Smith v. Sam's East, Inc.
OPINION. Signed by Judge James P. Jones on 6/7/16. (ejs)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DEBRA R. SMITH,
SAM’S EAST, INC.,
Case No. 1:15CV00035
By: James P. Jones
United States District Judge
Mary Lynn Tate, Tate Law, PC, Abingdon, Virginia, for Plaintiff; W.
Bradford Stallard, Penn, Stuart & Eskridge, Abingdon, Virginia, for Defendant.
In this diversity action, the plaintiff seeks recovery for injuries she sustained
when she slipped and fell on premises of a retail store operated by the defendant.
The plaintiff contends that the defendant was negligent by failing to keep premises
free from dangerous conditions of which it knew or should have known. The
plaintiff further alleges that the defendant should be equitably estopped from
asserting any defenses. Based on the undisputed facts, I will grant the defendant’s
Motion for Summary Judgment.
The essential facts, taken from the summary judgment record and recited in
the light most favorable to the nonmovant, are as follows.
On July 6, 2012, at approximately 8:20 p.m., the plaintiff, Debra R. Smith,
visited the Sam’s Club store in Bristol, Virginia, which is owned and operated by
the defendant, Sam’s East, Inc. (“Sam’s”).
Upon entering the store, Smith
obtained a metal shopping cart provided by Sam’s. While pushing the cart into one
of the aisles, Smith slipped on liquid on the floor. One of her legs slid under the
cart and her ankle was cut by the bottom of the cart. Smith denies seeing the liquid
prior to falling.
Store employees responded to the incident within seconds. The assistant
manager on duty, Randy Whistler, prepared an incident report after speaking with
Smith. A subsequent investigation and review of video security footage revealed
that Smith had slipped on a puddle of soft drink soda caused when an adolescent
boy deliberately punctured a shelved plastic Pepsi bottle. Whistler ultimately was
able to identify the boy, as well as the customer he was with.
The security footage also revealed that the time between when the bottle was
punctured and when Smith fell was approximately five minutes. During that time,
no employees were in the area of the spill. However, an employee had conducted a
routine safety walk to check the area for spills shortly before the spill acutally
occurred. The store first learned of the spill as a result of Smith’s fall.
Following discovery, Sam’s has moved for summary judgment in its favor.
Sam’s argues that, pursuant to Virginia law, summary judgment is appropriate
because it had no knowledge or notice of any defect on its premises.
defendant’s motion is ripe for decision, having been fully briefed by the parties.1
Summary judgment is appropriate when “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). To raise a genuine issue of material fact
sufficient to avoid summary judgment, the evidence must be “such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this determination, “the
court is required to view the facts and draw reasonable inferences in a light most
favorable to the nonmoving party.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.
Rule 56 mandates the entry of summary judgment “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.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party “need not
produce evidence, but simply can argue that there is an absence of evidence by
which the nonmovant can prove his case.”
Cray Commc’ns, Inc. v. Novatel
I will dispense with oral argument because the facts and legal contentions have
been adequately presented in the materials before the court and oral argument would not
significantly aid in the decisional process.
Comput. Sys., Inc., 33 F.3d 390, 393 (4th Cir. 1994) (internal quotation marks and
citations omitted). Summary judgment is not “a disfavored procedural shortcut,”
but rather is a valuable mechanism for excluding “claims and defenses [that] have
no factual basis.” Celotex, 477 U.S. at 327. It is the “affirmative obligation of the
trial judge to prevent factually unsupported claims and defenses from proceeding
Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (internal
quotations marks and citations omitted).
Virginia substantive law governs this diversity action. See Erie R.R. v.
Tompkins, 304 U.S. 64, 78 (1938). In Virginia, the law applicable to slip-and-fall
cases is well settled. See Winn-Dixie Stores, Inc. v. Parker, 396 S.E.2d 649, 650
(Va. 1990). A landowner “must use ordinary care to keep his premises reasonably
safe for an invitee, although he is not an insurer of the invitee’s safety.” Tate v.
