Jefferson v. Kroger Limited Partnership I et al

Filing 16

MEMORANDUM OPINION. Signed by Magistrate Judge David J. Novak on 11/03/2014. (tjoh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

SHARON B. JEFFERSON,
Plaintiff,

Civil Action No. 3:14cvl56 (DJN)

V.

KROGER LIMITED

PARTNERSHIP I et al..
Defendants.

MEMORANDUM OPINION

In this case, the Court must determine whether Defendant negligently caused Plaintiffs
injuries by allowing a dangerous condition to exist at the entryway to its store, and by failing to

warn Plaintiff of the danger posed by that condition. The Court must also determine whether

Plaintiff was contributorily negligent. This matter comes before the Court by consent pursuant
to 28 U.S.C. § 636(c)(1) on Defendants' Motion for Summary Judgment (ECF No. 10). For the
reasons that follow, the Court GRANTS Defendants' Motion (ECF No. 10).
I.

FACTUAL BACKGROUND

Sharon Jefferson ("Plaintiff) brings this action against Kroger Limited Partnership I and
the Kroger Company (collectively "Defendants"), alleging negligence in relation to Plaintiffs

fall at Defendants' store. (Defs.' Mem. in Supp. of Mot. for Summ. J. ("Defs.' Mem.") (ECF
No. 11) at 1; PL's Opp'n to Mot. for Summ. J. ("PL's Opp'n") (ECF No. 14) at 1.) The parties
do not dispute the facts of this case. (PL's Opp'n at 1.)

On May 4, 2011, Plaintiffwent to the Kroger store located at 4816 South Laburnum

Avenue in Richmond, Virginia. (Jefferson Dep. (ECF No. 11-1)' 31:4-6, Apr. 30,2014.) After
parking, Plaintiff approached the store and saw that it was under renovation. (Jefferson Dep.
33:7-22.) Plaintiff had visited this store location approximately once per month over the

previous five to ten years, and had been there "one [other] time" during the renovation.
(Jefferson Dep. 32:25-33:2.) As she walked towards the store, Plaintiff saw that the entrance on
the left side of the store was blocked off, so she approached the automatic door to the right.
(Jefferson Dep. 34:14-35:7.) Plaintiff had used the right-side door to enter and exit the store on
previous occasions, but had not done so since the renovations began. (Jefferson Dep. 35:837:25.)

On the date in question. Plaintiff wore sandals with "chunky heel[s]" that were
approximately two to three inches high. (Jefferson Dep. 38:11-39:12.) As she walked through
the doorway to enter the store, "something caught and/or grabbed [her] foot and [she] fell flat

into the store." (Jefferson Dep. 34:20-24,42:20.) As a result of the fall, Plaintiff experienced
bruising and swelling in her knees and toes, as well as pain in her shoulders, hands, knees and
back. (Jefferson Dep. 55:17-20, 78:12-16, 79:20-80:5.) Before she fell. Plaintiff did not look

down, did not see a groove in the ground and did not feel anything unusual. (Jefferson Dep.
48:25-49:7, 43:9-16,48:20-24.)

After she fell. Plaintiff returned to the doorway area with the store manager. (Jefferson
Dep. 43:15-16.) At that point, she noticed a "little groove" in the sidewalk located just outside of
the store entrance, right next to the metal plate at the base of the automatic doors. (Jefferson

Dep. 43:1-16, 62:10-63:2.) This was the first time that Plaintiff noticed the groove, which she

'

Defendants attached the full deposition in five parts, encompassing ECF Nos. 11-1

through 11-5.
2

described as being approximately a half-inch deep and approximately a quarter-inch wide.
(Jefferson Dep. 43:5-16, 44:1-46:24.) The ground on either side of the groove was "pretty
even," and it ran the length of the door. (Jefferson Dep. 45:1-6,46:22-23.)
Plaintiff concluded that she fell as a result of catching her shoe in the groove near the

automatic door. (Jefferson Dep. 48:16-19, 49:8-10, 58:19-23.) She reached this conclusion

based on the fact that her "toes were torn up" from her fall. (Jefferson Dep. 48:18-19.) Plaintiff
stated that the only differentiating aspect of this groove in comparison to any other concrete
expansion joint was that it was deep enough to catch her shoe. (Jefferson Dep. 63:14-20.)

