Powers-Sutherland v. Wal-Mart Stores, Inc. et al
Filing
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OPINION and ORDER granting 15 Motion for Summary Judgment. Signed by Judge James P. Jones on 12/13/16. (ejs)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
CHARLOTTE POWERS-SUTHERLAND, )
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Plaintiff,
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v.
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WAL-MART STORES, INC., t/a
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SAM’S CLUB, ET AL.,
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Defendants.
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Case No. 1:16CV00006
OPINION AND ORDER
By: James P. Jones
United States District Judge
Dan Bieger, Dan Bieger, PLC, Bristol, Tennessee, and David J. Hutton,
Hutton & Associates, P.C., Abingdon, Virginia, for Plaintiff; W. Bradford Stallard,
Penn, Stuart & Eskridge, Abingdon, Virginia, for Defendants.
In this diversity action, the plaintiff seeks recovery for injuries she sustained
when she slipped and fell on premises of a retail store. The plaintiff contends that
the store owner was negligent by failing to keep premises free from dangerous
conditions of which it knew or should have known. Based on the undisputed facts,
I will grant the defendants’ Motion for Summary Judgment.
I.
The essential facts, taken from the summary judgment record and recited in
the light most favorable to the nonmovant, are as follows.
On April 14, 2013, the plaintiff, Charlotte Powers-Sutherland, was shopping
at the Sam’s Club store in Bristol, Virginia, which is allegedly owned and operated
by the defendant Sam’s East, Inc. (“Sam’s”). 1 While walking down one of the
aisles, the plaintiff slipped on a substance on the floor near the frozen food cases
that “looked like snot or jelly from something you eat” and fell. (Grant Aff. 2,
ECF No. 19-1.) A store employee assisted the plaintiff, but the plaintiff indicated
that she did not need emergency medical treatment and left the store on her own
after shopping for approximately twenty minutes. The plaintiff denies seeing the
substance on the floor prior to falling.
At the time of the fall, no employees were in the area of the spilled
substance and were not aware of the substance being on the floor prior to the
plaintiff’s fall. The store first learned of the substance as a result of the plaintiff’s
fall.
A manager on duty at the time of the incident prepared a report from
information obtained by the plaintiff. While the store had surveillance cameras,
there is no video of the plaintiff’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
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The plaintiff sued four defendants: Wal-Mart Stores, Inc., t/a Sam’s Club;
Sam’s East, Inc., t/a Sam’s Club #6518; Sam’s West, Inc., t/a Sam’s Club; and Sam’s
Real Estate Business Trust. (Compl. 1, ECF No. 9, at p. 33.) The defendants aver in
their joint Answer that the only proper defendant is Sam’s East, Inc., which operates the
store in question. (Answer ¶ 2, ECF No. 6.) The plaintiff does not contest this fact and
in any event, it makes no difference, since I find that whichever of the defendants
operated the store, no liability accrues.
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because it had no knowledge or notice of the substance on the floor. The motion is
ripe for decision, having been fully briefed by the parties.2
II.
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.
1994).
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
I will dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument would not
significantly aid the decisional process.
2
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which the nonmovant can prove his case.”
Cray Commc’ns, Inc. v. Novatel
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
to trial.”
Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (internal
quotations marks and citations omitted).
III.
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 land owner “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).
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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
substance on the floor. 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, the plaintiff has produced no evidence that Sam’s had actual
knowledge or notice of the spilled substance 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 substance as a result of the plaintiff’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 substance prior to the plaintiff’s fall.
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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, the plaintiff has produced no evidence
as to when or how long the substance had been on the floor. Without any such
evidence, the plaintiff’s claim must fail. Id; see also Hodge v. Wal-Mart Stores,
Inc., 360 F.3d 446, 454 (4th Cir. 2004).
In the present case, the plaintiff did not see the substance prior to falling and
does not know whether the substance was there at the time of her arrival. Indeed,
the plaintiff simply concludes that “Sam’s Club should have known of the
condition and taken steps to remove it or to warn others of its presence” because
the condition was noticeable to the plaintiff’s friend after the fall, and Sam’s “has
employees that are constantly traveling the aisles of the store checking inventory
and stocking shelves.” (Pl.’s Opp’n Mot. Summ. J. 3, ECF No. 19.) Therefore, it
is impossible to draw any positive inferences about when the substance first
appeared on the floor or how much time had passed to allow the defendant an
opportunity to discover it. Thus, the plaintiff is unable to prove that the condition
existed for a sufficient time to charge Sam’s with constructive notice of it, and a
jury could only reach such a conclusion “as the result of surmise, speculation and
conjecture.” Colonial Stores, Inc. v. Pulley, 125 S.E.2d 188, 190 (Va. 1962).
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Accordingly, the plaintiff has failed to prove the prima facie element of notice, and
I find that summary judgment must be awarded in favor of Sam’s.
IV.
It is therefore ORDERED that the defendants’ Motion for Summary
Judgment (ECF No. 15) is GRANTED. A separate final judgment will be entered
herewith.
ENTER: December 13, 2016
/s/ James P. Jones
United States District Judge
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