Rice, 315 S.E.2d 385, 388 (Va. 1984). In the absence of any evidence tending to
show that a landowner knew, or should have known by exercise of reasonable
diligence, of the defect or unsafe condition, the landowner will not be liable for
injuries caused by some defect or unsafe condition in the premises. See Roll ‘R’
Way Rinks, Inc. v. Smith, 237 S.E.2d 157, 161 (Va. 1977).
Sam’s argues that summary judgment is appropriate because it had no
knowledge of any defect or hazardous condition, which in this case was the spilled
liquid on the floor. Additionally, video surveillance footage establishes that a third
party is responsible for the spill, not Sam’s. In the absence of evidence showing
that some affirmative conduct of the defendant caused the condition, the plaintiff
must show that the defendant had actual or constructive knowledge of the
condition. Ashby v. Faison & Assocs., Inc., 440 S.E.2d 603, 605 (Va. 1994).
“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 establish a prima facie case of negligence.” Grim v. Rahe, Inc.,
434 S.E.2d 888, 889 (Va. 1993).
The applicable standard is “whether [the
defendant] knew or should have known, of the presence of the [defect] that caused
[the plaintiff’s] fall and failed to remove it within a reasonable time or to warn of
its presence.” Ashby, 440 S.E.2d at 605.
Here, Smith has produced no evidence that Sam’s had actual knowledge or
notice of the spilled soda on the floor. No employees were in the area of the spill
at the time of the incident. Indeed, Sam’s first learned about the spill as a result of
Smith’s fall and was not aware of it prior to the incident. Therefore, the remaining
issue is whether the defendant had constructive knowledge of the spilled Pepsi
prior to Smith’s fall.
Constructive knowledge of a defect or dangerous condition on the premises
may be established by evidence that the condition “was noticeable and had existed
for a sufficient length of time to charge its possessor with notice of its defective
condition.” Grim, 434 S.E.2d at 890. Here, there is no need to speculate as to how
long the soda had been on the floor. The video surveillance footage in the record
demonstrates that Smith’s fall occurred within minutes of when the soda bottle was
punctured. Thus, the liquid simply had not been on the floor long enough that
knowledge of it should be imputed to Sam’s. Accordingly, Smith has failed to
prove the prima facie element of notice, and I find that summary judgment must be
awarded in favor of Sam’s.
Smith argues that genuine issues of material fact exist precluding summary
judgment. First, Smith asserts that Sam’s had a duty to provide premises that were
reasonably safe for customers and did not do so by failing to respond to the
vandalism that caused the spill and by supplying its customers with dangerous
shopping carts. Smith further contends that Sam’s assumed a heightened duty to
constantly monitor its concerete floors and did not do so, thereby allowing the
spilled Pepsi to remain on the floor and ultimately causing Smith to fall. Finally,
Smith asserts that Sam’s defenses are barred based on equitable estoppel for failing
to provide the vandal’s identity. I will address each of these arguments in turn.
1. Duty to provide safe premises.
Smith first argues that Sam’s breached its duty of “prevision, preparation
and lookout as well as the duty of ordinary care to see that the premises are in a
reasonably safe condition” because it failed to immediately detect the act of
vandalism that led to Smith’s injury. Appalachian Power Co. v. La Force, 201
S.E.2d 768, 770 (Va. 1974). In essence, Smith contends that if an employee had
been working in the section of the store where Smith fell or had been monitoring
the security footage at the time of the vandalism, the spill would have been
detected and her fall prevented.
As discussed previously, Virginia premises liability law provides that a store
owner has a duty to exercise a reasonable degree of care to make his premises safe
for invitees or to warn of any unsafe condition known, or by the use of ordinary
care should have been known, to the owner. Tate, 315 S.E.2d at 388. In this case,
Smith’s argument would essentially require that Sam’s, as well as all retail stores,
be an insurer of its customers safety. This is simply not the law in Virginia.
