Stultz v. Wal-Mart Stores, Inc. et al
Filing
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MEMORANDUM OPINION. Signed by Judge Jackson L. Kiser on 10/4/16. (ham)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DANVILLE DIVISION
RUBY A. STULTZ,
Plaintiff,
v.
WAL-MART STORES, INC. and
WAL-MART STORES EAST, L.P.,
Defendants.
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Case No.: 4:15-cv-00055
MEMORANDUM OPINION
By: Hon. Jackson L. Kiser
Senior United States District Judge
On September 2, 2015, Plaintiff Ruby A. Stulz (“Plaintiff”) filed a state negligence action
against Wal-Mart Stores, Inc., and Wal-Mart Stores East, L.P., (“Defendants”) in Henry County
Circuit Court. (Compl., Sept. 2, 2015 [ECF No. 1–2].) Defendants filed a Notice of Removal
prior to service on December 10, 2015. [ECF No. 1.] In their Answer, Defendants allege that
Plaintiff’s injuries were caused by her contributory negligence. (Answer pg. 3, Dec. 15, 2015
[ECF No. 8].) Defendants moved for summary judgment on August 31, 2016. (Mot. for Summ.
J., August 31, 2016. [ECF No. 15.] The matter was fully briefed, and the parties appeared for
oral argument on the Motion on September 22, 2016. Having considered the briefs and the
arguments of the parties, the matter is now ripe for disposition. For the reasons stated below,
Defendants’ Motion for Summary Judgment will be denied.
I.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND1
On October 6, 2013, Plaintiff drove her car to the Wal-Mart Supercenter, located at 976
Commonwealth Boulevard in Martinsville, Virginia, to buy yarn for her granddaughter. (Dep. of
Ruby A. Stultz 21:23-25, 22:23-23:2, June 24, 2016 [ECF No. 16–3] (hereinafter “Pl’s Dep.”)
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Because this matter is before the Court under Federal Rule of Civil Procedure 56, the facts are recited in
the light most favorable to Plaintiff, the non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007).
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Plaintiff arrived at approximately 12:47 p.m. and entered through the Tire and Lube Express
(“TLE”) entrance, where oil changes and vehicle maintenance are performed. (Id. at 25:22–
26:9.) Plaintiff was a regular customer of this Wal-Mart and had used this entrance several times
prior to the incident which gave rise to the present litigation. (Pl. Interrogatory Answers and Req.
for Produc. ¶ 1, June 21, 2016 [ECF No. 16–2] (hereinafter “Pl.’s Interrog.”).) The door to the
TLE is solid but has a window, giving a view into the customer area of the TLE. On the day of
the incident, however, a piece of a paper was posted to the window, partially obscuring the view
through the window, “meaning that a customer could not see through the glass to the floor
below.” (Br. in Opp’n to Defs.’ Mot. for Summ. J. ¶ 4, Sept. 8, 2016 [ECF No. 19] (hereinafter
“Pl’s Br.”).)
A security camera located in the TLE customer area captured the incident. (See Br. in
Supp. of Def.’s Mot. for Summ. J. (hereinafter “Defs.’ Br.”) Ex. 4, Aug. 31, 2016 [ECF No. 164] (hereinafter “Surveillance Tape”).) At approximately 12:10:40 p.m., one of Defendants’
employees placed two wooden pallets near the entryway of the TLE customer area. At
approximately 12:47:54 p.m., Plaintiff, dressed in a pink shirt, approached the door from the
outside. (Pl.’s Dep. 26:10–26:12; Defs.’ Br. Ex. 5 [ECF No. 16–5].) Plaintiff stated in her
Response that the pallets “were located approximately one step in front of the door as it opens.”
(Pl.’s Br. ¶ 5.) On the video, however, Plaintiff took three steps before she tripped over the
pallets and fell to the ground. (Surveillance Tape 12:47:57–12:48:02 p.m.) When she fell, both
her knees hit the ground simultaneously, and she caught herself with her hands. (Pl.’s Dep.
45:15–45:25.)