Nothing obstructed Plaintiffs view as she approached the store entrance from the parking lot,
and Plaintiff stated that she could have seen the groove had she been looking. (Jefferson Dep.
64:2-10, 63:3-6.) When she revisited the area with the store manager, however. Plaintiff
observed a silver "metal flange" at the base of the door that was so close to the groove that it
made it difficult to see the groove clearly. (Jefferson Dep. 62:17-64:25.) Plaintiff"estimated that

the edge of this metal flange was less than a quarter of an inch away from the groove. (Jefferson
Dep. 62:24-63:2.) According to Plaintiff, she saw this flange before she fell, but it essentially
disguised the groove in the concrete. (Jefferson Dep. 64:18-65:2.)

Defendants contend that Plaintiff "does not know why the 'little groove' was there on the
date of the incident, how it got to be there, or how long it had been there prior to her fall."
(Defs.' Mem. at 3.) Plaintiff responds that the groove in the concrete appears to have been filled
in at one point in time, but was unfilled to a depth of approximately a half of an inch on the date

of the incident. (PL's Opp'n at 2.) Based on a picture taken by Plaintiffs son the day after she
fell, Plaintiff alleges that "it is apparent this condition did not just happen overnight, but over the
long term as the original fill material in the crevice settled or otherwise deteriorated." (Pl.'s

Opp'n at 2.) Defendant rejects Plaintiffs claim that Defendants' employees would have noticed
the "developing crevice in the days or weeks prior to the plaintiffs fall" as unsubstantiated.

(Defs.' Reply Mem. in Supp. of Their Mot. for Summ. J. ("Defs.' Reply") (ECF No. 15) at 6
(internal quotation marks omitted).)
Plaintiff filed this action in Henrico County Circuit Court, and Defendants timely
removed the case to this Court. (Defs.' Mem. at 2.) On September 19, 2014, Defendants moved

for summary judgment, contending that Plaintifffailed to establish a primafacie case for
negligence and that Plaintiffwas contributorily negligent as a matter of law. (Defs.' Mem. at 2.)
II.

STANDARD OF REVIEW

Summary judgment is appropriate where "the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled tojudgment as a matter of law." Fed.
R. Civ. P. 56(a). The relevant inquiry at the summary judgment stage analyzes "whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law." Anderson

Liberty Lobby, Inc., 477

U.S. 242, 251-52 (1986). When reviewing a motion for summary judgment, the Court views the

facts in the light most favorable to the non-moving party. Id. at 255. The Court cannot weigh

the evidence; it must simply determine whether a genuine issue exists for trial. Greater Ball.
Ctr. For Pregnancy Concerns v. Baltimore, 721 F.3d 264,283 (4th Cir. 2013) (quoting Liberty
Lobby. Inc., 477 U.S. at 249).

Once the movant properly makes and supports a motion for summary judgment, the
burden shifts to the opposing party to show that a genuine dispute of material fact exists.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The mere

existence of some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the standard requires "that there be no
genuine issue of material fact." Liberty Lobby, Inc., All U.S. at 247. A genuine issue of
material fact arises only when the evidence, viewed in the light most favorable to the non-

moving party, sufficiently allows a reasonablejury to return a verdict in that party's favor. Id. at
248. To defeat an otherwise properly-supported motion for summary judgment, the non-moving

party must rely on more than conclusory allegations, "mere speculation," the "building of one
inference upon another," the "mere existence of a scintilla of evidence" or the appearance of
some "metaphysical doubt" concerning a material fact. Lewis v. City ofVa. Beach Sheriffs
Office, 409 F. Supp. 2d 696, 704 (E.D. Va. 2006) (citations omitted). The Court must enter

summary judgment against a party who, "after adequate time for discovery and upon motion,...
fails to make a showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett,
All U.S. 317, 322 (1986). "In such a situation, there can be 'no genuine issue as to any material

fact,' since a complete failure of proof concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial." Id. at 323.
III.

