Young v. Wawa Incorporated
Filing
22
MEMORANDUM OPINION. Signed by Magistrate Judge David J. Novak on 3/30/15. (tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
KELLY YOUNG,
Plaintiff,
v.
WAWA INCORPORATED,
Defendant.
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Civil No. 3:14cv600(DJN)
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MEMORANDUM OPINION
This matter comes before the Court by consent pursuant to 28 U.S.C. § 636(c)(1) on
Defendant's Motion for Summary Judgment (ECF No. 13). In resolving this case, the Court must
determine whether a store negligently caused an invitee's injuries by breaching its duty in failing to
warn the invitee of the danger posed by debris on the store's premises. Because the Court finds that
Plaintiff has failed to establish that Defendant had actual or constructive knowledge of the alleged
defect, the Court GRANTS Defendant's Motion (ECF No. 13).
I. FACTUAL BACKGROUND
Kelly Young ("Plaintiff) brings this negligence action against WaWa, Inc. ("Defendant"),
alleging negligence related to Plaintiff's fall in the parking lot of Defendant's store on June 15,
2012. (Compl. (ECF No. 1-1) UK 6, 11-14.) The parties do not dispute the material facts of this
case.1
Pursuant to Local Rule 56(B), each brief in support of a motion for summary judgment must
contain a section listing all undisputed material facts. E.D. Va. Loc. R. 56(B). Briefs in response to
such motions must contain a section listing those facts "as to which it is contended that there exists
a genuine issue necessary to be litigated." Id. In deciding a motion for summary judgment, "the
Court may assume that facts identified by the moving party in its listing of material facts are
admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to
the motion." Id. Defendant's brief contained such a section of undisputed facts. (Def.'s Br. in
On June 15, 2012, Plaintiff slipped and fell in Defendant's parking lot. (Br. in Supp. of Pl.'s
Resp. to the Mot. for Summ. J. ("Pl.'s Br.") (ECF No. 19) at 1; Def.'s Br. in Supp. of Mot. for
Summ. J. ("Def.'s Br.") (ECF No. 14) at 1.) Plaintiff alleges that she slipped and fell on debris that
had been present for a lengthy period of time and that Defendant knew or should have known about
the danger posed by such debris. (Pl.'s Br. at 1-2.)
At the time of the incident, one of Defendant's on-duty employees, Tony Branch
("Branch"), prepared an incident report. (Aff. of Tony Branch ("Branch Aff.") (ECF No. 14-1)
KK 2-3.) Plaintiff reported to Branch that Plaintiff slipped on a lemon wedge. (Branch Aff. K3.) At
the time of the incident, Branch had no personal knowledge of a lemon wedge in the parking lot.
(Branch Aff. K3.) In preparing the incident report, Branch spoke to other employees on duty at that
time. (Branch Aff. K3.) To Branch's knowledge, no other employee knew anything about a lemon
wedge in the parking lot at the time of the incident. (Branch Aff. K3.)
The manager of Defendant's store, Lynda Nazzaro ("Nazzaro"), was on duty that day as
well. (Aff. of Lynda Nazzaro ("Nazzaro Aff.") (ECF No. 14-2) KK 1-2.) Nazzaro also had no
knowledge of any lemon wedge in the parking lot at the time of the incident. (Nazzaro Aff. K3.) In
investigating the incident, Nazzaro asked other employees regarding their knowledge of the
presence of any lemon wedge in the parking lot. (Nazzaro Aff. K3.) Based on her conversations
with those other employees, as far as Nazzaro knew, no other employee was aware of any lemon
wedge in the parking lot before Plaintiff fell. (Nazzaro Aff. K3.) Further, at the time of the
incident, Defendant neither sold full lemons or lemon wedges, nor offered lemon wedges as
condiments for food or beverages. (Nazzaro Aff. K4.)
Supp. of Mot. for Summ. J. (ECF No. 14) at 1-2.) Citing to her complaint, Plaintiff responded by
listing certain facts in dispute. (Br. in Supp. of Pl.'s Resp. to the Mot. for Summ. J. (ECF No. 19) at
1-2.) Where Plaintiff did not dispute such facts listed by Defendant, the Court accepts those facts as
undisputed.
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Defendant now moves for summary judgment, arguing that Plaintiffs claim fails as a matter
of law, because no evidence exists that suggests that Defendant had actual or constructive
knowledge of a dangerous condition — specifically, a lemon wedge — that allegedly caused
Plaintiffs fall. (Def.'s Br. at 3-6.) Plaintiff, relying on her Complaint, counters that a genuine issue
of material fact exists as to whether Defendant knew or should have known about the dangerous
condition such that this Court should deny Defendant's Motion. (Pl.'s Br. at 1-2.)
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 to judgment 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 v. Liberty Lobby, Inc., 471 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 nonmoving party. Id. at 255. The Court cannot weigh the evidence; it must simply
determine whether a genuine issue exists for trial. Greater Bait. Or. for Pregnancy Concerns v.
Baltimore, 721 F.3d 264, 283 (4th Cir. 2013) (quoting Anderson, 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."
