Estep v. Xanterra Kingsmill, LLC

Filing 27

OPINION AND ORDER entered and filed 3/3/17: This matter is before the Court on a motion for summary judgment filed by Xanterra Kingsmill, LLC ("Defendant" or"Kingsmill"). ECF No. 21 . After examination of the briefs and record, the Court finds that a hearing is unnecessary, as the facts and legal arguments are adequately presented, and the decisional process would not be aided significantly by oral argument. Fed. R. Civ. P. 78(b); E.D. Va. Loc. Civ. R. 7(J). As outlined in this Opinion and Order, Defendant's 21 Motion for Summary Judgment is DENIED. Counsel are INSTRUCTED to schedule with the Magistrate Judge the resumption of a settlement conference prior to the trial date. (See Order and Foot Notes for Specifics) (Signed by District Judge Mark S. Davis on 3/3/17). Copies provided as directed 3/3/17.(ecav, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OP VIRGINIA

Newport News Division

CHRISTINE VAUGHAN ESTEP,

Plaintiff,
V.

Civil No.

XANTERRA KINGSHILL,

4;16cv89

LLC,

Defendant.

OPINION AND ORDER

This

matter

judgment

filed

"Kingsmill") .
record,

facts

the

and

decisional
argument.

is

before

by

Xanterra

ECF No.
Court

legal

Civ.

P.

on a

Kingsmill,

that

would

Court

motion

LLC

for

summary

("Defendant"

or

After examination of the briefs and

arguments

Fed. R.
I.

21.

finds

process

the

a

hearing

are
not

is

adequately
be

aided

unnecessary,

significantly

78(b); E.D. Va. Loc. Civ. R.

the

and

presented,

as

the

by

oral

7(J).

FACTUAL AND PROCEDURAL BACKGROUND

The undisputed facts before the Court establish as follows:^
(1)

that

Kingsmill's

hosts

{"Plaintiff")

12-week

resort

long

participated

premises

tennis

in

such

include

leagues.

tennis

a

tennis

Christine

leagues

center

Estep

during

the

spring, summer, and fall of 2013.

^ Such facts are assumed as true solely for the purposes of summary
judgment.

(2)

A path made

of

asphalt,

and edged with green grass,

leads to the Kingsmill tennis courts.
9:45
the

a.m..

the

fell

while walking along

the path

toward

courts.

(3)
less

Plaintiff

On September 12, 2013, at

The below photograph depicts

than 30 minutes

grassy

patch

the path,

after Plaintiff's fall.

located

on

the

left

side

and was

Plaintiff

of

the

indicated by the blue arrow in the photograph below

taken

fell

path

on

as

(the blue

arrow was added by the Court for illustration purposes only) .

(4)

The green grassy area depicted in the photographs is

approximately 16 inches long and extends approximately 14 inches
into the darker colored paved asphalt path.

(5)

While walking along the left side of the paved path.

Plaintiff stepped into the grassy area,
grassy area,

causing her to

fall

or partially into the

cuid sustain injuries

to her

foot and lower leg.
(6)

At

the

time

of

her

fall.

Plaintiff

was

alone

on

the

paved path amd was not distracted by her phone or other sources.

(7)
paved

Many people,

path

on

prior

including Plaintiff,
occasions

and

have safely used the

Defendant

has

not

had

any

complaints about the grassy area extending into the paved path,
nor

is

Defendant

aware

of

anyone

else

being

injured

at

this

location.

(8)

It is undisputed that there was approximately five feet

of open paved path to the right of

was

no

opposing

foot

traffic

or

the grassy area,

other

reason

that

and there

Plaintiff

could not have moved to the right in order to stay on the paved
surface.

(9)

do

not

While Plaintiff made statements in her deposition that

appear

to

contest

the

fact

that

the

grassy

area

was

visible, she contends that it did not look like a trip hazard or
anything

obvious

to

avoid.

Plaintiff

asserts

that

she

was

paying attention while walking and that she would have avoided
obvious hazards.

