Loomis v. Kroger Limited Partnership I

Filing 16

ORDER Granting 11 Motion for Summary Judgment. The Court GRANTS Kroger's Motion for Summary Judgment. Signed by Magistrate Judge Douglas E. Miller and filed on 6/17/15. Copies distributed to all parties 6/17/15. (ldab, )

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

AMANDA L. LOOMIS,
Plaintiff,
v.

Action No. 2:14cv536

KROGER LIMITED PARTNERSHIP I,
t/a KROGER STORE NUMBER 537,
Defendant.

OPINION AND ORDER

This personal injury claim is before the Court on Defendant's Motion for Summary
Judgment. (ECF No. 11). Plaintiff, Amanda L. Loomis ("Loomis"), injured her back after

slipping in water next to a dairy freezer in a Virginia Beach grocery store operated by Defendant,
Kroger Limited Partnership I ("Kroger"). Because the undisputed facts establish that Loomis

cannot meet her burden to prove Kroger's negligence, summary judgment is mandated under
Rule 56 and entered accordingly.
I.

FINDINGS OF UNDISPUTED FACT

In October, 2012, Loomis was shopping for frozen pizza at a Virginia Beach Kroger store

located at 5237 Providence Road.1 Although it was not her regular grocery store, she was
familiar with the arrangement and knew where the frozen pizzas were located. Arriving at the

relevant aisle, she immediately noticed a yellow wet floor cone deployed between the pizza
freezer and an adjacent ice cream freezer. (Loomis Dep., ECF No. 12-2 at 8, 23). Loomis was
not pushing a shopping cart; she "|j]ust had a purse." Id. at 2. Loomis had previously worked in

1The store was owned, operated, and/or managed by the defendant Kroger. See (Compl. ^ 1,ECF No. 1
at 1); (Answer If 1, ECF No. 3 at 1); Fed. R. Civ. P. 8(b)(6).
1

a convenience store and knew the warning cone was deployed to alert customers to water or a

spill. Id. at 24. She testified that another shopper was standing adjacent to the cone, between it
and the pizza freezer. Id. at 8, 19. After determining that she could not pass on the side
occupied by the other shopper, Loomis, who was wearing rubber-soled flip flops, walked to the
left of the cone, between it and the adjacent ice cream freezer. Id. at 8, 18-19.

Loomis testified that she was walking "a little bit more cautious, just because of the fact I
saw the sign," id. at 25, but she still did not see any water.
So I stepped around the sign to the left. Again, assuming where the sign was, was
where the water was. And I never saw it on the floor. And I stepped. My foot
went out from underneath of me and I put my arm up immediately on the cooler
to catch myself. And when I did, my hand slid down the cooler, because the
whole outside of the cooler was soak and wet. [sic] . . .
So I go to get back up and brace myself, put my hands to get up again, and I slide
back down again . . . And at that point in time it was embarrassment that kicked
over . . . and I got up and I brushed myself off and I walked over and I grabbed
my pizza.
Id at 8-9.

Kroger's counsel asked why Loomis did not choose another path after seeing one side of
the aisle blocked by another shopper. She stated, "honestly, because I was right there and I
thought it would have taken twice as long to walk around the coolers to get to here than it would

have been just a straight line to it." (Loomis Dep., ECF No. 12-3 at 3). Because the other

shopper was facing the pizza cooler, Loomis went to the opposite side of the cone, passing,
according to her testimony, within "about a foot and a half of the cone. (Loomis Dep. ECF No.
12-2 at 20). After retrieving her pizza, Loomis noted another customer walking right through the
same area, and Loomis stopped to warn her that there was water on the floor. (Loomis Dep.,
ECF No. 12-3 at 1).

Loomis reported her fall to a store manager who took photos and prepared an incident
report. (Loomis Dep., ECF No. 12-2 at 9-10). According to Loomis, the manager then stated
"they knew that they had been having issues with these coolers because they were getting ready
to [ ] go through a whole store reset because of them." Id at 10. Other than this comment
regarding "issues" with the coolers Loomis was unable to testify about who placed the cone,
when it had been placed or whether it had been moved by any person prior to her fall. (ECF No.
12-3 at 10). She did state that the Kroger manager who completed the report told her that the
cone had previously been placed closer to the dairy freezer.

But neither she nor the store

manager had any information regarding who moved the cone, when it had been moved, or how
long prior to Loomis' fall it had been moved. Id. at 11.
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 requires the Court to grant a motion for summary

judgment if "the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-24 (1986). "A material fact is one 'that might affect the outcome of

the suit under the governing law.' A disputed fact presents a genuine issue 'if the evidence is
such that a reasonable jury could return a verdict for the non-moving party.'"