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Plaintiff concedes she was not looking down as she entered. She claims “she was
distracted as she was looking over to the customer counter to her left, and this distracted her view
of what was immediately at her feet as the door opened.” (Pl.’s Br. ¶ 7.) Plaintiff stated that the
blue pallets were noticeable against the white floor “[i]f you’re looking down while you’re
walking.” (Pl.’s Dep. 43:4–7.) The solid door, coupled with the paper sign posted in the door’s
window, prevented her from seeing the pallets. (Pl.’s Interrog. ¶ 1.) Instead, Plaintiff was looking
to her left, towards the cash registers, hoping to see a Wal-Mart employee to direct her to the
yarn section. (Pl.’s Dep. 40:24–41:8.) Plaintiff was using a cane at the time as a result of a
workplace accident in 2010. (Pl.’s Dep. 17:16–18:2, 45:10–12; Pl.’s Interrog. ¶ 2.)
For approximately six minutes after her fall, Plaintiff paced around the TLE customer
area, presumably looking for an employee. (Surveillance Tape 12:48:00-12:54:00 p.m.)
Eventually, Robert Vaughn, a Shift Manager, came to speak with her. (Aff. of Robert Vaughn,
August 19, 2016 [ECF No. 16–6] (hereinafter “Vaughn Aff.”).) Plaintiff declined to have store
personnel call 911 for an ambulance. (Pl.’s Dep. 60:10–18.) Plaintiff completed her purchase
with the assistance of a Wal-Mart manager, who escorted her throughout the store. Another
employee escorted Plaintiff to her vehicle. (Pl’s Dep. 61:13–20.) It is unclear whether Plaintiff
requested this assistance. Plaintiff drove herself home and called her friend, a Registered Nurse,
to take her to the hospital. (Pl.’s Dep. 60:19–61:3.) Plaintiff alleges that she was “seriously and
permanently injured about her head, neck, body and extremities” as a result of her fall. (Compl. ¶
5.)
After the incident, Vaughn reviewed the video surveillance and affirmed that thirteen
individuals walked into the TLE customer area through the same door as Plaintiff, and that none
tripped over the pallet. (Vaughn Aff. ¶¶ 5–6.) Plaintiff counters that two of the individuals who
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came through the door walked through twice, bringing the actual total to eleven separate persons.
One individual appeared not to notice the pallets until her foot hit the stack, causing her to
quickly change direction to avoid the pallets. (Surveillance Video 12:14:13–:21 p.m.) Vaughn
had the pallets removed shortly after speaking with Plaintiff. (Surveillance Video 1:07:15 p.m.;
Vaughn Aff. ¶ 3.)
Plaintiff originally filed this action on September 2, 2015, in Henry County Circuit Court.
Prior to being served, Defendants filed a Notice of Removal on December 10, 2015, based on
diversity jurisdiction under 28 U.S.C § 1332. In her Complaint, Plaintiff alleged that Defendants’
employee negligently placed wooden pallets near a customer entryway, causing her to trip over
the pallets and injure herself. (Compl. ¶¶ 2–4.) On August 31, 2016, Defendants filed a motion
for summary judgment, arguing Defendants met the proper standard of care, and Plaintiff’s
injuries were caused by her own contributory negligence. Plaintiff filed a response on September
8, 2016 (see Pl.’s Br.), Defendants filed a Reply (Defs.’ Reply Br. in Supp. of Mot. for Summ J.,
September 15, 2016 [ECF No. 22] (hereinafter “Defs.’ Reply Br.”)), and the parties argued
Defendants’ Motion on September 22, 2016.
II.
STANDARD OF REVIEW
Summary judgment is appropriate where there is no genuine issue as to any material fact,
and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). The court
must view the facts, and the inferences to be drawn from them, in the light most favorable to the
non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). A genuine issue of
material fact exists if reasonable jurors could find by a preponderance of the evidence that the
non-moving party is entitled to a verdict in their favor. Anderson v. Liberty Lobby, Inc., 477
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U.S. 242, 252 (1986). The court must not make credibility determinations or weigh the evidence.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
The moving party has the initial burden of pointing out the deficiency in the nonmovant’s case that would make it impossible for a reasonable fact-finder to return a verdict in the
non-movant’s favor. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A movant-defendant
may show that he is entitled to judgment as a matter of law by demonstrating that the plaintiff
could not prove an essential element of his case. Id. at 322–23. It is then up to the non-movant to
demonstrate to the court that there are genuine issues of material fact, and that he has made a
sufficient showing on each of the essential elements of his case. Emmett v. Johnson, 532 F.3d
291, 297 (4th Cir. 2008); Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996).