DISCUSSION

The parties do not dispute that Plaintiff fell at the entryway to Defendants' store on the

date in question. They do, however, dispute whether Plaintiff has established a primafacie case
for negligence. Specifically, the parties disagree as to whether the groove in the concrete
constituted a dangerous condition, whether Defendants knew or should have known about the

groove and whether the groove was the proximate cause of Plaintiffs injuries. Additionally, the
parties disagree as to whether Plaintiff was contributorily negligent. The Court considers these
issues in turn.

A. Prima Fade Negligence Claim

A court exercising diversity jurisdiction applies the substantive law of the forum state.

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-79 (1938).^ In Virginia, to recover on a negligence
claim. Plaintiff must establish: (1) that Defendants owed Plaintiff a duty, (2) that Defendants

breached that duty, and (3) that this breach proximately caused Plaintiff to suffer damages.
Atrium Unit Owners Ass 'n v. King, 266 Va. 288, 293, 585 S.E.2d 545, 548 (2003) (citing Fox v.
Custis, 236 Va. 69, 73, 372 S.E.2d 373, 375 (1988); Trimyer v. Norfolk Tallow Co., 192 Va. 776,

780,66 S.E.2d 441,443 (1951)). Under well-established Virginia law, "store owners must
maintain reasonably safe facilities for their invitees' visits." Fultz v. Delhaize Amer., Inc., 278
Va. 84, 88, 677 S.E.2d 272, 274 (2009). Though a storeowner is not an insurer of an invitee's

safety while on the premises, id at 89,677 S.E.2d at 274 (citing Knight v. Moore, 179 Va. 139,
145, 18 S.E.2d 266, 269 (1942)), the storeowner "owes an invitee the duly of using ordinary care
to maintain its premises in a reasonably safe condition and to warn ... of any hidden dangers."
Volpe V. City ofLexington, 281 Va. 630, 636, 708 S.E.2d 824, 827 (2011) (quotingv.

NationsBank, N.A., 256 Va. 344,346, 504 S.E.2d 365, 366 (1998)) (internal quotation marks

omitted). To fulfill this duty, "a storeowner must give notice or warning of an unsafe condition
which is known to him and is unknown to the invitee." Fultz, 278 Va. at 89, 677 S.E.2d at 274

(quoting Knight, 179 Va. at 146,18 S.E.2d at 269) (internal quotation marks omitted). But,

"such notice is not required where the dangerous condition is open and obvious, and is patent to
a reasonable person exercising ordinary care for his own safety." Id. (quoting Knight, 179 Va. at

^

The Court exercises diversity jurisdiction in this matter pursuant to 28 U.S.C. § 1332,

because the parties are diverse and the amount in controversy exceeds $75,000. Plaintiff is a
citizen of Virginia, and Defendants are citizens of Ohio with their principal place of business in
Ohio. (Joint Notice of Removal (ECF No. l)^1|l-3.) Plaintiff seeks $150,000 in damages.
(Compl. (ECF No. 1-1).)

146, 18 S.E.2d at 269) (internal quotation marks omitted). Therefore, in addition to proving
duty, breach and causation, the plaintiff in a premises liability case must also "prove the
existence of an unsafe or dangerous condition on the premises." Hodge v. Wal-Mart Stores. Inc.,

360 F.3d 446,451-52 (4th Cir. 2004) (citing Kendrick v. Vaz, Inc., 244 Va. 380, 385,421 S.E.2d
447,450(1992)).

1. Plaintiff Fails to Establish that the Groove Constituted a Dangerous
Condition.

The parties do not dispute that Defendants owed a duty to Plaintiff. (Defs.' Mem. at 5.)
The first issue that the Court must consider then is whether Plaintiff has carried her burden of

establishing that the groove constituted a dangerous condition of which Defendants had notice,
such that Defendants' failure to warn Plaintiff of the condition constituted a breach of duty.