(10)
she

that

Plaintiff
discovered

a

imprecise

and

there

is

testified that
hole

it was

vinder

disputed

the

only after her fall

grassy

evidence

on

area.

such

Although

issue,

the

hole, purportedly hidden by long grass, was as deep as eighteen
inches.^
Predicated on the above facts.

Defendant filed the instant

motion seeking summary judgment based only on the affirmative
defense of contributory negligence.

Plaintiff filed a brief in

opposition, asserting that a jury must decide whether Plaintiff
was negligent.
is

thus

The question for the Court on summary judgment

limited

to

determining

whether,

on

these

facts,

Plaintiff was contributorily negligent as a matter of

law.^

Based on the arguments presented by the parties, the resolution
of

such question turns primarily on whether the grassy patch,

and/or

the

hole

beneath

the

grassy

patch,

was

an

"open

and

obvious" defect/danger.

^ A witness for the defense testified that there was a "slight depression"
under the grass, estimated to be "less than two or three inches" deep.
ECF No. 24-4, at 21-22, 25.
Accordingly, while the depth is disputed, the
fact that that the ground covered by the grassy area was not at the same
level as the paved path is not in dispute.

^ Defendant expressly states in its filings that its motion "does not
address the vicibility of Plaintiff's claims of negligence and negligence
per se," instead opting to rely, for purposes of summary judgment only,
solely on the defense of contributory negligence.

ECF No. 22, at 19.

II.

The

Federal

STANDARD OF REVIEW

Rules

of

Civil

Procedure

provide

that

a

district court "shall grant summary judgment if [a] 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."

Civ.

Office of the Courts,

P.

56(a);

F.3d 562,

N.C.

{4th Cir.

568

Jacobs v.

Admin.

2015).

" [T]he mere

Fed.

existence of

R.
780

some

alleged factual dispute between the parties will not defeat an

otherwise properly supported motion

for

summary

judgment;

the

requirement is that there be no genuine issue of material fact."
Anderson v.

Liberty Lobby,

Inc.,

477 U.S.

242,

247-48

(1986).

A

fact is "material" if it "might affect the outcome of the suit,"
and

a

dispute

is

"genuine"

if

"the

evidence

is

such

that

a

reasoncible jury could return a verdict for the nonmoving party."

Id. at 248; s ^ Jacobs, 780 F.3d at 568.
When

a

affirmative
essential

moving

party

defense,

it

elements

of

"seeks
must

that

Clear Chauinel Commc' ns,

Inc.,

summary

judgment

conclusively

defense."

Ray

673 F.3d 294,

establish

Commc'ns,

299

(citing Celotex Corp. v. Catrett, 477 U.S. 317,

on

331

all

Inc.

(4th Cir.

an

v.

2012)

(1986)).

If

the moving party produces "sufficient evidence in support of its
affirmative

defense,

the

burden

of

production

non-movant to identify facts demonstrating a
trial.

Id.

If

the moving party fails

shifts"

to

the

genuine issue for

to produce sufficient

evidence,

"summary

judgment must be

denied

.

.

. for

the non-

movant is not required to rebut an insufficient showing."

Id.

{citation omitted).

At

the

summary

judgment

phase,

a

district

court

is

not

permitted "to weigh the evidence and determine the truth of the
matter," but must instead "determine whether there is a genuine
issue for trial."

(quoting

Tolan v.

Anderson,

relevant inquiry is

477

Cotton,

U.S.

at

134 S.

Ct.

249).

1861,

1866

(2014)

Accordingly,

"[t]he

'whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so
one-sided

that

one

party

must

Stewart v.

MTR Gaming Grp.,

Cir.

(quoting Anderson,

2014)

such determination,

prevail

Inc.,

581

477 U.S.

as

F.

a

matter

of

App'x 245,

at 251-52) .

law.'"

247

(4th

In making

the Court must consider the record evidence

"'in the light most favorable to the' nonmoving party."

