Thomas v. Omni Hotels Management Corporation

Filing 59

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 3/7/17. (kld)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
ELLEN B. THOMAS,
Plaintiff,
v.
OMNI HOTELS MANAGEMENT
CORPORATION,
Defendant.

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Civil Action No. 5:15-cv-00086
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
In this premises liability action, which was removed to this court on the basis of diversity
jurisdiction, plaintiff Ellen Thomas seeks to recover for personal injuries she sustained when she
slipped and fell near a fountain at a resort managed by defendant Omni Hotels Management
Corporation (Omni). The case is before the court on Omni’s motion for summary judgment.
(Dkt. No. 45.) For the reasons stated below, the court will grant Omni’s motion.
I. BACKGROUND
This case arises from a slip and fall that occurred at the Omni Homestead Resort (the
Homestead) in Hot Springs, Virginia, which is managed by Omni. (Answer ¶ 1, Dkt. No 12.)
Plaintiff and her husband, Carl Thomas, Sr., arrived at the Homestead mid-afternoon on
November 12, 2013. (E. Thomas Dep. 54:20–25, Dkt. No. 47-1; C. Thomas Dep. 9:2–4, Dkt.
No. 47-3.) When they arrived the weather was “a bit windy” but sunny, with temperatures in the
40s or 50s. (C. Thomas Dep. 9:15–20.) The following morning, the Thomases walked into the
town of Hot Springs for breakfast at approximately 8:45 a.m. (E. Thomas Dep. 58:7–8, 59:3–4.)
The parties agree that the temperature was below freezing that morning: Mr. Thomas testified

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that he read a temperature sign indicating that it was 22 degrees. (C. Thomas Dep. 12:9–13.)
There was no indication that there had been any rain. (E. Thomas Dep. 61: 10–16.)
On their way out of the resort, the Thomases walked by the fountain where plaintiff later
fell. (E. Thomas Dep. 59:3–11.) The base of the fountain was a circular pool, approximately
five feet in diameter and approximately one foot deep, with a raised ledge around it. (Broce Dep.
11:23–12:5, Dkt. No. 47-6; e.g., Pl.’s Ex. 7, Dkt. No. 47-7.) In the middle of the pool was a
shallow bowl on a raised pedestal, standing approximately three feet high. (Broce Dep. 11:16–
22; Pl.’s Ex. 7.) Omni employees described the fountain as a “bubbling type” fountain, where
water fills the upper bowl from the top of the fountain, and then cascades from the upper bowl
into the reservoir at the fountain’s base. (Broce Dep 12:12–14; Shober Dep. 21:14–16, Dkt. No.
47-5.) Surrounding the fountain was a walkway made of a white textured material similar to
cement. (Shober Dep. 22:14–23:10.) The walkway and fountain area were at least partially
covered by a roof, and partially surrounded by the spa building and a gate to the rest of the
homestead property. (Pl.’s Exs. 7–8; Broce Dep. 12:15–25; Shober Dep. 12:2–13:11.) The gate
was typically opened in the morning by spa employees, who would also visually inspect the
fountain area. (Shober Dep. 14:6–16:3.) That morning, the fountain was running and there were
icicles hanging from the fountain’s upper bowl. (Broce Dep. 10:1–3, Pl.’s Ex. 8.) Neither
plaintiff nor her husband slipped as they walked by, and neither testified that they noticed ice on
the walkway. (E. Thomas Dep. 64:15–24.)
The Thomases returned from breakfast just before 9:30 a.m. and once again walked by
the fountain. (See Pl.’s Ex. 10, Dkt. No. 47-10; E. Thomas Dep. 66:1–14.) This time, plaintiff’s
feet “flew out from under [her]” and she fell, landing with her right side on the ledge of the
fountain and her right arm in the fountain. (E. Thomas Dep. 70:24–71:16.) She states that she