"To recover against the owner, an injured invitee must show that the owner had

knowledge, actual or constructive, that a defect existed and that such defect created an unsafe
condition." Roll 'R' Way Rinks, Inc. v. Smith, 218 Va. 321, 327,237 S.E.2d 157, 161 (1977).
"A plaintiff must show why and how the incident happened.... [l]f the cause of the event is left

to conjecture, guess, or random judgment, the plaintiff cannot recover." Town of West Point v.
Evans, 224 Va. 625, 628, 299 S.E.2d 349, 351 (1983) (citing Sneed v. Sneed, 219 Va. 15,17, 244

S.E.2d 754, 755 (1978)); Hodge, 360 F.3d at 451 (quoting Evans, 224 Va. at 628,299 S.E.2d at
351). To prove that the groove created a danger. Plaintiff must establish that Defendants'
conduct deviated from the ordinary standard of care. Morrison-Knudsen, 254 Va. at 173,492
S.E.2d at 124. "[T]he mere happening of an accident, without more, is not proof of negligence."
Griffin v. Wal-Mart Stores, 1995 U.S. Dist. LEXIS at 6507, at *6 (E.D. Va. 1995).

Virginia courts have typically recognized that certain conditions are "unsafe as a matter
of course, such as a wet or slippery substance on the floor of the premises, or the presence of an

unexpected object lying on the floor." Parker v. CBOCS East, Inc., 2010 WL 316986, at *4
(W.D. Va. 2010) (citing cases describing examples of unsafe floor or ground conditions). A

concrete expansion or movement joint, such as the groove at issue in this case, does not fall into
one of these established categories. In fact, "it is well-established under Virginia law that the
failure to correct an irregularity in a sidewalk surface is not a violation of the duty of ordinary
care where, as here, the irregularity is an inch or less and not known to be a hazard." Jones v.
Wash. Metro. Area Transit Auth., 378 F. Supp. 2d 718, 720-21 (E.D. Va. 2005) (citing Med. Or.

Hosp. V. Sharpless, 229 Va. 496, 331 S.E.2d 405 (1985) (finding half-inch depression in concrete
expansion joint did not establish unsafe condition); City ofNewport News v. Anderson, 216 Va.
791, 223 S.E.2d 869 (1976) (finding depression of concrete expansion joint measuring 3 inches
long, 4 inches wide and 1 inch deep did not constitute dangerous condition); Childress v. City of

Richmond, 181 Va. 267,24 S.E.2d 419 (1943) (finding hole in pavement measuring 15 inches

long, 8 inches wide and 15/8"' inch deep insufficient to establish negligence); City ofRoanoke v.
Sutherland, 159 Va. 749, 167 S.E.2d 243 (1933) (finding that concrete sidewalk block elevated 1

1/8'*' inches above sidewalk surface was not unsafe); City ofRichmond v. Schonberger, 111 Va.
168, 68 S.E. 284 (1910) (finding that stone piece protruding 2 inches above otherwise level street

crossing was not dangerous condition giving rise to negligence action)).
Plaintiff has not adduced sufficient evidence to merit an exception from this general rule.
Indeed, Plaintiff essentially relies on her own statements and conclusions to establish the

groove's dangerousness. Plaintiff provided photocopies of a picture showing the front portion of
the sandals that she was wearing when she fell and of pictures that her son took of the groove on

the day after she fell. (Jefferson Dep. Exs. I, 3,4 (ECF. No. 11-5) at 15, 17-18.) But these
pictures are of limited utility, because Plaintiff offered no pictures showing the groove's