Jacobs,

780 F.3d at 568 (quoting Tolan, 134 S. Ct. at 1866).
III.

DISCUSSION

Pursuant to Virginia substantive law governing the instant

diversity action,'* "[a]n owner of premises owes a duty to its
invitee

(1)

to

use

ordinary

care

to

have

the

premises

in

a

reasonably safe condition for the invitee's use consistent with

the invitation, and (2) to use ordinary care to warn its invitee

* It is undisputed that this Court must "apply Virginia substantive law
consistent with Virginia's lex loci delicti,
wrong."

the law of the place of the

Blair v. Def. Servs., Inc., 386 F.3d 623,

625

(4th Cir. 2004).

of

any

unsafe

condition

that

was

known,

ordinary care should have been known,

or

by

the

use

of

to the owner; except that

the owner has no duty to warn its invitee of an unsafe condition
which

is

open

ordinary care
P^ship,

added)

and

obvious

to

reasonable

for his own safety."

232 Va.

227,

229,

condition

or

person

Fobbs v.

349 S.E.2d 355,

{citations omitted),

obvious

a

exercising

Webb Bldg.

357

(1986)

Ltd.

(emphasis

If a person trips over an "open and

defect"

she

is

"guilty

of

contributory

negligence as a matter of law," unless there is a legally valid
justification for failing to observe the defect.
of

Lynchburq,

Stated

241

Va.

differently,

persons

using

defect,"

and

a

64,

66,

"where

sidewalk

"[w]here

a

S.E.2d

defect

it

there

399

is

is

810

open

and

their

duty

to

no

excuse

Town of Va.

34, 36,

(1952)

240

809,

is

defect one cannot recover."

72 S.E.2d 239,

Scott v. City

for

obvious

the

seeing

the

Starr,

194 Va.

(citation omitted).®

absence of an open and obvious defect/danger,

to

observe

not

Beach v.

(1991).

In the

an invitee

the right to assume that premises are reasonably safe."

"has
Volpe

® Whether a defect/danger is open and obvious and whether a plaintiff was
contributorily negligent are "related" concepts, but they are ''not the
same" because "[t]he open and obvious defense focuses on the hazard
itself; by contrast, a contributory negligence analysis revolves around
the conduct of the plaintiff."
King v. Flinn & Dreffein Eng'g Co., No.
7:09cv410,

2012

WL

3133677,

at

*7

(W.D.

Va.

July

30,

2012).

The

difference in concepts is illustrated by the fact that a plaintiff who is
injured by "an open and obvious dangerous condition" retains the ability
to demonstrate that she was not contributorily negligent
"conditions outside herself which prevented her seeing the
or

which

Delhaize Am.,

condition

Inc.,

added)

would

excuse

278 Va.

(citation omitted).

84,

her

90,

failure

to

observe

677 S.E.2d 272,

275

it."

(2009)

based on
dangerous
Fultz

v.

(emphasis

V.

City

of

{2011);

S,E.2d

Lexington,

Comess

125,

v.

281

Va.

Norfolk

128

(1949)

630,

Gen.

637,

Hosp.,

{indicating

708

189

that

S.E.2d

Va,

an

824,

229,

invitee

827

235,

52

"is

not

required to be on the lookout for dangers not open and obvious")
{citations omitted).

"Ordinarily,
negligence is a

whether a plaintiff is guilty of contributory
jury issue," and such issue "becomes one of law

for resolution by a
differ

166,

about

409

conclusion."

S.E.2d 123,

some evidence
the

the

court only when reasonable minds could not

grassy

that

patch

126

Medlar

{1991).

Here,

arguably calls

was

to

a

v.

