coronary Artery Disease.” (Id., ¶ 32). was (Id., ¶ 31). In particular, Plaintiff credits the oxygen deprivation of the cardiac arrest as the ultimate cause of death. On August 29, 2019, Ms. Theresa (Id., ¶ 28). Tolbert-Boyd, both individually and as personal representative of the estate of Decedent, filed her Complaint against Defendants in the Circuit Court for Prince George’s County, Maryland. 2019, Defendants removed diversity jurisdiction. Motion to Dismiss. the case to this On October 16, court based on On October 25, 2019, Defendants filed a On November 8, 2019, Plaintiff filed her Amended Complaint, thus mooting the initial Motion to Dismiss. The Amended Complaint asserts a wrongful death claim and a survival action negligence death. as and the advances direct and three theories proximate (Id., ¶ 35). 3 cause of Defendants’ of Mr. Boyd’s Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 4 of 17 On November 22, 2019, Defendants moved to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim and/or for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (ECF No. 14, at 2). On December 6, 2019, Ms. Tolbert-Boyd responded (ECF No. 15), and Defendants replied on December 20, 2019 (ECF No. 16). II. Standard of Review A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the complaint. Presley v. City Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). of As this court has previously stated, Fed.R.Civ.P. 12(c) does not provide an independent conjunction ground with for other dismissal rules including Fed.R.Civ.P. 12(b). but should authorizing be pretrial read in motions Geoghegan v. Grant, No. 10-11137- DKC, 2011 WL 673779, at *3 (Feb. 17, 2011) (citing 5C Wright & Miller, Federal Practice & Procedure § 1369 (3d.ed. 2010)). survive a motion to dismiss, “a complaint must To contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). At this stage, a court must consider all well-pleaded allegations in a complaint as true, see Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe factual allegations in the light most favorable to the plaintiff, see Lambeth v. Bd. of Comm'rs of Davidson Cty., 4 Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 5 of 17 407 F.3d 266, 268 (4th Cir. 2005). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989). conclusions couched Iqbal, U.S. 556 as at factual 678 allegations (2009), as are are Legal insufficient, conclusory factual allegations devoid of any reference to actual events. United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” (quoting Fed.R.Civ.P. 8(a)(2)). Iqbal, 556 U.S. at 679 Thus, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. III. Analysis As surviving spouse to Decedent, Ms. Tolbert-Boyd brings a wrongful death action (“Count I”) in her personal capacity, as well as a survival action as personal representative of his estate (“Count II”). provides a potential The Maryland Wrongful Death Act expressly remedy “for the benefit of the husband, parent[,] and child” of the deceased person. wife, Md.Code Ann., Cts. & Jud. Proc. § 3–904(a)(1) (emphasis added); see also 5 Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 6 of 17 Spangler v. McQuitty, 449 Md. 33, 53-54 (2016). Under the Maryland survivorship statute, the personal representative of a decedent’s estate may bring “a personal action which the decedent might have commenced or prosecuted . . . against a tortfeasor for decedent.” Md. 460 a wrong which resulted in the death of the Beynon v. Montgomery Cablevision Ltd. P’ship, 351 (1998); Md.Code Ann., Cts. & Jud. Proc. § 6-401. Wrongful death and survivor actions form distinct claims, but, in arising from the same set of facts and from the same theories of negligence on behalf of the Defendants, they will be analyzed together. See Munger v. United States, 116 F.Supp.2d 672, 676 (D.Md. 2000) (discussing that while wrongful death actions and survival actions are distinct claims in Maryland, they arise from the same facts with the same witnesses under the same standards of law). As three the basis theories for of both counts, Defendants’ Ms. alleged Tolbert-Boyd negligence asserts which she argues caused her late husband’s death, i.e. that Defendants: (1) failed to provide CPR despite being licensed in these measures, (2) failed to have an AED or portable defibrillation equipment on site, and (3) did not summon emergency medical personnel experienced until approximately cardiac arrest. 