Barnett v. Dolgencorp, Inc.
Filing
21
OPINION and ORDER granting 18 Motion for Summary Judgment. Signed by Judge James P. Jones on 11/12/15. (flc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
STEVE GUSTAVE BARNETT,
Plaintiff,
v.
DOLGENCORP, INC. D/B/A
DOLLAR GENERAL STORE #4724,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. 2:14CV00047
OPINION AND ORDER
By: James P. Jones
United States District Judge
Roger M. Adams, Jonesville, Virginia, for Plaintiff; Holly N. Mancl, Penn,
Stuart, & Eskridge, P.C., Bristol, Tennessee, for Defendant.
In this diversity action, the plaintiff seeks recovery for injuries he sustained
when he slipped and fell on premises of a store operated by the defendant.
Following discovery, the defendant moved for summary judgment. The defendant
argues that, pursuant to Virginia law, summary judgment is appropriate because
the defendant had no knowledge or notice of a dangerous condition on its
premises.
For the following reasons, summary judgment for the defendant will be
granted.
I.
The following facts are taken from the summary judgment record.1
In January 2013, the plaintiff, Steve Gustave Barnett, along with his
granddaughter, visited the Dollar General Store # 4724 in Appalachia, Virginia,
owned and operated by the defendant, Dolgencorp, Inc., to purchase some candy.
The plaintiff alleges that as he rounded the corner of one of the grocery aisles, he
heard a bang, and his feet came out from under him due to the floor being wet and
slick.
He then fell backwards to the ground and injured his back, buttocks,
shoulders, hip, and head. The plaintiff claims that the defendant violated the duty
of care it owed to him as a business invitee because it failed to maintain its
premises in a reasonably safe condition.
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
1
On November 2, 2015, I issued an Order declaring that the defendant’s Motion
for Summary Judgment was deemed submitted for decision without further response,
briefing, or hearing, due to the plaintiff’s failure to file a timely response. The summary
judgment record consists solely of the defendant’s Motion for Summary Judgment and
memorandum with supporting exhibits, which include the plaintiff’s initial disclosures
pursuant to Fed. R. Civ. P. 26(a), as well as excerpts taken from the depositions of the
plaintiff and his granddaugther.
-2-
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
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
citation 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).
Applying these standards, the defendant’s Motion for Summary Judgment
must be granted.
-3-
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).
In this case, the defendant argues that summary judgment is appropriate
because the plaintiff fails to show that the defendant had knowledge of any defect
or hazardous condition. “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 v. Faison & Assocs., Inc., 440 S.E.2d 603,
-4-
605 (Va. 1994). The plaintiff has produced no evidence that the defendant had
actual knowledge or notice of any defect with respect to the wet substance on the
floor. Both the plaintiff and his granddaughter admit that they do not know
whether any store employees caused the liquid to be on the floor or knew of its
existence.
Therefore, the remaining issue is whether the defendant had
constructive knowledge of the dangerous condition 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. Accordingly, if the plaintiff fails to adduce
any evidence as to when or how long the unsafe condition existed, he has not made
a prima facie case, and summary judgment for the defendant is appropriate. Id.;
see also Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 454 (4th Cir. 2004).
In the present case, the plaintiff offers no evidence as to how or when the
store floor became wet. Neither the plaintiff nor his granddaughter saw any liquid
on the floor or know whether the liquid was there at the time of their arrival. The
plaintiff simply concludes that the store employees should have known how long
the liquid had been on the floor by the mere fact that they were working at the
time, and it was “their job” to know. (Pl’s Dep. 44, ECF No. 19-1). Therefore, it
is impossible to draw any positive inferences about when the liquid first appeared
-5-
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 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).
Accordingly, I find that summary judgment must be awarded in favor of the
defendant. See Grim, 434 S.E.2d at 890.
It is therefore ORDERED that the defendant’s Motion for Summary
Judgment (ECF No. 18) is GRANTED. A separate final judgment will be entered
herewith.
ENTER: November 12, 2015
/s/ James P. Jones
United States District Judge
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?