Mohsm,

while

242

162,

Plaintiff offers

into question how

pedestrian

Va.

walking

down

"obvious"
the

paved

path,® the primary dispute addressed by the parties' briefs is
whether

the

grassy

beneath the grass,

patch,
was

care.

distracted

or

grassy

patch

hole/depression

duty to avoid i t

Plaintiff

otherwise
itself;

the

an "open and obvious"

such that Plaintiff had a
reasonable

and

does

prevented

rather,

she

summary judgment on the fact that,
grassy patch is deemed to be

not

from

defect or danger

in the exercise of

assert

that

observing

focuses

obscured

her

she

the

was

green

opposition

to

even if the existence of the

"open and obvious" as a

matter of

® Plaintiff's brief cites to both her own deposition testimony and the
testimony of Defendant's employees who indicated that they walked down the
path countless times and never noticed the grassy patch itself, or "never
noticed this irregular edge of the asphalt." ECF No. 24, at 7-8; ECF Nos.
24-2,

24-3.
8

law,

a

reasonable

juror could conclude

"open and obvious"

hole

or

that

there

was

not

an

danger because there was no indication of a

depression

under

the

grassy

area

or

that

such

area

otherwise constituted a trip hazard.

Defendant
that

the

"defect"

Plaintiff

failure

responds
in

negligently

to

position.

stay

to

Plaintiff's
paved

the

argument
was

contributed

on

the

paved

Defendant argues

that

between an open and obvious
obvious hazard/danger.
before

the

positions:

path,
even

Court,
(1)

path

the

to

her

there

obvious,

injury

surface.

by

In

contending
and

that

based

on

her

support

of

its

is no legal distinction

condition/defect and an open and

To place a
parties

take

finer point on the dispute
the

following

conflicting

Plaintiff asserts that she did not step "off" the

but stepped on grass that encroached onto the path,
if

it

was

obvious

that

a

portion of

the path was

and

grass

covered,' she was not negligent, because the grass did not appear
to be a

trip hazard;

and

(2)

Defendant contends that Plaintiff,

absent any reasonable justification,
the path and onto the grass,

voluntarily stepped off of

and because the green grass was an

open and obvious defect in the path,

Plaintiff is contributorily

' Plaintiff made statements in her deposition, some of which are expressly
reproduced in her brief, indicating that while the photographic evidence
does show that there was "some kind of grass on the path," it does not
reveal a hole or depression or even that there was missing asphalt under
the grassy patch because grass/weeds could have been growing over the
paved surface.

ECF No.

24,

at 12-14; EOF No.

24-1.

negligent

as

a

matter

of

law

for

not

avoiding

such

obvious

defect.

After

carefully

drawing reasonable

considering

the

record

evidence,

and

inferences in Plaintiff's favor as required

at the summary judgment stage,

the Court finds

that Defendant

fails to demonstrate that Plaintiff was contributorily negligent

as a matter of law.

Although it is true that much of the record

evidence before the Court is undisputed,
characterization of

factfinder

because

inferences

to

the

be

critical

there
drawn

facts

are

the interpretation and

must be

conflicting,

from

such

reserved for

yet

evidence,

the

reasonable,

and

reasonable

persons may differ as to whether the grassy patch constituted an
"open and obvious" danger/hazard.
Corp.,

194

(reversing

va.

the

572,

lower

573-75,

court's

Compare Crocker v. WTAR Radio
74

S.E.2d

finding

that

51,

the

52-53

{1953)

plaintiff

was

"guilty of contributory negligence as a matter of law" when she
fell

off

a

four

to

six

inch high

split-level

stage

during

a

fashion show because the plaintiff presented evidence suggesting
that

the

matched"

height

was

and "highly polished"

of one level

Steaqall,

difference

floor);

235 Va.

636,

obscured

floors,

by

the

rendering the appearance

with Rocky Mount Shopping Ctr.

637,

"perfectly

369 S.E.2d 193,

194

Assocs.

{1988}

that the plaintiff was contributorily negligent as a

v.

(finding

matter of

law because the evidence established that the plaintiff's fall
10

was caused by a two to three inch deep "obvious depression" in a
parking

lot and

plaintiff
record,

had
"to

that

looked).

convert

question of law."

WL

1743865,

Virginia
659

such defect

at

what

is

is

therefore

normally

Hall v. DLC Mgmt.

*5

Elec.

It

would have

(W.D.

Va.

& Power Co.,

Apr.
204

a

Va.

improper,

on

jury

Corp.,

23,

been seen if

7:llcv298,

2013)

128,

this

question

No.