Therefore, summary judgment is appropriate when the moving party points out a lack of
evidence to support an essential element of his or her claim. See Blair v. Collonas Shipyards Inc.,
52 F. Supp. 2d 687, 692 (E.D. Va. 1999), aff'd 203 F.3d 819 (4th Cir. 2000).
In a diversity case, a federal court must apply the substantive law of the forum state. See
generally Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Therefore, the Virginia law applicable
to slip-and-fall cases governs this case. Logan v. Boddie-Noell Enter., Inc., No. 4:11-cv-8, 2012
WL 135284, at *4 (W.D. Va. January 18, 2012).
III.
DISCUSSION
The facts in this case are generally undisputed. Both parties agree that the pallets, placed
by one of Defendants’ employees, presented a hazard, and that Plaintiff tripped over the pallets,
injuring herself. Therefore, there are two contested issues remaining among the parties: (1)
whether the pallets on the floor of the TLE Customer Area constituted an “open and obvious”
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hazard; and (2) whether Plaintiff’s failure to see and the pallets constituted contributory
negligence.
A.
“Open and Obvious” Hazard
As mentioned above, in a diversity case, the substantive law of the forum state is
controlling. Erie R.R. Co., 304 U.S. 64. In Virginia, a business owner is required:
to have the premises in a reasonably safe condition for [a
customer’s] visit; to remove, within a reasonable time, foreign
objects from its floors which it may have placed there or which it
knew, or should have known, that other persons had placed there;
to warn the plaintiff of the unsafe condition if it was unknown to
her, but was, or should have been, known to the defendant.
Colonial Stores, Inc. v Pulley, 125 S.E.2d 188, 190 (Va. 1962). A business owner, however, is
not required to warn customers when “the dangerous condition is open and obvious, and is patent
to a reasonable person exercising ordinary care for his own safety.” Fultz v. Delhaize America,
Inc., 677 S.E.2d 272, 274 (Va. 2009); see also O’Brien v. Everfast, Inc., 491 S.E.2d 712, 715
(Va. 2009) (“A business invitee has the duty to be aware of open and obvious dangers.”);
Restatement (Second) of Torts § 343A cmt. b (Am. Law Inst. 1965) (“‘Obvious’ means that both
the condition and the risk are apparent to and would be recognized by a reasonable man . . .
exercising ordinary perception, intelligence, and judgment.”). This Court has previously
surveyed Virginia case law and found that, while solid tripping hazards are more likely to
constitute an open and obvious danger, “there is no bright line test.” Logan v. Boddie-Noell
Enterprises, Inc., No. 4-11-cv-8, 2012 WL 135284, at *9 (W.D. Va. Jan. 18, 2012).
Boxes in the middle of a shopping aisle have generally been found to be open and
obvious hazards. See, e.g., Cameron v. K Mart Corp., No. 3:09-cv-81, 2010 WL 2991014, at *3
(W.D. Va. July 30, 2010) (finding boxes between sofas in a furniture aisle to be open and
obvious); West v. City of Portsmouth, 232 S.E.2d 763, 767 (Va. 1977) (finding boxes in a six-6-
foot wide aisle to be open and obvious); Gottlieb v. Andrus, 104 S.E.2d 743, 747 (Va. 1958)
(holding that boxes in an aisle were open and obvious regardless of whether they were six feet
down the aisle or at the plaintiff’s feet.). In contrast, a six-inch drop-off directly behind an
unmarked door was not considered to be open and obvious as a matter of law. City of Suffolk v.
Hewitt, 307 S.E.2d 444, 449 (1983).
The present case falls somewhere between Gottlieb, where the plaintiff tripped over a box
in a wide, well-lit aisle, and Hewitt, where the hazard was a six-inch drop off immediately past a
solid, unmarked door. Defendants claim that Hewitt distinguished itself from Crocker v. WTAR
Radio Corp. where the plaintiff fell after walking “two steps” on an uneven theatre floor. 74
S.E.2d 51, 52 (Va. 1953). But the court in Crocker allowed the contributory negligence issue to
reach a jury. In other words, the “two steps” the plaintiff took before falling did not establish
contributory negligence as a matter of law. The pallets in this case were blue and stuck out
against a light-colored floor, but it is unclear whether they were visible through the TLE door’s
partially-covered window. On the Surveillance Tape, there are approximately three seconds
between when Plaintiff first begins to open the door and when Plaintiff falls. She had barely
enough time to orient herself as to her surroundings. I cannot conclude, as a matter of law, that
Plaintiff saw, or in exercise of reasonable care should have seen, the pallets.