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fell on ice, although neither plaintiff nor Mr. Thomas ever saw ice in the area of plaintiff’s fall.1
(E. Thomas Dep. 66:1–14.) Around 10 a.m., roughly thirty minutes later, Omni employees who
went to inspect the fountain observed clear ice on a portion of the walkway around the fountain.
(Broce Dep. 8:17–24; 21:7–16.)
Thomas sues Omni, claiming that Omni was negligent in failing to maintain the fountain
and failing to remove ice from the area surrounding the fountain. (Amended Compl. ¶ 4, Dkt.
No. 11.) Thomas surmises that sometime during the night of November 12 or the morning of
November 13, 2013, the wind blew water from the fountain onto the surrounding walkway,
which froze and created a dangerous condition. (See generally Pl.’s Br. Opp’n, Dkt. No. 47.)
Omni moves for summary judgment, arguing that Thomas has failed to establish that Omni had
notice of the dangerous condition. Thomas contends in her brief that the evidence is sufficient to
show that Omni failed to make the icy walkway safe or remove the ice, failed to properly inspect
the walkway, and knew or should have know of the icy condition. (Id. at 1.)
II. DISCUSSION
A. Summary Judgment Standard
“Summary judgment is appropriate only if taking the evidence and all reasonable
inferences drawn therefrom in the light most favorable to the nonmoving party, ‘no material facts
are disputed and the moving party is entitled to judgment as a matter of law.’” Henry v. Purnell,
652 F.3d 524, 531 (4th Cir. 2011) (en banc) (quoting Ausherman v. Bank of Am. Corp., 352 F.3d
896, 899 (4th Cir. 2003)); see Fed. R. Civ. P. 56(a). If, after adequate discovery, the nonmoving
party “fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which the party will bear the burden of proof at trial,” such a failure

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For purposes of this motion, the court will assume that plaintiff slipped on ice.

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“necessarily renders all other facts immaterial,” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986), and “[t]he moving party is ‘entitled to summary judgment as a matter of law.’” Id.
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).
B. Analysis
Under Virginia law, which applies here, “‘[a]ll negligence causes of action are based on
allegations that a person having a duty of care to another person violated that duty of care
through actions that were the proximate cause of injury to the other person.’” Jarmak v. Ramos,
497 F. App’x 289, 291 (4th Cir. 2012) (quoting Steward ex rel. Steward v. Holland Family
Props., LLC, 726 S.E.2d 251, 254 (Va. 1991)); see Colonial Stores, Inc. v. Pulley, 125 S.E.2d
188, 189–90 (Va. 1962). Virginia law recognizes a special relationship between innkeepers and
guests, Taboada v. Daly Seven, Inc., 626 S.E.2d 428, 432 (Va. 2006), aff’d on reh’g, 641 S.E.2d
68 (Va. 2007), which imposes on innkeepers a heightened duty of care “to use the utmost care
and diligence of very cautious persons; and they will be held liable for the slightest negligence
which human care, skill and foresight could have foreseen and guarded against.” Norfolk & W.
R. Co. v. Birchfield, 54 S.E. 879, 883 (Va. 1906) (quoting Connell v. Chesapeake & Ohio Ry.
Co., 24 S.E. 467, 468 (Va. 1896)). However, this special relationship does not make an
innkeeper the insurer of a guest’s safety, Taboada, 626 S.E.2d at 433, and in order to recover, an
injured guest “must show that the owner had knowledge, actual or constructive, that a defect
existed and that such defect created an unsafe condition.” Roll ‘R’ Way Rinks, Inc. v. Smith, 237
S.E.2d 157, 161 (Va. 1977); see Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 452 (4th Cir.
2004); Taboada, 626 S.E.2d at 433; see also Jarmak, 497 F. App’x at 294.

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“Because an innkeeper owes a duty of care to its guests to inspect and discover unsafe
conditions, it can be held liable to a guest under the theory of constructive notice.”2 Jarmak, 497
F. App’x at 293. Constructive notice “may be shown by evidence that the defect was noticeable
and had existed for a sufficient length of time to charge its possessor with notice of its [unsafe]
condition.” Hodge, 360 F.3d at 454 (quoting Grim v. Rahe, Inc., 434 S.E.2d 888, 890 (Va.
1993)) (alteration in original); Jarmak, 497 F. App’x at 294. If plaintiff fails to come forward
with evidence showing that the dangerous condition both existed for a sufficient amount of time
and was discoverable upon an adequate inspection, Omni is entitled to summary judgment.
Jarmak, 497 F. App’x at 294; see Hodge, 360 F.3d at 451; Logan v. Boddie-Noell Enters., No.
4:11-cv-8, 2012 U.S. Dist. LEXIS 5345, at *16 (W.D. Va. Jan. 18, 2012); Grim, 434 S.E.2d at
890 (“Hence, if the evidence fails to show when a defect occurred on the premises, the plaintiff
has not made out a prima facie case.”). “Although constructive notice cannot be established by
mere speculation, it is usually, if not always, established by circumstantial evidence.” Jarmak,
497 F. App’x at 293 (citations omitted).
Both parties rely heavily on Jarmak, an unpublished Fourth Circuit case. In that case, the
plaintiff (Jarmak) rented a cabin for several days from Ramos, the owner, notifying Ramos that
he intended to use a cotton rope hammock hung between two trees in Ramos’s backyard. Id. at
290. When Jarmak sat on the hammock, the ropes snapped and he fell to the ground. Id. After
falling, Jarmak noticed that the snapped ropes were frayed, and left a note to Ramos stating that
the ropes were rotted and some had snapped. Id. Ramos testified that, although she looked at
the hammock on a regular basis, she was not sure when she last inspected it or used it before
Jarmak’s rental. Id. at 290–91. She further testified that her inspections of the hammock
involved looking at it when she was doing yard work in the vicinity. Id. at 291.
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Plaintiff does not contend that Omni had actual notice of the ice around the fountain.