(citing

the

to

a

2013

Smith v.

132,

129 S.E.2d 655,

conclusion because

reasonable minds

(1963)).
The

Court

reaches

this

could differ as to whether the grassy area was:

(1)

condition

its

that,

contrasting
danger;

or

while

color,
(2)

seemingly

did

not

exercising

identified as a danger/hazard.

"off"

that

suggest

a

due
trip

to

hazard

visible
size

or

and

other

an open and obvious "defect" in the path that a

pedestrian/invitee

conclude

obvious

a

Plaintiff

was

reasonable

care

would

have

While one reasonable juror could
careless

for

voluntarily

stepping

the paved path onto the grassy area when there was ample

paved

space

to

the

right,

another

reasonable

juror

could

conclude that the grassy encroachment was not outside the boiands
of

the

provided

pavement,

walkway

rendering

the

and
hole

appeared
that

to

caused

be

"level"

Plaintiff's

hidden latent danger, not an open and obvious one.
194

Va.

at

situation was

575,

74

'open'

S.E.2d

at

53

to the plaintiff,
11

with

(noting

that

fall

the
a

See Crocker,
"while

the

in the sense that there

was no obstruction between her and the step
was

not

down);

necessarily
volpe,

'obvious'

281

Va.

at

to

her"

[on the stage] ,

that

637-38,

was

S.E.2d

708

there

a

at

it

step
827-28

(concluding that "the circuit court erred in holding as a matter
of

law

that

[a]

dam

presented

an

open

and

obvious

danger"

because while the danger of drowning in a lake or other body of
water

is

"open

and

obvious

as

a

matter

of

law,"

conclusion cannot be reached when a body of water has a

hidden hydraulic"
to a

the

same

"deadly,

created by a dam that is "not always visible

swimmer").

In

reaching

such

conclusion,

this

Court

rejects

the

Defendant's contention that Virginia law does not provide for a
distinction, at least on some fact patterns, between an open and

obvious

"condition"

Notably,

both

and

an

and

federal

state

open

and

obvious

courts

"danger/hazard."

applying

Virginia

law

have recognized that "it is not enough that an object be plainly

visible to constitute an open and obvious hazard,

the plaintiff

must also have reason to appreciate the nature of the harm posed
by the object."

2012

WL

Crocker,
Inc. ,

4503150,
194 Va.

254

example,

Cunningham v.

Va.

at

*4

at 575,

326,

331,

in O'Brien v.

Delhaize Am.,

{W.D.

Va.

Sept.

74 S.E.2d at 53);
491

S.E.2d

Everfast,

712,

Inc.,

27,

No.

3:12cv2,

2012)

(citing

O'Brien v.
714-15

Everfast,

(1997)).

For

the Supreme Court of Virginia

concluded that " [s]everal heavy bolts of fabric leaning against
12

a

table

[in a

danger"
it."

fabric

store]

is

not

so remarkable or patent a

that a reasonable person "would naturally seek to avoid
O'Brien,

254

Va.

at

331,

491

S.E.2d

although the bolts of fabric were clearly a

"the

jury properly could have

found

that

at

715.

Rather,

visible condition,

[the plaintiff]

was

privileged to browse the display floor without guarding herself
from being struck by a falling bolt of fabric."

Similarly,

another

judge

of

this

Id.

Court

recently

denied

summary judgment on the theory of contributory negligence in a
case where the plaintiff was injured falling off of a ledge into
a

"wave

Breeze

(E.D.

pool"

Holdings,

Va.

Aug.

establish that a

the

at

a

Virginia

LLC,

28,

No.

amusement

2:14cv484,

2015) .

park.

2015

In Long,

the

Long

WL

v.

12803773,

defendant

Ocean
at

*4

failed

to

three to four inch difference in height between

"simulated beach area"

on which the plaintiff was walking

and the "wave pool" that she was stepping into was an "open and
obvious"

danger

differential

reasonable

because

between

even

the

though

beach

area

there
and

was
the

a
pool

see

condition'

63

C.J.S.

