Owen v. K-Mart Corporation et al
OPINION AND ORDER granting 30 Motion for Summary Judgment. Signed by Judge James P. Jones on 9/7/2017. (lml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Case No. 1:16CV00024
OPINION AND ORDER
By: James P. Jones
United States District Judge
Thomas R. Scott, Jr., Street Law Firm, LLP, Grundy, Virginia, for Plaintiff;
Danielle D. Giroux and Kathryn D. Jones, Harman, Claytor, Corrigan &
Wellman, Alexandria, Virginia, for Defendant.
In this diversity action,1 the plaintiff seeks recovery for injuries he sustained
when he 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 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.
The plaintiff is a citizen of Virginia and the defendant is a corporation
incorporated in Michigan with its principal place of business in Illinois. The plaintiff
seeks damages in excess of $75,000. See 28 U.S.C. § 1332(a). The defendant timely
removed the case from state court pursuant to 28 U.S.C. § 1441(a).
On June 9, 2014, the plaintiff, Harold Owen, was shopping at a retail store in
Abingdon, Virginia, operated by defendant Kmart Corporation. While pushing a
cart down one of the aisles, which contained shelves stocked with liquid laundry
and dish detergents, the plaintiff slipped on a puddle of liquid on the floor and fell,
injuring himself. The plaintiff denies seeing the substance on the floor prior to his
fall. The puddle of liquid was light orange in color and according to a Kmart
employee, was “[a]bout a foot puddle” or “a foot circle,” located close to the
shelves. Clark Dep. 60:22-24, 61:15-19, ECF No. 34-4. The employee found a
bottle on the shelf that had “some” liquid missing “and the tab had been like
somebody pushed their thumb through the tab, and the bottle was closed.” Id.
49:4-7. Prior to the incident, no employees were aware of the liquid being on the
floor and only learned of it as a result of the plaintiff’s fall. A Kmart employee
had traveled down the same aisle approximately ten minutes prior to the accident
and did not see any substance on the floor.
Following discovery, Kmart has moved for summary judgment in its favor.
It argues that, pursuant to Virginia law, summary judgment is appropriate 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
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.
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
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 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).
Kmart 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 any Kmart employee had
actual knowledge of the spilled substance on the floor prior to the plaintiff’s fall.
Indeed, the evidence is clear that the store employees first learned about the
substance as a result of the plaintiff’s fall. Instead, the parties are agreed that the
crucial issue is whether Kmart had constructive knowledge of the spilled substance
prior to the plaintiff’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, 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 his fall and
does not know whether the substance was there at the time of his arrival.
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’s employees an opportunity to discover it. In fact, an employee had
traveled down the same aisle approximately ten minutes prior to the incident and
stated that he did not see any spilled substance at that time. Thus, the plaintiff is
unable to prove that the condition existed for a sufficient time to charge the
defendant 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).
Relying on an Alabama state case, Kenney v. Kroger Co., 569 So. 2d 357
(Ala. 1990), the plaintiff argues that because of the amount of liquid on the floor
— enough to make a “foot circle” and to wet the plaintiff’s clothing — a jury
could infer that the substance had been on the floor a sufficient amount of time that
it should have been detected and to further disbelieve the otherwise uncontradicted
testimony that there had been no substance on the floor ten minutes before the
plaintiff’s fall. Pl.’s Mem. Opp’n to Def.’s Mot. Summ. J. 10-11, ECF No. 34.
Indeed, the plaintiff argues that the jury could believe that the liquid had been on
the floor for more than an hour, in light of the fact that the store was near closing
time and that there were few customers present. Id. at 10.
I do not accept the plaintiff’s argument. There is no evidence in the present
record that would allow a jury to determine, beyond pure speculation, the amount
of time that the puddle of liquid dish detergent had been on the store’s floor. See
Tidd v. Walmart Stores, Inc., 757 F. Supp. 1322, 1324 (N.D. Ala. 1991) (rejecting
Kenney on the ground that its holding was based upon the state standard for
summary judgment). As in Tidd, there is no evidence of a dripping container or
other facts that would raise a proper question of fact as to constructive notice. See
id. Indeed, the only evidence on the subject indicates that the liquid detergent may
have been poured onto the floor.
How, or when that happened, is equally
speculative. 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 the
It is therefore ORDERED that the defendant’s Motion for Summary
Judgment (ECF No. 30) is GRANTED. A separate final judgment will be entered
The defendant also argues that Owen was contributorily negligent. Because I
am granting summary judgment in favor of the defendant based on its constructive notice
argument, it is not necessary for me to decide whether contributory negligence is a bar to
the plaintiff’s recovery.
ENTER: September 7, 2017
/s/ James P. Jones
United States District Judge
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