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Vacating the district court’s grant of summary judgment to Ramos, the Fourth Circuit
noted that, as an innkeeper, Ramos owed a heightened standard of care to Jarmak, her guest. Id.
at 292. That duty encompassed a “duty to inspect the premises to determine if and when repairs
[were] needed.” Id. at 292 (quoting Gumenick v. United States, 193 S.E.2d 788, 795 (Va.
1973)). Pointing to evidence that Ramos knew the ropes of the hammock could deteriorate over
time when exposed to nature and knew Jarmak intended to use the hammock, the court
determined that a jury could reasonably find Ramos’s inspection of the hammock inadequate. Id.
at 293–94.
That conclusion did not end the court’s inquiry, however, “because ‘a negligent failure to
inspect does not result in the imposition of liability unless it is established that a reasonable
inspection would have disclosed the presence of the defect which caused the harm.’” Id. at 294
(quoting United States v. Moran Towing & Transp. Co., 409 F.2d 961, 963 (4th Cir. 1969)).
Accordingly, the court engaged in a constructive notice analysis, asking whether the unsafe
condition—the frayed and rotten hammock ropes—had “existed for a sufficient period of time
before Jarmak fell and was detectable upon an adequate inspection.” Id. at 294. The court found
that because ropes ordinarily fray and rot “over a considerable period of time,” a reasonable jury
could conclude that a reasonable inspection would have revealed the hammock’s unsafe
condition. Id. at 295.
Omni argues that, unlike the plaintiff in Jarmak, plaintiff has no evidence that Omni had
constructive knowledge of icy conditions around the fountain. Plaintiff, relying on Jarmak,
argues extensively that Omni’s inspection was inadequate. However, as Jarmak makes clear,
Omni can be liable here only if it had constructive notice of a dangerous condition that an
adequate inspection would have revealed. Id. at 294; see also Harrison v. Kroger Co., 737 F.

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Supp. 2d 554, 557 (W.D. Va. 2010); Ashby v. Faison & Assocs., Inc., 440 S.E.2d 603, 605 (Va.
1994). Stated otherwise, plaintiff must establish constructive notice regardless of whether
Omni’s inspection of the premises was adequate.
In this case, plaintiff has failed to establish constructive notice because she has not shown
that the ice around the fountain had existed for a sufficient period of time. Although evidence
suggests that the conditions necessary for ice to form (i.e., sub-freezing temperatures) had
existed for some time, that evidence does not show when the specific ice on which she fell
formed. See Hodge, 360 F.3d at 454 (requiring constructive notice of the specific condition that
caused the injury). Even assuming that the ice came from water blown from the fountain, as
Thomas suggests,3 that event easily could have occurred shortly before plaintiff slipped: indeed,
evidence that plaintiff and her husband walked by the same fountain less than an hour before her
fall—without slipping or noticing ice—supports that conclusion. Because a jury could reach the
conclusion that the ice had existed for a sufficient period of time only through “surmise,
speculation and conjecture,” Colonial Stores, 125 S.E.2d at 190, this theory is insufficient to
survive summary judgment.
At the hearing on Omni’s motion, plaintiff argued that because water takes time to freeze,
a jury could infer that the ice on which she slipped had been there for a substantial amount of
time. Plaintiff offers no authority for this position, and the court declines to accept it. The
Supreme Court of Virginia and this court have both applied ordinary constructive notice
principles to ice, requiring plaintiffs to provide evidence of how long the ice had been there. See
Adkison v. Frizzell, No. 1:11-cv-89, 2012 U.S. Dist. LEXIS 113810, at *8–9 (W.D. Va. Aug. 14,

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There is no evidence of how the ice came to be in the area around the fountain. As Thomas suggests, it
could have been blown by the wind from the fountain; as Omni suggests, plaintiff could have splashed water from
the fountain during her fall with ice forming after the fall; or a guest could have spilled water while walking near the
fountain. We simply do not know.