8

appearance at any point in time before the incident, nor did she produce pictures of any
comparable concrete expansion joints. Plaintiff did not produce an expert opinion on whether
the groove was defective in its design or installation, or whether it deviated from the relevant
industry standards. See Morrison-Knudsen, at 254 Va. at 173, 492 S.E.2d at 124 (discussing

witness testimony regarding industry standards). Nor did Plaintiff produce statements from lay
witnesses to describe the groove's alleged dangerousness based on their own observations. Roll
'R' WayRinks, Inc., 218 Va. at 324-27, 237 S.E.2d at 160-161 (prior accidents established notice
of dangerous defect); Anderson, 216 Va. at 792, 223 S.E.2d at 870 (lay witness testimony based

on personal observations). Plaintiff is not required to offer any of these particular types of
evidence; however, her failure to produce any evidence beyond her testimony provides the Court
with no basis upon which to disagree with Defendants' contention that Plaintiff has failed to
meet her burden of production with regard to the existence of a dangerous condition.
Even Plaintiffs statements, taken as a whole, offer little support for her conclusion that

the groove constituted a dangerous condition. Plaintiff estimated that the groove was
approximately a half-inch deep and a quarter-inch across, and that it ran the length of the door.
(Jefferson Dep. 43:5-8,44:1-46:24.) The ground on either side of the groove was "pretty even."

(Jefferson Dep. 45:1-6.) Plaintiff described the inner portion of the groove — the part between
the vertical edges of the concrete slabs — as "jagged," but explained that it was not jagged at the
surface level. (Jefferson Dep. 45:14-22.) She drew a picture to illustrate her meaning. (Jefferson

Dep. Ex. 2 (ECF No. 11-5) at 16.) But when asked how this particular concrete joint differed
from any other concrete joint that she had seen. Plaintiff responded that the only difference was

that "[i]t was deep enough to catch my shoe." (Jefferson Dep. 63:14-22.)

Viewing the evidence in the light most favorable to Plaintiff and accepting, for the
moment, her contentions about the groove. Plaintiff would nevertheless fall well short of

establishing that the dimensions of the groove rendered it unsafe. "Not every defect in a
sidewalk, even though it may have caused the injury sued for, is actionable." Anderson, 216 Va.
at 793, 223 S.E.2d at 870 (citing City ofRichmond v. Courtney, 32 Gratt. (73 Va.) 792, 798

(1880); City ofRichmond v. Rose, 127 Va. 772, 780, 102 S.E. 561, 564 (1920)). Plaintiff has

produced no evidence to show that this groove differed in any respect from a typical concrete
expansion joint beyond the fact that she believes it caused her to fall. Thus, as in City of
Newport News v. Anderson, "[e]ven when viewed in the light most favorable to the plaintiff, the
evidence here discloses nothing more than a defect so slight that it would not endanger travel in

the ordinary modes by a person exercising reasonable care for his own safety." 216 Va. at 793,
223 S.E.2d at 870. Because Plaintiff failed to produce evidence sufficient to establish that the

groove was a dangerous condition, the Court must grant summary judgment for Defendants. See

Celotex, All U.S. at 322 ("[T]he plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial.").
2.

Plaintiff Failed to Show That Defendants Had Actual or Constructive Notice

Even if Plaintiff produced sufficient evidence to raise a jury question as to whether the
groove constituted a dangerous condition, summary judgment would nonetheless be appropriate,
because Plaintiff failed to produce any evidence that Defendants had actual or constructive

notice of the condition. "In premises liability cases, the plaintiff must introduce evidence of the
responsible person's actual or constructive knowledge of a defective condition on the premises to

10

establish a primafacie case of negligence." Grim v. Rahe, Inc., 246 Va. 239,242,434 S.E.2d

888, 889 (1993) (citing Roll 'R' Way Rinks, 218 Va. at 327, 237 S.E.2d at 161). Plaintiff does
not contend that Defendants had actual notice of the condition, and did not produce any evidence

suggesting otherwise.^ Thus, the Court must consider whether Plaintiff established that
Defendants' had constructive knowledge of the allegedly dangerous groove.