20 (ECF minutes No. 12, ¶ after Mr. Boyd 35). In turn, Defendants argue that: “(1) Defendants did not owe [Decedent] a 6 Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 7 of 17 legal duty to administer resuscitative assistance, (2) Defendants did not owe [Decedent] a legal duty to have an on-site AED or portable defibrillation equipment, and (3) the Amended Complaint contains insufficient factual allegations to support the conclusory assertion that Defendants summon emergency personnel in a timely manner.” at 3). state failed to (ECF No. 14-1, As will be discussed, the Amended Complaint fails to a specific claim duty resuscitative for to negligence provide measures, against on-site neither Defendants resuscitative of which based on a equipment and Maryland law recognizes, but survives dismissal in alleging sufficient facts to establish a breach of their general duty to care for Decedent as a business invitee, and to establish this breach as the proximate cause of his death. To prove negligence under Maryland law, a plaintiff must show: “(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 defendant’s loss breach or of injury the proximately duty.” resulted Muthukumarana v. from the Montgomery Cty., 370 Md. 447, 486 (2002) (quoting Valentine v. On Target Inc, 353 Md. 544, 549 (1999)). Under Maryland law, there is no general duty to rescue someone in danger even when a party realizes or should realize 7 Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 8 of 17 that action on his or her part is necessary for protection of the other person between them. both parties unless there is a “special relationship” Lamb v. Hopkins, 303 Md. 236, 242 (1985). acknowledge, of the narrowly drawn As categorical exceptions, Maryland law has recognized that an “employee of a business has a legal duty to take affirmative action for the aid or protection Griffith, 332 of a Md. business 704, 717 invitee.” (1993). Southland Maryland Corp. courts v. have cautioned that such a “special relationship” simply triggers a duty to exercise reasonable care. Inc., 170 Md.App 104 (2006) Veytsman v. New York Palace, (citing Corindali Courtyard, Inc., 162 Md.App. 207, 220 (2005)).1 v. Columbia In this context, reasonable care means “to protect the invitee from injury caused by an unreasonable risk which the invitee, by ordinary care for his own safety, will not discover.” exercising Casper v. Charles F. Smith & Son, Inc., 316 Md. 573, 582 (1989). Plaintiff correctly points out, however, Southland As also expressly adopted § 314 A of the Restatement (Second) of Torts in stating: 1 Plaintiff quotes Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md.App. 381, 388 (1997), in stating that, “[t]he highest duty is owed to a business invitee,” but this quotation in isolation is misleading because the previous sentence makes clear such a statement only means to compare a duty owed to a business invitee to the lesser duty owed to a simple licensee or trespasser. Id. at 387-88. 8 Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 9 of 17 [A]n employee of a business has a legal duty to take affirmative action for the aid or protection of a business invitee who is in danger while on the business’s premises, provided the employee has knowledge of the injured invitee and the employee is not in the path of danger. Id. at 719. There is no dispute that Decedent, as a patron of the casino, was a business invitee and thus owed a duty of reasonable care. Instead the question turns on whether this generalized duty includes the more specific duties outlined by Ms. Tolbert-Boyd in her Amended Complaint and whether Defendants’ conduct breached such a duty. A. Resuscitative Measures Defendants correctly argue that they had no duty to provide resuscitative measures to Mr. Boyd. noted by Defendants, while the (ECF No. 14, at 5-6). facts in Southland did As not themselves address the need for first aid or other resuscitative measures,2 the Southland court favorably cited Drew v. LeJay’s Sportmen’s Café, Inc., 806 P.2d 301 (Wyo. 1991). In that case, the Supreme Court of Wyoming Id. at 717. ruled that a restaurant owner could discharge the duty to a choking patron simply by “summoning medical assistance 2 within a reasonable Defendants’ Motion mentions that the Southland court did not require the store clerk to provide first aid. (ECF No. 141, at 6-7). The danger to the Southland patron was the violence of an ongoing assault. Thus, providing first aid to the patron could have endangered the store clerk. As Plaintiff points out, Maryland law does not require an individual to place himself in harm’s way to aid another. (See ECF No. 15-1, at 5-6). 9 Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 10 of 17 time,” and was not required to render first aid, this despite the fact that, as the dissent pointed out, the employees were trained in CPR. Drew, 806 P.2d at 305; see also id. at 307 (J. Cardine, dissenting). Nowhere does Maryland law establish aid in the form of CPR as an affirmative duty. As Southland itself pointed out, the comments to § 314A state that “[i]n the case of an ill or injured person, he will seldom be required to do more than give such first aid as he reasonably can.” See 332 Md. at 719 n.8 (citing § 314A of Restatement (Second) of Torts). that first aid may be required in certain In suggesting scenarios, this language stops well short of establishing an affirmative duty to render CPR to an notwithstanding, proposition obligation that to personnel. injured Southland the provide patron. quotes restaurant medical Id. at 717-18. Moreover, Drew owner training this language extensively there to its was for the under no food service It would be incongruous, therefore, to hold an employer to a higher duty of care simply because he did provide his employees with such training, as the Drew court itself refused to do. Ms. Tolbert-Boyd