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2012) (granting summary judgment against a plaintiff who slipped on ice in a parking lot where
the plaintiff failed to establish when the ice formed); Cannon v. Clarke, 167 S.E.2d 352, 355
(Va. 1969) (setting aside a jury verdict and entering judgment in favor of defendants where
plaintiff offered no evidence as to how long ice on the defendant’s porch had been there).
Furthermore, plaintiff has not shown that the ice at issue here would have taken a significant
time to form. While the evidence in the record indicates that the temperature was well below
freezing on the morning plaintiff fell, there is no evidence regarding the size or thickness of the
ice found after plaintiff’s fall. Because plaintiff has not shown that that the ice on which she fell
existed for long enough to charge Omni with constructive notice, her claim must fail.
At the hearing, Thomas also argued that Omni created the dangerous condition through
its own affirmative conduct, though the theory was not alleged in the amended complaint or
argued in her brief.4 In Virginia, when a premises owner affirmatively creates a dangerous
condition, courts apply a foreseeability standard and impute notice on the owner of reasonably
foreseeable dangers resulting from the conduct. Harrison, 737 F. Supp. 2d at 557; Memco
Stores, Inc. v. Yeatman, 348 S.E.2d 228, 231 (Va. 1986); see Ashby, 440 S.E.2d at 604–05. In
such cases, the premises owner is “charged with constructive knowledge of the risk because it
‘had a duty to exercise reasonable care to avoid the genesis of the danger.’” Austin v. Shoney’s,
Inc., 486 S.E.2d 285, 288 (Va. 1997) (quoting Yeatman, 348 S.E.2d at 231).
Thomas claims that Omni had notice under this foreseeability test because it affirmatively
caused the dangerous condition. The court disagrees. First, it is unclear what plaintiff alleges to
be Omni’s affirmative conduct—placing a water fountain in a partially covered and partially
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While Thomas’s brief included the phrase “genesis of this danger” (Pl.’s Br. Opp’n 1) and mentioned that
Omni’s “failure to turn the fountain off in the presence of subfreezing temperatures created the situation where ice
could be present in the area of the walkway and fountain . . . ” (id. at 13), those statements were made in the context
of her argument that Omni conducted an inadequate inspection.

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screened outdoor area, failing to turn the water off when it was cold outside, or continuing to run
the water when it was cold outside. See Ashby, 440 S.E.2d at 605 (contrasting affirmative and
passive conduct).
Second, even assuming that Omni engaged in some affirmative conduct, plaintiff presents
no evidence that ice on the walkway was foreseeable. Unlike the cases where foreseeability was
found, there is no evidence that the fountain here could cause water or ice to accumulate on the
surrounding walkway. See O’Brien v. Everfast, Inc., 491 S.E.2d 712, 715 (Va. 1997) (finding
danger foreseeable where a bolt of fabric was leaning against a cutting table, in plain view of a
salesperson, and store policy prohibited the practice for safety reasons); Holcombe v.
NationsBanc Fin. Servs. Corp., 450 S.E.2d 158, 159–60 (Va. 1994) (finding danger foreseeable
where partitions were stored in a bathroom despite defendant’s branch manager’s knowledge that
they might “topple”); Yeatman, 348 S.E.2d at 231 (finding danger foreseeable where a
merchandiser of pepromia plants moved a plant forom its normal outside location, causing a leaf
to fall, and where an expert testified regarding the effect of temperature changes on leaves).
Here, the undisputed testimony of Omni employees was that they had never observed the
fountain causing splashes, condensation, or moisture on the walkway around it. (Broce Dep.
12:9–14; Shober Dep. 34:18–23.) Plaintiff has not introduced evidence showing the wind
speeds necessary to blow water from the fountain, or that the fountain was exposed to
sufficiently strong winds.5 See Tompa v. 767 Fifth Partners, LLC, 979 N.Y.S.2d 288, 289–90
(N.Y. App. Div. 2014) (affirming summary judgment on largely analogous facts). Furthermore,
even assuming that wind could and did blow water from the fountain, as plaintiff suggests, the
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In opposition to Omni’s motion, plaintiff submitted certified weather data purporting to show that it was
consistently windy and below freezing from the evening of November 12, 2013, until the time when plaintiff
tripped. (See Pl.’s Ex. 4, Dkt. No. 47-4.) Because the weather data was collected at an airport roughly 1,500 feet
above the Homestead in elevation, and because the fountain area was sheltered, the court finds that these records are
irrelevant to the weather conditions at the site of plaintiff’s fall and will not consider them.

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court cannot conclude that this was foreseeable because Omni employees testified that they had
never received complaints of ice or water around the fountain. (Shober Dep. 41:4–16.)
Accordingly, plaintiff’s claim cannot survive summary judgment on this theory either.
III. CONCLUSION
For the foregoing reasons, the court will grant Omni’s motion for summary judgment.
An appropriate order will be entered.
Entered: March 7, 2017.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

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