"[C]onstructive knowledge or notice of a defective condition of a premise ... may be

shown 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 242, 434 S.E.2d at 890
(citing Colonial Stores v. Pulley, 203 Va. 535, 537, 125 S.E.2d 188, 190 (1962)). Though the
amount of time considered "sufficient" may vary case to case, "if the evidence fails to show

when a defect occurred on the premises, the plaintiff has not made out a primafacie case." Id.
(citing Winn-Dixie Stores, Inc. v. Parker, 240 Va. 180, 184, 396 S.E.2d 649, 651 (1990)).

Plaintiff fails to present any evidence whatsoever to show that Defendants were aware of
the groove in the concrete or the alleged danger it created. In lieu of evidence, Plaintiff offers a

chain of unsupported conclusions. Plaintiff argues that the groove's filling eroded over time
leaving behind a dangerous crevice, but offers no evidence to support this contention. (PL's
Opp'n at 5.) As noted previously. Plaintiff produced no evidence regarding the groove's
condition before May 4,2011, including whether the groove ever contained more filling than it

did on the day that Plaintiff fell. In fact, Plaintiff testified during her deposition that she had
never noticed the groove before the day that she fell and that she had "no clue how it got there."
(Jefferson Dep. 47:7-48:11, 107:7-8, 108:23-109:5.) Building on her unsupported assertion that

^

During Plaintiffs deposition, counsel for Defendants asked Plaintiff the following: "Do

you have any specific knowledge as to whether or not anybody from Kroger was aware that that
groove was in the condition it was in on the date of your incident?" Plaintiff responded "[n]o, I
don't." (Jefferson Dep. 109:6-10.)
11

the original fill material dissipated, Plaintiff claims that "the loss of fill material in the crevice
was plainly not a condition that appeared over night." (PL's Opp'n at 5.) Plaintiff uses this
unsubstantiated conclusion to support her assertion that Defendants' "own managers or other

employees would ... have noticed the developing crevice sometime during the days and weeks

before Plaintiffs fall."'' (PL's Opp'n at 5.) This claim is belied by Plaintiff's admission that she
does not know how long the groove was there before her fall. (Jefferson Dep. 47:13-15, 108:23109:5.) Plaintiff offers nothing more than these assertions in support of her claim.

In a slip-and-fall case involving an empty soda bottle, the Virginia Supreme Court set
aside a jury verdict for the plaintiff on the grounds that "[t]here was no evidence from which the
jury could determine how, when, or by whom the bottle was placed on the floor. The verdict,

therefore, could have been reached only as the result of surmise, speculation and conjecture."
Colonial Stores, Inc., 203 Va. at 537, 125 S.E.2d at 190. Similariy, here Plaintiff offers no
evidentiary basis from which to conclude when the alleged dangerous condition arose and,
therefore, cannot establish that the condition existed long enough for a jury to conclude that

Defendants were aware of it. See Hodge, 360 F.3d at 454 ("Even assuming that [plaintiff]
established that an unsafe condition existed in the display when she arrived, she failed to provide
sufficient evidence of how much earlier the condition arose, and thus cannot establish that the

condition was in existence for a time sufficiently long for a jury to conclude that Wal-Mart was

negligent in addressing it."). Thus, Plaintiff has not made out a primafacie case of negligence.
See, e.g.. Grim, 246 Va. at 242-43,434 S.E.2d at 890 (quoting Winn-Dixie Stores, 240 Va. at

'*

Plaintiffs contention that Defendants were on notice because the groove was in front of

the only door available for use on the date in question is unsupported by any evidence beyond
Plaintiffs conclusory statement and, therefore, is insufficient to create a jury question.
12

184, 396 S.E.2d at 651) ("Hence, if the evidence fails to show when a defect occurred on the

premises, the plaintiff has not made out a primafacie case.")Simply put. Plaintiffs own opinions and conclusions are no substitute for evidence of
how and when the allegedly dangerous crevice developed. Plaintiffs reliance on her own
statements amounts to mere speculation and conclusory allegations. Thus, she fails to carry her
burden on summary judgment. See lewis, 409 F. Supp. 2d at 704 (plaintiff must rely on more
than "conclusory allegations" to defeat a motion for summary judgment).
3.