has therefore failed to state a claim that Defendants’ owed her late husband a duty to administer CPR in the twenty minutes prior to the arrival of law enforcement. The Motion to Dismiss as it relates to Defendants’ 10 Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 11 of 17 alleged negligence in not providing resuscitative aid to Mr. Boyd will be granted. B. AED and Portable Defibrillation Equipment On-Site Despite citing the defibrillator (“AED”) defibrillation equipment” lack or a on of an automated external “readily available portable site as proof of Defendants’ negligence (ECF No. 12, ¶ 35), Ms. Tolbert-Boyd subsequently concedes in response to the Defendants’ motion that “there is no statutory requirement that Defendants maintain portable defibrillation equipment on site.” While she maintains this failure to AED and/or (ECF No. 15, at 6). have such a device is relevant to the question of whether Defendants’ response was reasonable, it does not constitute a freestanding part of a general duty of reasonable care for business invitees where the legislature has declined to require it by statute. Other jurisdictions have similarly declined to recognize a common law duty to have or administer such equipment absent a statutory requirement. L.A. Fitness Int’l, LLC v. Mayer, 980 So.2d 550, 558 (Fla.Dist.Ct.App. 2008) (“[Courts in other jurisdictions] have declined to extend the duty of reasonable care to include providing medical care or medical rescue services”) (citing Salte v. YMCA of Metro. Chi. Found, 351 Ill.App.3d 524, 527-29 (2004) (holding that the owner of a health club did not have a duty to have a cardiac defibrillator on the premises or to use 11 Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 12 of 17 it on a health club member suffering cardiac arrest); Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 586-90 (2002) (holding a tennis club owed no duty to a member having a heart attack to have or maintain an a defibrillator); Rutnik v. Colonie Ctr. Court Club, Inc., 672 N.Y.S.2d 451, 453 (1998) (holding that a racquetball club was not negligent having a defibrillator on site for emergency use)). Motion to Dismiss as it relates to for not Defendants’ Defendants’ alleged negligence in not providing an AED or portable defibrillation equipment on site will be granted. C. Summoning Medical Assistance It is conceded that Defendants owed Mr. Boyd at least a general duty sufficiently of care alleges as that a business Defendants’ invitee. inaction Plaintiff and alleged failure to summon medical assistance in a timely manner breached that duty, and that this breach was the proximate cause of Mr. Boyd’s eventual death. The Southland court plainly stated: “It is evident from the decisions in other jurisdictions and from the various authorities that a shopkeeper has a legal duty to come to the assistance of an endangered business visitor if there is no risk of harm to the proprietor or its employees.” 332 Md. at 719 (discussing a 7-11 store clerk’s responsibility to come to the aid of an off-duty police officer being assaulted in the store’s parking lot). 12 Nevertheless, as Defendants Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 13 of 17 correctly point out, this decision was narrowly drawn to the facts at hand in stating that the store owed the off-duty officer, as a “business visitor,” “a legal duty to aid (call the police) when he requested assistance.” Id. at 720. Moreover, a business owner does not insure an invitee’s safety, but rather must “have actual or constructive notice that the [p]laintiff was at an unreasonable risk of injury while on its premises.” Jackson v. A.M.F. Bowing Ctrs., Inc., 128 F.Supp.2d 307, 313 (D.Md. 2001) (1971) and (citing Litz (1974)). v. Where have satisfies legal v. Hutzler such jurisdictions his Bender Bros. notice generally duty Nalle, to Co., 20 exists, held aid Inc., a that patron 261 Md. Md.App. courts a 82, 115, 87 122 in other business owner during a medical emergency by summoning medical assistance within a reasonable time. See L.A. Fitness Int’l, LLC, 980 So.2d at 558-59 (collecting cases and arguing “non-medical employees certified in CPR remain laymen and should have discretion in deciding when to utilize the procedure.”). Defendants attempt to distinguish Southland in that there, unlike here, there was a clear and unequivocal request by the son of the victim to the store employee to call the police; this factual difference is not dispositive. (ECF No. 14-1, at 9). The request to the store clerk in Southland went to proving the clerk was on notice of the danger to a business invitee, and not 13 Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 14 of 17 to the question inaction. of the reasonableness of his subsequent Other courts have construed Southland in this way. See e.g. Estate of Short ex rel. Short v. Brookville Crossing 4060 LLC, 972 N.E.2d 897, 906 (Ind. 2012) (distinguishing the employee’s lack of notice from other cases, including Southland, wherein the “peril”); business Jackson, employee 128 was F.Supp.2d employee’s on notice 307, knowledge of 312-13 of the a patron’s (similarly