Anderson, 411 U.S. at 248. A genuine issue of material fact arises only when the evidence, viewed
in the light most favorable to the nonmoving party, sufficiently allows a reasonablejury to return a
verdict in that party's favor. Id.
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To defeat an otherwise properly supported motion for summary judgment, the nonmoving
party "must rely on more than conclusory allegations, mere speculation, the building ofone
inference upon another, the mere existence ofa scintilla of evidence, orthe appearance ofsome
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) (internal quotation marks omitted). "[A]
party opposing a properly supported motion for summary judgment may not rest upon the mere
allegations or denials ofhis pleading, but... must set forth specific facts showing that there is a
genuine issue for trial." Anderson, 477 U.S. at 248-49 (alteration in original) (internal quotation
marks 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 ofproof at
trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In such a situation, there can be 'no
genuine issue as to any material fact,' since acomplete failure ofproof concerning an essential
element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 32223.
III. DISCUSSION
The parties do not dispute that Plaintiff fell in the parking lot of Defendant's store on the
date in question. They do dispute, however, whether Plaintiff has established aprimafacie case for
negligence. Specifically, the parties disagree as to whether Defendant had actual orconstructive
knowledge of the alleged defect.
A. Prima Facie Negligence Claim
A federal court exercising diversity jurisdiction applies the substantive law that the forum
state would apply. Erie R.R. v. Tompkins, 304 U.S. 64, 78-79 (1938).2 Virginia applies the
substantive law of the place of the alleged harm. See McMillan v. McMillan, 219 Va. 1127, 1128,
253 S.E.2d 662, 663 (1979) (citing Maryland v. Coard, 175 Va. 571, 580-81, 9 S.E.2d 454, 458
(1940)) ("[T]he settled rule in Virginia is that the substantive rights of the parties in a multistate tort
action governed by the law of the place of the wrong."). In this case, Plaintiffalleges that the harm
occurred in Henrico County, Virginia. (Compl. K3.) Accordingly, the Court will apply the
substantive law of Virginia.
In Virginia, to recover on a negligence claim, Plaintiffmust establish that: (1) Defendant
owed Plaintiff a duty, (2) Defendant breached that duty, and (3) this breach proximately caused
Plaintiff to suffer damages. Altrium 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)). "[W]ell-established Virginia law
requires storeowners to 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 duty 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)
(alteration in original) (quoting Amos v. NationsBank, N.A., 256 Va. 344, 346, 504 S.E.2d 365, 366
2
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 while Defendant is a citizen of Pennsylvania and New Jersey. (Notice of Removal (ECF
No. 1) KK 3-4.) Plaintiff seeks $500,000 in damages. (Notice of Removal K 5.)
(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 his 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). Therefore, the plaintiff in a premises liability case must also provide sufficient
evidence that the defendant had actual or constructive knowledge of the defective condition and the
danger that the condition created. Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 452 (4th Cir.
2004).
B. Plaintiff Fails to Establish that Defendant Had Actual or Constructive Knowledge of the
Alleged Defect.3
Defendant argues that it had neither actual nor constructive knowledge of the alleged defect.
(Def.'s Br. at 3-6.) Further, Defendant asserts that Plaintiff fails to meet her burden of showing that
any material fact remains in dispute, because Plaintiff merely relies on the allegations in her
Complaint to contest Defendant's argument. (Def.'s Rebuttal Br. in Supp. of Mot. for Summ. J.
(ECF No. 20) at 1-2.) Accordingly, Defendant argues that it did not breach its duty by failing to
warn Plaintiff of the allegedly dangerous condition. Plaintiff, relying on her Complaint, argues that
Defendants either knew or, because of the length of time that the alleged debris remained on the
ground, should have known of the alleged defect, such that Defendant breached its duty to make the
property reasonably safe. (PL's Br. at 1.) Because Plaintiff alleges that Defendant knew or should
have known of the alleged defect, Plaintiff asserts that a genuine issue of material fact exists such
that the Court should deny Defendant's motion. (Pl.'s Br. at 2.)
"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
Although the parties do not specifically contest whether Defendant owed any duty to
Plaintiff, their arguments make clear — and the Court assumes for the purpose of deciding
Defendant's motion — that Defendant, as a storeowner, owed a duty to Plaintiff, as an invitee.
Accordingly, the Court discusses whether Defendant breached such duty.
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*R' Way Rinks, Inc. v. Smith, 218 Va. 321, 327, 237 S.E.2d 157, 161 (1977). Where the defendant
lacks actual knowledge of the defect, a plaintiff can establish constructive knowledge by showing
that the condition was noticeable and had existed for enough time to charge the store owner with
notice of the hazardous condition. Harrison v. The Kroger Co., 737 F. Supp. 2d 554, 558 (W.D.
Va. 2010) (citing Grim v. Rahe, Inc., 246 Va. 239, 242, 434 S.E.2d 888, 890 (1993)).