Defendants point out that thirteen2 customers came through the door without tripping
over the pallet, but this does not settle the issue. In Little Creek Inv. Corp. v. Hubbard, the
plaintiff was walking behind “three or four” of her co-workers before tripping on a muffler left
on a sidewalk. 455 S.E.2d 244, 246 (Va. 1995). No one else tripped. A security guard described
the muffler as being in “plain sight.” Id. at 248. The court did not find this fact dispositive. Id. at
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As previous noted, two of the individuals entering the TLE Customer Area before Plaintiff came
through a second time. Thus, only eleven people seem to come through the door. This makes little
difference.
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250. Defendants also argue that, because Plaintiff testified that she did not look through the TLE
door’s window, she “cannot now be heard to say her view of the pallets was obstructed.” (Defs.’
Reply Br. 3). The open and obvious standard, however, is objective. See Hewitt, 307 S.E.2d at
447 (“An owner is required to give notice or warning of an unsafe condition known to him and
unknown to his invitee unless the dangerous condition is open and obvious to a reasonable
person exercising ordinary care.” (emphasis added)). The specific actions of Plaintiff do not
resolve whether a reasonable person would find the pallets to be an open and obvious hazard.
Viewing the facts of this case in the light most favorable to Plaintiff, it appears that
reasonable minds could disagree as to whether pallets located a few steps past a door with a
partially obscured window were open and obvious. As a result, Defendants’ Motion for
Summary Judgment on this issue will be denied.
B.
Contributory Negligence
In Virginia, contributory negligence is an absolute bar to recovery. Hall v. DLC Mgmt.
Corp., No. 7:11-cv-298, 2013 WL 1743865, at *5 (W.D. Va. April 23, 2013) (citing Smith v.
Virginia Elec. & Power Co., 129 S.E.2d 655, 659 (Va. 1963)). While the contributory negligence
analysis and the open and obvious analysis are similar, they are not the same. The latter is
focused on the hazard, and the former is concerned with the plaintiff’s conduct. Id.
A plaintiff who trips and falls because of an open and obvious hazard is contributorily
negligent as a matter of law. Rocky Mount Shopping Ctr. v. Steagall, 369 S.E.2d 193, 194 (Va.
1988). A plaintiff can be contributorily negligent even if she did not see an open and obvious
hazard. Id. Contributory negligence is an objective test, asking whether “a plaintiff failed to act
as a reasonable person would have for [her] own safety under the circumstances.” Artrip v. E.E.
Equip. Co., 397 S.E.2d 821, 824 (Va. 1990). “The relevant standard, therefore, is essentially a
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totality of the circumstances test.” Logan, 2012 WL 135284, at *9. The Virginia Supreme Court
has declined to hold that a person’s “failure to look down while stepping forward must constitute
contributory negligence in every case.” Little Creek, 455 S.E.2d at 246.
A party’s negligence will rarely be so clear-cut that it can be resolved as a matter of law.
“Ordinarily, negligence is a jury issue. Its determination requires the sifting and evaluation of
facts, which are matters exclusively within the province of a jury.” Stevens v. Ford Motor Co.,
309 S.E.2d 319, 322–23 (Va. 1983); see also Ponirakis v. Choi, 546 S.E.2d 707, 711 (Va. 2001)
(“Generally, an issue whether plaintiff is guilty of contributory negligence is a question of fact to
be decided by the trier of fact.”); Artrip 397 S.E.2d at 823 (“Contributory negligence and
assumption of risk likewise are jury issues unless reasonable minds could not differ about their
resolution.”). Unless reasonable minds could not differ over whether Plaintiff was negligent and
whether that negligence was a proximate cause of the accident, the issue is inappropriate for
summary judgment.