Negligence

the

a

§ 741

{"An

Id.

{emphasis

'open and obvious

exists where the condition and risk are apparent to

and would be recognized by a
of

itself,"

juror could conclude that the height difference was

not visible as it was obscured by moving water.
added);

"clear color

visitor

.

.

.

.")

reasonable person in the position
(emphasis
13

added);

Freeman

v.

Case

Corp.,

118 F.3d 1011,

1014-15

{4th Cir.

1997)

{indicating in a

products liability case that "Virginia law looks not to whether
the

defect

itself

clearly apparent");
WL 5397227,

was

Kelly v.

at *2 n.3

obvious.")

Portsmouth,

Va.

whether

Food Lion,
2,

LLC,

the

No.

hazard

3:llcv80,

was

2012

2012)

{"It is the hazard

not the object itself,

that must be open

(citing

217

but

(W.D. Va. Nov.

created by an object,
and

obvious,

Freeman) ;

see

also

738-39,

232

S.E.2d

734,

(finding contributory negligence as a

West

v.

763,

City

766

of

{1977)

matter of law in a

case

where not only was the "water meter and its cover installed in
the

sidewalk

unevenness

...

in

clear

or depression were

view,"

but

the

"irregularity,

open and obvious

and

could have

been detected by anyone who was observant").®
In sum,
not

simply

this Court's role at the summary judgment stage is
to

"weigh"

judgment

based

inquiry

is

upon

the

such

'whether

evidence

and

weight.

the

grant

Instead,

evidence

or

deny

"[t]he

presents

a

summary

relevant

sufficient

disagreement to require submission to a jury or whether it is so

® This Court acknowledges that, in many circumstances, the nature of the
open and obvious condition or defect necessarily puts a reasonable person
on notice of the attendant danger (a visible three-inch depression in a
walkway and a visible four-inch curb are necessarily trip hazards).
However,

in

other

circumstances,

such

as

those

before

this

Court,

and

those in the cases cited above, a finding that a condition is open and
obvious does not automatically dictate whether such condition constitutes
an open and obvious danger.

For example,

a

two foot-wide black manhole

cover located in the middle of a light gray sidewalk and recessed M inch
below the surface of the sidewalk is likely an "open and obvious"
condition as a matter of law, but if a pedestrian steps onto the cover and
one side of it drops three inches, causing injury, the hidden danger
cannot be said to be open and obvious as a matter of law.
14

one-sided

that

one

party must

prevail

as

a

matter of

law.'"

Stewart, 581 F. App'x at 247 {quoting Anderson, 477 U.S. at 251-

52) .
as

Virginia law provides that matters involving line-drawing

to whether

a

condition/defect/hazard is

should typically be left to the jury.
demonstrate

that

the

facts

of

this

"open and obvious"

Here, Defendant fails to

case permit a

matter of law similar to those cases where a curb,

visible depression create an obvious

ruling as

a

large box, or

trip hazard such that

a

plaintiff can be said to be contributorily negligent as a matter
of

law

for

failing

"condition/defect"

to

at

avoid

issue

such

in this

hazard.

case,

as

Rather,

the

portrayed by the

evidence advanced by Plaintiff, was a relatively deep hole that
encroached onto the edge of a

paved path and was

long grass that created a seemingly level surface.

obscured by
Whether the

grassy area was an "open and obvious" danger that Plaintiff had
a duty to avoid is a question properly reserved for the jury.
IV.

For the
judgment

schedule

is

foregoing
DENIED.

with

the

CONCLUSION

reasons.
ECF

No.

Defendant's motion for
21.

Magistrate

Counsel

Judge

the

settlement conference prior to the trial date.

15

are

summary

INSTRUCTED

resumption

of

to

a

The Clerk is DIRECTED to send a

copy of

this Opinion and

Order to a l l counsel of record.
IT

IS

SO ORDERED.

Mark S.

Davis

United States District Judge

March 3

, 2017

Norfolk, Virginia

16