Though the amount of time considered sufficient to establish constructive knowledge may
vary from case to case, "if the evidence fails to show when a defect occurred on the premises, the
plaintiffhas not made out aprimafacie case." Grim, 246 Va. at 242, 434 S.E.2d at 890 (citing
Winn-Dixie Stores, Inc. v. Parker, 240 Va. 180, 184, 396 S.E.2d 649, 651 (1990)). Virginia courts
have repeatedly held that where there is no evidence indicating the length of time that a defective
condition existed, a plaintiff has not established that the defendant had constructive knowledge.
See, e.g., Winn-Dixie Stores, Inc., 240 Va. at 184, 396 S.E.2d at 651 (holding that plaintiff failed to
make out primafacie case of negligence by failing to establish that defendant had actual or
constructive knowledge of bean on floor); Colonial Stores Inc. v. Pulley, 203 Va. 535, 537-38, 125
S.E.2d 188, 190 (1962) ("There is no evidence in this case that the defendant knew of the presence
of the bottle on the floor, nor is there any showing of the length of time it may have been there. It is
just as logical to assume that it was placed upon the floor an instant before the plaintiff struck it as it
is to infer that it had been there long enough that the defendant should, in the exercise of reasonable
care, have known about it."). 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 538, 125 S.E.2d at 190.
Here, Defendant provided two sworn affidavits in support of its contention that Defendant
had neither actual nor constructive knowledge of the alleged defect — the lemon wedge. Branch,
the individual who completed the incident report, stated that neither he nor, to his knowledge, any
other employee knew of the lemon wedge in the parking lot. (Branch Aff. K3.) Additionally,
Defendant's manager who was on duty that day had no knowledge of the lemon wedge. (Nazzaro
Aff. K3.) When Nazzaro spoke with otheremployees upon learning of the incident, none of the
otheremployees reported knowledge of the lemon wedge. (Nazzaro Aff. K3.) Further, Defendant
neither sold nor offered as a side any lemons or lemon wedges. (Nazzaro Aff. K4.)
In responding to Defendant, Plaintiff fails to identify a dispute of a material fact such that
she may survive summary judgment. Citing only to her Complaint, Plaintiffresponds to
Defendant's assertions by simply stating that Defendant had actual or constructive knowledge of the
alleged defect. (Pl.'s Br. at 1-2.) Plaintiff offers no evidence past her conclusory allegations to
establish that Defendant had knowledge of the lemon wedge and fails to provide any basis from
which to conclude when the lemon wedge appeared.4 Without such evidence, the Court cannot
infer that Defendant knew or should have known about the lemon wedge. See Colonial Stores Inc.,
203 Va. at 537-38, 125 S.E.2d at 190 ("There is no evidence in this case that the defendant knew of
the presence of the bottle on the floor, nor is there any showing of the length of time it may have
been there. It is just as logical to assume that it was placed upon the floor an instant before the
plaintiff struck it as it is to infer that it had been there long enough that the defendant should, in the
Plaintiff had the opportunity to participate in discovery and offer evidence opposing
Defendant's motion, but she failed to do so. For example, on October 15, 2014, Defendant
propounded interrogatories on Plaintiff regarding the factual basis for Defendant's knowledge of the
alleged lemon wedge; however, as of the date of Defendant's filing for summary judgment, Plaintiff
had failed to respond. (Def.'s Br. at 2.) Further, Plaintiffhad the opportunity to testify at her
deposition, but she failed to appear at the noticed date and time. (Dep. of Kelly Young (ECF No.
14-4) 4:4-13 (noting that counsel for Defendant and counsel forPlaintiffwere present for deposition
but Plaintiff was not).) Defendant listed both the failure to respond and failure to appear as
undisputed facts, and Plaintiffresponded to neither allegation.
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exercise of reasonable care, have known about it."). By relying merely on her pleadings, Plaintiff
has failed to make a showing sufficient to establish an essential element of her claim upon which
she bears the burden at trial. See Celolex Corp., 477 U.S. at 323 (noting that no genuine issue of
material fact exists where there is complete lack of proof regarding essential element of nonmoving
party's case); Anderson, 477 U.S. at 247-48 (noting that party opposing properly supported motion
for summary judgment may not rely merely upon pleadings); see also Lewis, 409 F. Supp. 2d at 704
(noting that nonmovant must rely on more than "conclusory allegations" to defeat a motion for
summary judgment). Therefore, Plaintiff fails to meet her burden in showing that a genuine dispute
of material fact exists such that she may survive summary judgment. See Matsushita Elec. Indus.
Co., 475 U.S. at 586-87.
Because no dispute of material fact exists as to Defendant's lack of actual or constructive
knowledge, Plaintiff fails to establish an essential element of her case. Therefore, the Court must
enter summary judgment for Defendant.
IV. CONCLUSION
For the reasons set forth above, the Court finds that Plaintiff has failed to establish an
essential element of herprimafacie case, namely that Defendant had actual or constructive
knowledge of the allegedly dangerous condition. Therefore, the Court GRANTS Defendant's
Motion for Summary Judgment (ECF No. 13). An appropriate Order shall issue.
It is so ORDERED.
/s/
David J. Novak
^y
United States Magistrate Judge
Richmond, Virginia
Date: March 30. 2015
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