Flaherty v. Legum & Norman Realty, Inc.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-1507

RICHARD FLAHERTY, Individually, as Executor of the Estate of
Monica Flaherty, deceased, and on behalf of his minor
children,

Plaintiff - Appellant,

v.

LEGUM AND NORMAN REALTY, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:05-cv-01492-GBL)

Argued: May 14, 2008 Decided: June 11, 2008

Before MICHAEL and DUNCAN, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Jeremy T. Monthy, HOGAN & HARTSON, LLP, Washington, D.C.,
for Appellant. Garry Boehlert, WINSTON & STRAWN, LLP, Washington,
D.C., for Appellee. ON BRIEF: Robert B. Cave, Jake M. Shields,
HOGAN & HARTSON, LLP, Washington, D.C., for Appellant. Thomas M.
Buchanan, David C. Romm, WINSTON & STRAWN, LLP, Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Richard Flaherty (Flaherty), as executor of the estate of

his wife, Monica Flaherty (Mrs. Flaherty), and on behalf of himself

and his minor children, filed this wrongful death action against

Legum & Norman Realty Inc., manager of the Braemar Towers

Condominiums, a condominium complex in Ocean City, Maryland. The

Flahertys owned a unit (or condo) at the complex. Mrs. Flaherty

stayed at the condo from December 27-29, 2004. On January 7, 2005,

she was admitted into the hospital and diagnosed with Legionnaire’s

disease. She died three days later. Flaherty alleges that Mrs.

Flaherty’s Legionnaire’s disease and resulting death was caused by

the negligence of Legum & Norman in maintaining the common water

system at the condominium complex. After a period of discovery,

Legum & Norman made a motion for summary judgment, which was

granted by the district court. Flaherty appeals, and we affirm.

I.

Legionnaires’ disease is primarily caused by Legionella

pneumophila, a type of bacteria commonly found in natural fresh

water habitats and in human-made water systems. The bacteria pose

no threat in the low concentrations that occur naturally, but they

are hazardous when they propagate at high concentrations in human-

made water systems. Transmission to humans can occur, among other

ways, through aerosolized water droplets in a shower or hot tub.

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The condominium complex here, which has a common water system

serving all units, tested positive for Legionella when inspected in

late January 2005, after Mrs. Flaherty’s death. Flaherty alleges

that Mrs. Flaherty was exposed to Legionella at the family condo

and that Legum & Norman was negligent in failing to prevent

Legionella from propagating in the water system at the condominium

complex.

The district court granted summary judgment to Legum &

Norman on the ordinary negligence claim because Flaherty did not

establish the standard of care that a property manager must

exercise in maintaining a common water system in a large

residential complex. The court also concluded that the doctrine of

res ipsa loquitur did not apply because Flaherty could not

establish that Mrs. Flaherty’s illness would not have occurred in

the absence of Legum & Norman’s negligence. Finally, the

magistrate judge (1) denied Flaherty’s motion to take further

deposition testimony from a Legum & Norman representative and (2)

granted Legum & Norman’s motion for a protective order that barred

the additional deposition. The district court granted summary

judgment without considering Flaherty’s application for district

court review of the magistrate judge’s discovery order. Flaherty

appeals these issues.

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 II.

In considering Flaherty’s ordinary negligence claim in

the summary judgment proceedings, the district court held that

“[t]he standard of care that Defendant Legum & Norman, a

professional management company, must exercise in maintaining [the

condominium complex’s] water system is beyond the knowledge and

experience of the average layman.” J.A. 1244. As a result, the

district court determined that the standard of care would have to

be established through a source such as expert testimony, industry

standards, or an applicable ordinance or statute. See, e.g., Cigna

Prop. and Cas. Cos. v. Zeitler, 730 A.2d 248, 258 (Md. Ct. Spec.

App. 1999). Because Flaherty did not meet his burden with respect

to establishing the standard of care, the district court concluded

that he could not prove a claim of ordinary negligence against

Legum & Norman.

The district court also analyzed Flaherty’s negligence

claim under the doctrine of res ipsa loquitur. In order to create

an inference of negligence under this doctrine, a plaintiff must

prove “(1) a casualty of a kind that does not ordinarily occur

absent negligence, (2) that was caused by an instrumentality

exclusively in the defendant’s control, and (3) that was not caused

by an act or omission of the plaintiff.” Holzhauer v. Saks & Co.,

697 A.2d 89, 93 (Md. 1997). The district court rejected Flaherty’s

claim under res ipsa loquitur because he did not proffer evidence

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to establish that the Legionella would ordinarily have been present

only through negligence.

After determining that there was no basis upon which

Flaherty could establish a negligence claim, the district court

awarded summary judgment to Legum & Norman. We affirm the summary

judgment determination substantially on the reasoning of the

district court. See Flaherty v. Legum & Norman Realty, Inc., No.

1:05-1492 (E.D. Va. Jan. 4, 2007) (mem. order).

III.

Flaherty also argues that the district court abused its

discretion by granting summary judgment without reviewing the

magistrate judge’s discovery order, which Flaherty challenged.

Before Legum & Norman filed its motion for summary judgment,

Flaherty moved to compel further deposition testimony by a

representative of Legum & Norman, and the company sought a

protective order. The magistrate judge denied the motion to compel

and issued the protective order. Flaherty sought district court

review of the magistrate judge’s order, arguing that a further

deposition would provide additional evidence to establish that

Legum & Norman violated its duty of care. Federal Rule of Civil

Procedure 56(f) requires that “summary judgment be refused where

the nonmoving party has not had the opportunity to discover

information that is essential to his opposition.” Nguyen v. CNA

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Corp., 44 F.3d 234, 242 (4th Cir. 1995) (quotation marks and

citation omitted). However, in his opposition to Legum & Norman’s

motion for summary judgment, Flaherty did not assert that he had

not obtained sufficient discovery from Legum & Norman. Rather,

Flaherty contended that he “ha[d] adduced in discovery and pre-

discovery investigations, and will present to the jury, more than

sufficient factual evidence to support [his] claims of negligence,

gross negligence, and punitive damages.” Opposition to Defendant’s

Motion for Summary Judgment at 1, Flaherty v. Legum & Norman

Realty, Inc., No. 1:05-1492 (E.D. Va. Aug. 4, 2006). Further,

summary judgment was granted because Flaherty did not make the

showing necessary to establish the relevant standard of care.

Flaherty offers nothing to suggest that further deposition

testimony from Legum & Norman would have assisted in establishing

the standard of care for maintaining a water system in a large

condominium (or residential) complex. Therefore, Flaherty was not

prejudiced because the district court did not rule on his

application for review of the magistrate judge’s discovery order,

and there was no abuse of discretion on the part of the district

court.

* * *

The judgment of the district court is

AFFIRMED.

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