Moreover, in the absence of any evidence tending to show that a landowner
knew, or should have known by exercise of reasonable diligence, of the defect or
unsafe condition, the landowner will not be liable for injuries caused by some
defect or unsafe condition in the premises. See Roll ‘R’ Way Rinks, Inc., 237
S.E.2d at 161. “General knowledge of potential peril is insufficient” to establish
actual or constructive notice under Virginia law. Logan v. Boddie-Noell Enters.,
No. 4:11-cv-00008, 2012 WL 135284, at *7 (W.D. Va. Jan. 18, 2012). In order to
establish liability, a plaintiff must show that the defendant had notice of “the
specific unsafe condition that injured her.” Hodge v. Wal-Mart Stores, Inc., 360
F.3d 446, 453 (4th Cir. 2004). In this case, the specific unsafe condition was the
liquid from the punctured bottle on the floor. Sam’s was not aware of the spill
until after the incident occurred. The fact that Sam’s may have been aware that its
concrete floors could be dangerous if covered with a foreign substance does not
change the fact that it did not have notice of the specific unsafe condition that
caused Smith’s injury. Therefore, any generalized knowledge about the possible
danger of concrete floors is insufficient to prove notice in this case.
2. Assumption of duty.
Smith also contends that Sam’s assumed a heightened duty of care to
constantly monitor for spills because Sam’s was aware that its concrete floors can
be slippery when wet. Smith claims that Sam’s breached this duty by failing to
monitor the security footage and immediately detect the spilled soda.
In determining the extent to which a defendant owes a plaintiff a duty,
Virginia has adopted the common-law principle of assumption of duty. Didato v.
Strehler, 554 S.E.2d 42, 48 (Va. 2001). This principle provides that a person who
affirmatively undertakes a duty must act reasonably in her undertaking or be
subject to liability for harm resulting from her failure to do so. Id.; see also Burns
v. Gagnon, 727 S.E.2d 634, 643-44 (Va. 2012). In this case, the assumption of
duty doctrine is not applicable because the evidence does not establish that Sam’s
affirmatively assumed a duty to constantly monitor its floors.
In support of her claim, Smith relies on Sam’s internal policies and
procedures. Specifically, Smith contends that Sam’s introduced “extraordinary
measures to control wet concrete floors” and “instituted hourly store wide visual
sweeps,” and that this conduct amounted to an assumption of a duty to constantly
monitor spills. (Pl.’s Br. in Opp’n 9, ECF No. 31.)
However, Smith’s reliance in this regard is misguided. Evidence of internal
policies or procedures does not change the duty owed to business invitees under
Virginia law. See Va. Ry. & Power Co. v. Godsey, 83 S.E. 1072, 1073 (Va. 1915)
(“Private rules may require of employees less or more than is required by law; and
whether a given course of conduct is negligent, or the exercise of reasonable care,
must be determined by the standard fixed by law, without regard to any private
rules of the party.”) “Virginia has long held that a person cannot, by the adoption
of private rules, fix the standard of his duties to others.” Elliott v. Food Lion, LLC,
No. 1:12-CV-1426, 2014 WL 1404562, at *7 (E.D. Va. Apr. 10, 2014) (internal
quotation marks and citations omitted). Accordingly, evidence of Sam’s internal
policies cannot be used to establish a heightened standard of care, and Smith’s
argument in this regard must fail. Furthermore, to impose a duty on Sam’s to
constantly monitor its floors for spills would essentially amount to strict liability.
3. Defective shopping cart.
Next Smith argues that because Sam’s was aware of the possibility of spills
and falls on its concrete floors, Sam’s breached its duty of care by providing a
shopping cart that “posed an unreasonable risk of injury.” (Pl.’s Br. in Opp’n 9,
ECF No. 31.) Smith claims that but for the shopping cart, her injury from the fall
would have been less severe.
The facts in the record as to exactly how Smith’s ankle was cut by the
shopping cart are limited and possibly contradictory.
There is a photograph in the record taken shortly after Smith’s fall that
shows the dark puddle of soda next to the shopping cart. (Suppl. Mem. Supp.