Defendants argue that, because Plaintiff admitted to looking to her left, towards the
register counter, rather than directly in front of her, she is guilty of contributory negligence. This
cannot be the case. It would require a finding that it is per se unreasonable for a patron to look
around for an employee as she enters a store. Although the Supreme Court of Virginia has
occasionally held that tripping over an object without looking down constitutes contributory
negligence, it has not always done so. As previously discussed, the court in Gottlieb held that by
tripping over a box in the middle of a six-foot wide, well-lit aisle, the plaintiff was guilty of
contributory negligence as a matter of law. 104 S.E.2d at 747. Similarly, in Tazewell Supply Co.
v. Turner, the plaintiff was guilty of contributory negligence as a matter of law after she tripped
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over a box she failed to see. 189 S.E.2d at 350. Admittedly, the facts in Tazewell Supply are
similar to those of the present case:
[T]he plaintiff said that had she been looking she would have seen
the box. She was asked if she ever saw the box and responded:
“No, sir, if I had been looking down I would have seen it, but I was
looking at the things hanging up over there.” . . . The testimony of
[the plaintiff’s sister] was equally as damaging in showing
contributory negligence by the plaintiff. She testified that she had
no trouble whatsoever in seeing the box on two occasions although
she was not looking for it either time. She further said that she had
no trouble in avoiding the box when she made her right turn into
the cross aisle where the box was located.
Id. The court relied heavily on the ruling in Gottlieb, noting that the two cases were “strikingly
similar.” Id.
Tazewell notwithstanding, a failure to look down while walking is not a dispositive fact.
In Hewitt, the plaintiff missed the drop-off, in part, because she was not looking down as she was
walking. 307 S.E.2d 444, 449. The court, however, held that failing to look down was “one of
many facts to be considered.” Id. The Supreme Court of Virginia held in Little Creek that, in
addition to finding that the stray muffler was not an open and obvious hazard, a plaintiff’s failure
to see the muffler was not contributory negligence as a matter of law. 455 S.E.2d 248. The
plaintiff was walking behind a group of co-workers, and the weather was “dark, rainy, and very
windy.” Id. at 248. Many of the plaintiff’s co-workers, however, had seen the muffler earlier in
the day, and a security guard described the muffler as being in “in plain view.” Id. In weighing
these competing factors, the court held that “reasonable people could disagree as to whether [the
plaintiff’s] actions complied with her duty of ordinary care.” Id. at 247.
In Tazewell Supply, the plaintiff not only admitted that she failed to look down as she
was walking, but also that she was looking up at “Christmas seals” as she made her way through
the store. 189 S.E.2d at 348. She fell after being in the store for “20 to 30 minutes,” and her sister
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had noticed the box on the floor twice. Id. at 348–49. There was no evidence that the box was
concealed in any way and, based on her sister’s testimony, the plaintiff missed two opportunities
to see the box. 189 S.E.2d at 348–49. The court in Gottlieb noted, and Defendants contend, that
“a glance down the aisle as she first entered it, or at any point as she walked along, would have
shown her the boxes on the floor.” 104 S.E.2d at 747 (emphasis added). In this case, Plaintiff did
not have the same amount of time to notice and avoid the pallets. The timeline is more similar to
Hewitt, where the plaintiff almost immediately encountered the six-inch drop into the boiler
room. Here, Plaintiff had, at most, a few seconds to notice the pallets but did not do so because
she was looking for employee aid.
While the present case shares some similarities with Gottlieb and Tazewell, the facts,
considered in the light most favorable to Plaintiff, could lead reasonable people to disagree as to
whether Plaintiff was negligent. Like the boxes in Gottlieb and Tazewell, the pallets were clearly
visible to anyone standing in the TLE customer area. But Plaintiff entered through a door with a
window that was least partially obscured. Plaintiff testified that the window was obscured and
that she did not look through it. (Pl.’s Dep. 32:15–24). Whether Plaintiff should have made a
greater effort to look through the window, as Defendants suggest, cannot be decided as a matter
of law. Similarly, when Plaintiff went through the door, she looked towards the registers, hoping
to see a Wal-Mart employee. Three steps later, her foot caught the pallets, and she fell. Whether
Plaintiff’s actions constituted negligence in these circumstances is for the trier of fact, not the
court, to decide.
IV.
CONCLUSION
In viewing the facts in the light most favorable to Plaintiff, there exist genuine issues of
material fact as to whether the pallets were open and obvious and whether Plaintiff was
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contributorily negligent. Virginia case law calls for a totality of the circumstances analysis, and a
reasonable juror could rule either for Plaintiff or Defendants based on the facts alleged. For these
reasons, Defendants’ Motion for Summary Judgment will be denied.
Entered this 4th day of October, 2016.
s/Jackson L. Kiser
SENIOR UNITED STATES DISTRICT JUDGE
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