Spriggs v.

Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). If there is no genuine issue as to any material fact, "[t]he
moving party is 'entitled to a judgment as a matter of law' because the nonmoving party has
failed to make a sufficient showing on an essential element of her case with respect to which she
" Because the store manager - construing the facts in the light most favorable to Loomis - was an agent or
employee of Kroger and making a statement within the scope of his employment relationship, the
statements ascribed to him by Loomis are not hearsay. See Fed. R. Evid. 801(d)(2)(D). See generally
Fed. R. Civ. P. 56(c)(2) (allowing for objections to inadmissible evidence on the summary judgment
record).
3

has the burden of proof." Celotex Corp.. 477 U.S. at 323.

The party seeking summary judgment has the initial burden of informing the Court of the
basis of its motion and identifying materials in the record it believes demonstrate the absence of
a genuine dispute of material fact. Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 322-25.

When the moving party has met its burden to show that the evidence is insufficient to support the
nonmoving party's case, the burden shifts to the nonmoving party to present specific facts
demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986).

In considering a motion for summary judgment, "the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility determinations or

weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see
Anderson, 477 U.S. at 255.

"[A]t the summary judgment stage the judge's function is not

himself to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial." Anderson, 477 U.S. at 249.
III.

ANALYSIS

Federal courts sitting in diversity cases apply the forum state's substantive law. 28
U.S.C. § 1652; Erie R.R. Co. v. Tompkins. 304 U.S. 64, 78 (1938). In Virginia, "[t]he rules
applicable to slip-and-fall cases are well settled." Winn-Dixie Stores. Inc. v. Parker, 396 S.E.2d

649, 650 (Va. 1990). A store owner owes its customers a duty to exercise ordinary care in
maintaining the premises. Id. This duty requires the store owner to
have the premises in a reasonably safe condition for [their] visit; to remove,

within a reasonable time, foreign objects from its floors which it may have placed
there or which it knew, or should have known, that other persons had placed
there; to warn [customers] of the unsafe condition if it was unknown to [them],
but was, or should have been, known to the [store owner].

Id (quoting Colonial Stores v. Pulley, 125 S.E.2d 188, 190 (Va. 1962)). However, "[t]he owner
of premises is not an insurer of his invitee's safety." Franconia Associates v. Clark, 463 S.E.2d
670, 672 (Va. 1995). "The invitee must look out for her own safety by avoiding 'open and
obvious' dangers." Newcomb v. Food Lion, Inc., 94 F.3d 642, 1996 WL 469902, at *1 (4th Cir.
1996) (unpublished) (citing Rocky Mount Shopping Ctr. Assocs. v. Steagall, 369 S.E.2d 193,
194 (Va. 1998)).

To establish a prima facie case in a premises liability action, "the plaintiff must introduce
evidence of the responsible person's actual or constructive knowledge of a defective condition
on the premises . . . ." Grim v. Rahe, Inc., 434 S.E.2d 888, 889 (Va. 1993). To establish

constructive notice, the plaintiff must "show by evidence that the defect was noticeable and had
existed for a sufficient length of time to charge its possessor with notice of its defective
condition." Id at 890 (citing Pulley, 125 S.E.2d at 190). "[I]f the evidence fails to show when a
defect occurs on the premises, the plaintiff has not made out a prima facie case [of negligence]."

Id. (citing Parker, 396 S.E.2d at 651). In sum, the defendant has constructive notice "[i]f an
ordinarily prudent person, given the facts and circumstances [the defendant] knew or should have

known, could have foreseen the risk of danger resulting from such circumstances." Parker, 396
S.E.2d at 650 (quoting Memco Stores, Inc. v. Yeatman. 348 S.E.2d 228, 231 (Va. 1986)).

"Failing to avoid 'open and obvious' dangers may render the plaintiff contributorily
negligent." Newcomb, 1996 WL 469902, at *1. In Virginia, contributory negligence occurs

when the plaintiff "fail[s] to act as a reasonable person would have acted for his own safety
under the circumstances." Id (quoting Artrip v. E.E. Berry Equip. Co.. 397 S.E.2d 821, 824 (Va.