Plaintiff Fails to Establish Proximate Causation.

Assuming, arguendo, that Plaintiff established that Defendants breached their duty of
care by failing to repair the groove or warn Plaintiff about the latent danger, Plaintiff must also
prove that Defendants' breach proximately caused Plaintiffs injury. "Negligence is actionable
only when it constitutes a proximate cause of the accident." Roll 'R' Way Rinks, Inc., 218 Va. at

329,237 S.E.2d at 162. "The general rule in Virginia is that a plaintiff must, in order to establish
a defendant's negligence, prove why and how the incident happened; if the cause of the event is

left to conjecture, guess, or random judgment, the plaintiff cannot recover." Hodge, 360 F.3d at
451 (quoting Evans, 224 Va. at 628,299 S.E.2d at 351) (internal quotation marks omitted). The
Supreme Court of Virginia has stated that "[n]egligence cannot be presumed from the mere

happening of an accident.... The evidence produced must prove more than a probability of
negligence and any inferences therefrom must be based on facts, not presumptions." Hoffner v.
Kreh, 227 Va. 48, 52, 313 S.E.2d 656, 659 (1984) (quoting Weddle v. Draper, 204 Va. 319, 322,
130 S.E.2d 462, 465 (1963)) (internal quotation marks omitted).

Plaintiff produces no evidence to indicate that the groove was the proximate cause of her
fall beyond her mere conjecture. During her deposition, Plaintiff stated that as she walked

13

through the doorway of Defendants' store, "[s]omething grabbed my foot and I just fell.... I
didn't trip, I fell, I just fell face flat." (Jefferson Dep. 42:20, 42:22-23.) At another point during
that same deposition, however. Plaintiff acknowledged that she did not feel anything before she
fell, did not see where her foot was when she fell and did not even see the groove until she

returned to the entrance area with a manager at some point after she fell. (Jefferson Dep. at

48:20-49:7, 58:15-23.) During her deposition, counsel for Defendants asked Plaintiff the
following: "Is it fair to say then that you assume this groove is what caused you to fall?"
Plaintiff responded "yes." (Jefferson Dep. 49:8-9.) Plaintiffs bare assumption as to the cause of
her fall, without more, is insufficient as a matter of law to establish proximate causation. See

Hodge, 360 F.3d at 451 (quoting Evans, 224 Va. at 628, 299 S.E.2d at 351) ("[I]f the cause of the
event is left to conjecture, guess, or random judgment, the plaintiff cannot recover."); Hoffner,
111 Va. at 52, 313 S.E.2d at 659 (quoting Weddle, 204 Va. at 322, 130 S.E.2d at 465)

("Negligence cannot be presumed from the mere happening of an accident.... The evidence
produced must prove more than a probability of negligence and any inferences therefrom must

be based on facts, not presumptions."). Therefore, Plaintiff fails to set forth a sufficient showing
to establish an essential element of her case and the Court must enter summary judgment for

Defendants on this basis as well.^ Celoiex, All U.S. at 322-23.
IV.

CONCLUSION

For the reasons set forth above, the Court finds that Plaintiff failed to present sufficient
evidence to establish that a dangerous condition existed, that Defendants had actual or
constructive notice of the condition and that the condition proximately caused Plaintiffs

damages. Accordingly, Plaintiffs' negligence claim fails. Therefore, the Court GRANTS

^

Because the Court finds no negligence by Defendants on multiple grounds, the Court

need not address Defendants' assertion of contributory negligence.
14

Defendants' Motion for Summary Judgment (ECF No. 10).

An appropriate Order shall issue.
Let the Clerk file this Memorandum Opinion electronically and notify all counsel
accordingly.

David J. Novak

United States Magistrate Judge
Richmond, Virginia
Dated: Novembers. 2014

15