highlighting the danger in Southland). Here, the Amended Complaint specifically alleges how Defendants were on notice of Mr. Boyd’s emergency even in the absence of such a request. (ECF No. 12, ¶ 37). On the question of breach, the Amended Complaint focuses on the twenty-minute period of possible inaction from when Mr. Boyd first experienced cardiac arrest to when law enforcement first arrived to assess the scene and contact emergency assistance. (ECF No. 12, ¶ 25). Defendants argue that Plaintiff’s allegations and conclusions in the Amended complaint seem to conflate the initial arrival of law enforcement after twenty minutes and their call to emergency personnel with Defendants’ own response to the emergency. No. 12, ¶¶ 25-26). (ECF No. 14, at 9; see also ECF Plaintiff responds that emergency responders arrived within eight minutes of the eventual call and thus a [more] prompt call would have provided Mr. Boyd with emergency services at least twelve minutes earlier than produced by their 14 Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 15 of 17 inaction. (ECF No. 15, at 8). The Amended Complaint does not state who “Officer Proctor” was, why he was the first responder on the scene, or whether Defendants summoned him. It is silent on any action taken by Defendants at all, other than to keep bystanders away. The permitted inference is that Defendants did not timely summon appropriate aid. It may be that discovery will reveal what action Defendants took, and when, to summon assistance, and the matter can again be examined on summary judgment. At that time, the entirety of the circumstances can be assessed to determine whether there is a dispute of material fact as to whether Defendants breached their duty. For now, Plaintiff sufficiently alleges a breach of the duty Defendants owed Mr. Boyd as a business invitee. Plaintiff also provides sufficient facts to plead that this breach was the proximate cause of his death, despite Defendants’ claim to the contrary. (See ECF No. 14, at 10). “To be a proximate cause for an injury, the negligence must be (1) a cause in fact, and (2) a legally cognizable cause.” Pittway Corp. v. Collins, 409 Md. 218, 243 (2009). Showing cause-in- fact conduct requires a produced an injury. showing that Defendants’ actually There are two tests, the “but-for test” and the “substantial factor” test. As described in State v. Exxon Mobil Corp., 406 F.Supp.3d 420, 453 (D.Md. 2019): 15 Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 16 of 17 Under the but-for test, the requisite causation exists when the injury would not have occurred but for the defendant’s conduct. Pittway, 409 Md. at 244, 973 A.2d at 786-87 (citing Peterson [v. Underwood, 258 Md. 9, 16 (1970)]. The [but-for] test applies in cases where only one negligent act is at issue. Id. at 244, 973 A.2d at 786. The Maryland Court of Appeals has also adopted the substantial factor [test] set forth in the Restatement (Second) of Torts (1965). Pittway, 409 Md. at 244, 973 A.2d at 787 (citing Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 208-09, 604 A.2d 445, 459 (1992). Under the substantial factor test, the requisite causation may be found if it is “‘more likely than not’” that the defendant’s conduct was a substantial factor in producing the plaintiff’s injuries. Copsey [v. Park, 453 Md. 141, 164 (2017)] (quoting Pittway, 409 Md. at 244, 973 A.2d at 787); accord Balbos, 326 Md. at 209, 604 A.2d at 459. This test applies when two or more independent acts bring about an injury. Pittway, 409 Md. at 244, 973 A.2d at 787. The amended complaint alleges that Decedent’s heart stopped and his brain was deprived of oxygen for an extended period of time due to Defendants’ breaches properly, he would not have died. that Defendants’ actions and that, had they acted The complaint also alleges “directly or proximately caused profound health consequences . . . resulting in conscious pain and suffering and a slow and painful death.” 28-31). Defendants contend that insufficient to plead causation. sufficient to give Defendants survives a [Fed.R.Civ.P.] Manchanda v. Hays Worldwide, these 12(b)(6) 16 allegations are While “threadbare, this is notice LLC, (ECF No. 12, ¶¶ of the motion 2014 WL claim to and thus dismiss.” 7239095, at *4 Case 8:19-cv-03020-DKC Document 17 Filed 08/17/20 Page 17 of 17 (E.D.Va. Dec. 17, 2014). While the actual response time by Defendants taking is in dispute, their alleged twenty-minute inaction as true, Plaintiff has raised at least the possibility that Defendants’ inaction was not only the but-for cause of Mr. Boyd’s death, in that more prompt medical attention would have saved his life, but that such inaction, in its alleged unreasonableness, properly states a legally cognizable cause of death. Given such questions remain open ones, dismissal at this stage would be improper and Defendants’ third basis for its motion is denied. IV. Conclusion For the foregoing reasons, the motion to dismiss filed by Defendants will be granted in part and denied in part. separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 17 A

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.