1990)). "If the plaintiff was contributorily negligent, then Virginia law bars that plaintiff from
recovering in a negligence action if the plaintiffs contributory negligence was a proximate cause

of his injury." Baweia v. Roach. 24 F. App'x 198, 199 (4th Cir. 2002) (unpublished) (citing
Litchford v. Hancock. 352 S.E.2d 335, 337 (Va. 1987)). Although contributory negligence and

open and obvious dangers are normally jury questions, clear cases may establish contributory
negligence as a matter of law. See, e.g., Artrip, 397 S.E.2d at 823 ("Only when reasonable
minds could not differ does the issue become one of law to be decided by a court.").

Kroger argues that the undisputed facts would prevent any reasonable juror from finding

it negligent. Because the store adequately warned of the defect which she claimed caused her to
fall, Kroger argues she cannot meet her burden to prove its negligence. Alternatively, Kroger
contends that Loomis was contributorily negligent as a matter of law.

Loomis argues that

material facts underlying Kroger's motion remain in dispute. She contends that the adequacy of
the warning provided, and her exercise of ordinary care are both issues for the jury. After
reviewing Loomis' deposition in its entirety, the Court agrees with Kroger and grants summary
judgment.

First, it appears Kroger concedes, for purposes of this motion, that Loomis has presented
sufficient evidence for the jury to conclude that it had actual or constructive notice of the defect

which allegedly caused her fall. Her statement that the manager tending to her after the fall
admitted that the company had "issues" with the freezers, and Loomis' observation of water

accumulating near the freezer after her fall are both likely sufficient to create a jury issue on
Kroger's notice.

See Douglas v. Kroger Ltd. P'ship. I, No. 4:13cv97, 2014 WL 504717 at, *3-4

(E.D. Va. Feb. 7, 2014) (holding notice of roof leak adequate to preclude summary judgment for
constructive notice of an indoor puddle that accumulated during a heavy rain). The evidence

also establishes that the defect alleged, clear water on a tile floor, was not open and obvious as a
matter of law. See, e.g., Wiley v. Wegman's Mkts.. Inc.. No. I:14cv235, 2014 WL 7359717, at

*4 (E.D. Va. Dec. 24, 2014) (assuming the spill was not open obvious for purposes of analyzing

the duty to warn due to factual disputes). Accordingly, Kroger's notice triggered a duty under
Virginia law "to give an effective and timely warning of the existence of [the] hazardous
condition." Shiflett v. Timberlake, 137 S.E.2d 908, 911 (Va. 1964). Even in cases of defects

which are not open and obvious, a property owner discharges its duty if it adequately warns its
customers of the unsafe condition.

Eure v. Kroger Ltd. P'hip. I, No. 7:llcvl90, 2012 WL

896347, at *6 (W.D. Va. Mar. 15, 2012). To hold otherwise would render the store owner an

insurer against unavoidable accidents, which Virginia law does not require. Wiley, 2014 WL
7359717, at *7.

Here, the undisputed facts establish that Kroger displayed a warning cone on the aisle
where Loomis fell within feet of the hazard which allegedly caused her fall. Moreover, Loomis
testified that she saw the warning cone before falling, and understood that it meant that the floor
could be wet. Indeed, she professed to be exercising caution as she chose to walk adjacent to the

cone. (Loomis Dep., ECF No. 12-2 at 8, 18-19, 25).
In her brief opposing summary judgment, Loomis argues that, notwithstanding her

cautious approach after seeing it, the cone was not an adequate warning, presumably because it

was not closer to the freezer where her fall occurred. But her argument is contradicted by her

testimony. Loomis described the cone as being in the middle of the aisle, with another shopper
between it and the freezer opposite. Id at 8. Understanding that the cone warned of a wet floor,

she still chose to walk on the opposite side passing directly between it and the dairy freezer - a
space she characterized as "probably one and a half feet." Id at 20.

In briefing, Loomis' counsel contends that this fact is disputed, because he objected
during Loomis' deposition, warning Kroger's counsel that she would only be testifying to

approximate distances. Indeed, counsel stated during the deposition that he wanted to "put an

objection on the record," clarifying that his client would "do the best she can from recollection,
but she's not doing precise measurements." (Loomis Dep., ECF No. 12-2 at 11). In briefing on
this motion, counsel reiterates that throughout the deposition Loomis referenced only

"approximate and imprecise measurements." (PL's Br., ECF No. 14, at 4). He notes specifically
that Loomis qualified her estimate regarding the distance from the cone, stating that it was

"probably about a foot and a half." Id. (emphasis in orginal).
The exact purpose of this objection, and counsel's later qualification, is not clear. If it
was intended to prevent Kroger from relying on Loomis' testimony, counsel has articulated no

legal basis to sustain it. Moreover, Loomis' testimony is the only evidence on this subject in the

summary judgment record. See De Cecco v. University of South Carolina, 918 F. Supp. 2d 471,
510 & nn.46-47 (D. S.C. 2013) (citing Barwick v. Celotex Corp.. 736 F.2d 946, 960 (4th Cir.

