Diggs v. Wal-Mart Stores East, LP et al
MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on March 8, 2018. (ca)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
MARY A. DIGGS,
CASE NO. 6:17-cv-00026
WAL-MART STORES, INC., ET AL.,
JUDGE NORMAN K. MOON
This is a slip-and-fall case, based on diversity jurisdiction, to which Virginia law applies.
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). The defendants seek summary judgment, arguing
that Plaintiff Mary Diggs lacks evidence of causation and of defendants’ notice of the alleged
unsafe condition, and that in any event she was contributorily negligent. The Court construes the
facts and reasonable inferences in Plaintiff’s favor. Celotex Corp. v. Catrett, 477 U.S. 317, 322–
24 (1986). The only evidence in the record is the deposition of Plaintiff, as well as that of her
companion on the day in question. The facts drawn from this evidence are: Plaintiff slipped and
fell at the self-checkout scanner in Wal-Mart; after falling, she noticed a greasy spot on her
pants; a Wal-Mart employee came over from a nearby kiosk and made a statement to the effect
that a previous customer was eating chicken at the self-checkout scanner; the employee then
wiped up a four-to-five inch undisturbed puddle of what Plaintiff infers was chicken grease (and
on which she now argues is the substance she slipped).
For premises liability cases in Virginia, a negligence plaintiff must make a prima facie
showing that the owner had either constructive or actual notice of the unsafe condition. Hodge v.
Wal-Mart Stores, Inc., 360 F.3d 446, 453–54 (4th Cir. 2004); Winn-Dixie Stores, Inc. v. Parker,
240 Va. 180, 184 (1990); Roll ‘R’ Way Rinks, Inc. v. Smith, 218 Va. 321, 327 (Va. 1977). At
oral argument, Plaintiff’s counsel conceded that Plaintiff was not advancing an “actual notice”
theory, leaving her with Wal-Mart’s supposed constructive notice of the chicken grease. Under a
constructive notice theory, the plaintiff must show that the condition “existed for a sufficient
length of time to charge” the owner with notice of it. Hodge, 360 F.3d at 454 (summarizing
This principle makes counsel’s second concession—that one cannot tell from the
evidence how long the chicken grease was on the floor—fatal to Plaintiff’s case. All we know is
that the Wal-Mart employee stated another customer was eating chicken at the self-checkout
station (at which point the customer, by hypothesis, dropped the chicken grease) at some
unspecified “earlier” time. This bare hazard-then-fall sequence—while a metaphysical necessity
for slip-and-fall claims—is insufficient by itself to prove constructive notice. It “is as logical to
assume that” chicken grease existed on the floor only an “instant” or “moments” before
Plaintiff’s fall “as it is to infer that it had been long enough that [Wal-Mart] should, in the
exercise of reasonable care, have known about it.” Hodge, 360 F.3d at 454 (quoting Parker, 240
Va. at 184); e.g., Grim v. Rahe, Inc., 246 Va. 239, 242–43 (Va. 1993); Gauldin v. Va. WinnDixie, Inc., 370 F.2d 167, 170 (4th Cir. 1966); Colonial Stores Inc. v. Pulley, 203 Va. 535, 537–
38 (Va. 1962); Turley v. Costco Wholesale Corp., 220 F. App’x 179, 182 (4th Cir. 2007); Abbott
v. Kroger Co., 20 F. App’x 201, 201–02 (4th Cir. 2001).
Consequently, Plaintiff has no
negligence claim, and the defendants are entitled to summary judgment. The Clerk is directed to
send a copy of this opinion and the accompanying order to counsel of record.
Entered this _____ day of March, 2018.
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