Summ. J., Ex. C, ECF No. 30-3.) While viewing the photograph during her
deposition, Smith agreed that her shin had been cut by the “bar that goes straight
across that looks like it’s over top of the two [rear] wheels.” (Def.’s Reply Mem.,
Ex. A, Smith Dep. 17-18, ECF No. 33-1.) That metal bar is connected to each side
of the cart and holds the spaced metal rods that create the shelf in the bottom of the
cart. (Pl.’s Br. in Opp’n, Ex. 1, Whistler Dep. 25, ECF No. 31-1.)
On the other
hand, the store employee who was first on the scene after Smith’s fall surmised
that she had been cut by “the rough edged metal rods on the lower shelf of the
cart.” (Id. at Ex. 3, Clendenin Decl. ¶ 5, ECF No. 31-3.) No rough edges are
visible in the photograph.
A month after the accident, counsel for Smith wrote requesting that Sam’s
preserve the cart involved in the incident. (Id. at Ex. 4, Tate Letter, ECF No. 314.) However, at that time, there is no evidence that Sam’s would have had any way
of knowing which of its carts was the particular cart involved in Smith’s case.
Although the store had since obtained new shopping carts, at the time of discovery
in the case Sam’s still had on its premises a sample of the type of cart used by
Smith. (Id. at Ex. 1, Whistler Dep. 26, ECF No. 31-1.) Nevertheless, there is no
further description in the record of the alleged dangerous portion of the shopping
cart. The best that can be said, viewing the evidence in the light most favorable to
Smith, is that her ankle was cut by something on the bottom of the cart.
In any event, there is no evidence that Sam’s had knowledge of such a
condition on this cart or on any of its shopping carts or any reason to believe that a
customer might injury themselves in such a manner by falling under a cart. A
Sam’s employee testified without contradiction that he was not aware of any
customer having been injured in a similar fashion. He stated, “We’ve had people
cut by the plastic on the handles, but that’s the only one that I’m aware of.” (Id. at
Ex. 2, Orr Dep. 65, ECF 31-2.)
Smith has produced no evidence, by way of expert testimony or otherwise,
that the design of the shopping cart was somehow defective or deviated from
industry standards. ‘“[T]he burden [is on] the plaintiff to show that the defendant
deviated from the standard of ordinary care, either by failing to observe applicable
trade customs and building code provisions or by some other defalcation.’” Foglia
v. Clapper, 885 F. Supp. 2d 821, 827 (E.D. Va. 2012) (quoting Morrison-Knudsen
Co. v. Wingate, 492 S.E.2d 122, 124 (Va. 1997)).
Accordingly, I find Smith’s claim in this regard unsupported by the facts
contained in the summary judgment record.
4. Equitable estoppel.
Smith finally argues that Sam’s should be estopped from asserting any
defenses because of Sam’s failure to provide the identify of the boy who punctured
the soda bottle. “The elements necessary to establish equitable estoppel are (1) a
representation, (2) reliance, (3) a change of position, and (4) detriment.” Cowan v.
Psychiatric Assocs., Ltd., 387 S.E.2d 747, 749 (Va. 1990) (citing Dominick v.
Vassar, 367 S.E.2d 487, 489 (Va. 1988)). Smith bears the burden of proving these
elements by “clear, precise and unequivocal evidence.” Id. (internal quotation
marks and citations omitted).
With respect to a representation, Smith states that “Sam’s adjustment agent
refused to give that identity to counsel for plaintiff.” (Pl.’s Br. in Opp’n 10, ECF
However, Sam’s did inform counsel for Smith of the third party
vandalism shortly after the incident, and Sam’s contends that Smith did not
respond to this information or request any additional information in this regard. In
any event, Smith does not explain why she could not have obtained this
information in discovery, if known by Sam’s or anyone who investigated the
accident. Accordingly, Smith has not met her burden of proving the elements of
equitable estoppel by clear, precise and unequivocal evidence, and her argument in
this respect must fail.
It is therefore ORDERED that the defendant’s Motion for Summary
Judgment (ECF No. 16) is GRANTED. A separate final judgment will be entered
ENTER: June 7, 2016
/s/ James P. Jones
United States District Judge
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