1984) (rejecting plaintiffs invitation to "disregard her deposition testimony," in favor of
contrary allegations in the complaint, describing an incident of alleged harassment and noting
that it "was the only source of evidence as to the alleged events."). Nevertheless, Loomis is
entitled to reasonable inferences in her favor.

E.g.. Reeves, 530 U.S. at 150. She actually

testified that she passed between the cone and the freezer, a space she described as "probably a

foot and a half." She did describe the other shopper some distance from the freezer, suggesting
that the space was somewhat larger than eighteen inches. But even accepting this alternate
description of the warning, and viewing the facts in favor of Loomis, she was no more than two
feet from the cone when she fell. No other witness testified that the cone was nearer or farther

from her fall. And, "a party against whom summary judgment is sought cannot create a jury

issue by identifying discrepancies in his own account of the facts." Spriggs v. Diamond Auto

8

Glass. 242 F.3d 179, 185 n.7 (4th Cir. 2001). As a result, even accounting for counsel's attempt

to qualify her testimony, and accepting the evidence in the light most favorable to her, the

undisputed facts establish that Loomis fell immediately adjacent to the warning cone deployed
by Kroger to warn customers of the precise defect which she claims caused her fall. Moreover,
Loomis acknowledged seeing the warning, and understanding its purpose was to warn customers

the nearby floor could be wet. See Wiley. 2014 WL 7359717, at *7 (finding yellow warning
cone in the immediate vicinity of the spill adequate to discharge duty even though plaintiff did

not see it prior to her fall); Eure, 2012 WL 896347 at *7 (same).

Loomis primarily relies on this Court's decision in Douglas v. Kroger. Ltd. P'ship. I, No.
4:13cv97, 2014 WL 504717 (E.D. Va. Feb. 7, 2014) to support her argument that the adequacy

of Kroger's warning is for the jury to determine. But the facts in Douglas were materially
different.

Douglas also involved a shopper injured after slipping in water which had

accumulated on the floor. The fall occurred near a wet floor sign which had been deployed to
warn customers of water which may have been tracked into the store during a heavy rain. Unlike

this case, however, the puddle which caused Douglas' fall was clearly visible on a store
surveillance video and in contemporaneous photographs. This evidence suggested that the water
which caused Douglas' fall was accumulating in a different area as a result of a roof leak. The

video, and other photographic evidence, also established that the area around the cone was not
wet, while the area where Douglas fell had puddles of water. Id at *7. As a result, the Court

found that the undisputed facts did not establish Kroger adequately discharged its duty to warn,
because a reasonable juror could find that the warning displayed was unrelated to the leaking
roof and only coincidentally in the same vicinity.

In this case there is no dispute that the cone deployed in the aisle between the freezers
was intended to warn shoppers of the possibility of a delect - dripping freezers - which was not

open and obvious. More importantly, Loomis testified that she saw the warning, understood its
purpose, and proceeded cautiously as a result. Despite her caution she fell. But the happening of
an accident does not establish negligence. Waters v. Holloman. 222 S.E.2d 549, 552 (Va. 1976).
And Loomis has failed to identify any dispute of fact which would suggest Kroger failed in its

duty to warn.

To do so would require evidence sufficient to "create fair doubt; wholly

speculative assertions will not suffice." Ross v. Communications Satellite Corp., 759 F.2d 355,
364 (4th Cir. 1985), abrogated on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228
(1989). Because no reasonable juror could conclude that Kroger failed to warn Loomis of the
defect alleged, she has not met her burden to show that there is a genuine issue for trial as to

Kroger's negligence. As a result, her fall is not compensable under Virginia law. Accordingly,
it is not necessary to determine whether she was contributorily negligent as a matter of law.
Kroger's Motion for Summary Judgment is granted.
IV.

CONCLUSION

For the reasons set forth above, the Court GRANTS Kroger's Motion for Summary
Judgment.

Douglas E. MiiierV^*

United States Magistrate Judge

DOUGLAS E. MILLER
UNITED STATES MAGISTRATE JUDGE

Norfolk, Virginia

June )T2015

10