Opinion
Case No. 6:20-cv-00072
2021-12-07
Jeanne MARSHALL, Plaintiff, v. WALMART, INC., Defendant.
James Ben Feinman, Blake Huddleston, James B. Feinman, Attorney at Law, Lynchburg, VA, for Plaintiff. C. Kailani Memmer, Victor S. Skaff, III, Glenn Robinson Cathey Memmer & Skaff, PLC, Roanoke, VA, for Defendant.
James Ben Feinman, Blake Huddleston, James B. Feinman, Attorney at Law, Lynchburg, VA, for Plaintiff.
C. Kailani Memmer, Victor S. Skaff, III, Glenn Robinson Cathey Memmer & Skaff, PLC, Roanoke, VA, for Defendant.
MEMORANDUM OPINION & ORDER
NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE
Jeanne Marshall brought this premises liability action to recover for slip-and-fall injuries sustained at a Walmart retail store in Lynchburg, Virginia. Currently before the Court is Walmart's motion for summary judgment. In support of its motion, Walmart argues that Marshall failed to produce facts in discovery from which a rational jury could find that Walmart had actual or constructive knowledge of the hazard that caused her fall. Because Marshall has evidence that at least one Walmart employee knew of the hazard and had unsuccessfully admonished his manager to address it prior to Marshall's fall, the Court will deny the motion.
I.
The following facts are recounted from the record in the light most favorable to Marshall, the party opposing summary judgment. See Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (reiterating the applicable standard of review). On the evening of October 4, 2018, Marshall was shopping at Walmart with her daughter, Jacquetta Cook. Security footage shows them arrive outside the bathrooms at 6:14:12 p.m. Marshall is riding an electronic cart, with her daughter walking beside her. Marshall can be seen exiting the cart and begin walking, with the assistance of a cane, the "six to ten feet" to the bathrooms. Dkt. 15, Ex. 1 ("Marshall Deposition"), p. 53. A few seconds later, at approximately 6:15:03 p.m., she collapses. Marshall later testified that after taking a few steps her cane "started sliding and then [her] foot fell and [she] went all the way down." Id. at 62. Marshall clarified that her head hit the ground, followed by her shoulder, hip, and knee. Id. at 23–25. Marshall and her daughter also testified that Marshall's pants were wet after she fell onto the floor. Id. at 64; Dkt. 15, Ex. 2 ("Cook Deposition"), p. 18.
No liquid can be seen in the video. And neither Marshall nor Cook can recall seeing anything on the floor before or after the incident. Marshal Deposition, pp. 59, 62, 64, 114; Cook Deposition pp. 18, 20–21, 24. Nor do they know how any liquid might have gotten on the floor or how long it might have been there. Marshall Deposition, pp. 66, 115; Cook Deposition, p. 25–26, 29.
However, after being assisted into the bathroom, Marshall noticed a standing pool of water below the sink and a stall; only a few steps from where Marshall fell. Marshall Deposition, p. 72. Cook also testified that there was a pool of water on the restroom floor. Cook Deposition, p. 25. And Marshall testified that a Walmart employee on break assisted her into the restroom specifically because of the employee's and other customers' concern about the state of the bathroom. See Marshall Deposition, p. 70–72. During their exchange, the employee told Marshall that she did not want to work on the cleaning crew because "they don't want to clean." Id. at 71. Another customer told this employee to "go see how bad" the bathrooms looked before helping Marshall in. Id. at 70. Later, Marshall witnessed a conversation between the store manager and an unidentified employee who apparently was responsible for the store's cleaning crew. Marshall heard the employee tell the manager: "you got on me for being so hard on them cleaning the bathroom. But I told you, they need to be checked every ten minutes, because people go in and don't dry their hands and shake the water off." Id. at 80.
II.
Summary judgment is appropriate where "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). A genuine issue of material fact exists only where the record, taken as a whole, could lead a reasonable jury to return a verdict in favor of the nonmoving party. Ricci v. DeStefano , 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). In making that determination, the Court must take "the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Henry v. Purnell , 652 F.3d 524, 531 (4th Cir. 2011) (en banc).
Nevertheless, a party opposing summary judgment "may not rest upon the mere allegations or denials of his pleading but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (cleaned up). Moreover, "[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247–48, 106 S.Ct. 2505. The non-moving party must produce "significantly probative" evidence from which a reasonable jury could return a verdict in his favor. Abcor Corp. v. AM Int'l, Inc. , 916 F.2d 924, 930 (4th Cir. 1990) (quoting Anderson , 477 U.S. at 249–50, 106 S.Ct. 2505 ).
III.
A.
The main thrust of Walmart's argument is that Marshall has not produced evidence from which a reasonable jury could find that Walmart was on notice of a dangerous condition. The Court disagrees.
Virginia law governs this diversity action. See Erie R.R. v. Tompkins , 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In Virginia, the law applicable to slip-and-fall cases is well settled: a store owner, like Walmart, "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 , 227 Va. 341, 315 S.E.2d 385, 388 (1984). This duty has been summarized as follows:
The store owner owed the customer the duty to exercise ordinary care toward her as its invitee upon its premises. In carrying out this duty it was required to have the premises in a reasonably safe condition for her 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 placed there; to warn the customer of the unsafe condition if it was unknown to her, but was, or should have been, known to the store owner.
Winn-Dixie Stores, Inc. v. Parker , 240 Va. 180, 396 S.E.2d 649, 650 (1990) (cleaned up) (quoting Colonial Stores v. Pulley , 203 Va. 535, 125 S.E.2d 188, 190 (1962) ). In short, a store owner must take reasonable precautions to protect its customers from fall-hazards.
The reasonableness of a precaution is measured, in part, by whether a store owner can reasonably be expected to know of a hazard. Thus, "[i]n premises liability cases, the plaintiff must introduce evidence of the [proprietor's] actual or constructive knowledge of a defective condition on the premises to establish a prima facie case of negligence." Grim v. Rahe, Inc. , 246 Va. 239, 434 S.E.2d 888, 889 (1993). Actual knowledge can be demonstrated by circumstantial evidence that the store owner or his employees were aware of the hazard. In Noel v. Wal-Mart Stores East LP , for example, summary judgment was denied in a slip-and-fall case based on the store manager's statement that "someone was supposed to clean that up." No. 4:18-cv-27, 2019 WL 638370, at *3 (W.D. Va. Feb. 14, 2019) (Kiser, J.). The court reasoned that a rational jury could infer from this statement that the manager was aware of the spill before the plaintiff's fall. Id.
In the absence of actual knowledge, notice can be satisfied in one of two ways. First, the plaintiff may establish constructive knowledge with "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 v. Wal-Mart Stores, Inc. , 360 F.3d 446, 454 (4th Cir. 2004) (alterations original) (quoting Grim , 434 S.E.2d at 890 ). Second, the plaintiff may impute knowledge on a store owner where the owner's own affirmative conduct created a foreseeable risk of harm of the type suffered by the plaintiff. See Logan v. Boddie-Noell Enters., Inc. , No. 4:11-cv-8, 2012 WL 135284, at *5 (W.D. Va. Jan. 18, 2012) (Kiser, J.) ("Where the premises owner's own affirmative conduct causes the unsafe condition, notice of the condition is imputed to the owner provided the danger is reasonably foreseeable.") (citing Harrison v. The Kroger Co. , 737 F. Supp. 2d 554, 557 (W.D. Va. 2010) (Urbanski, J.)).
To demonstrate constructive knowledge, a plaintiff must offer compelling evidence of how long the specific hazard was present. " ‘[A]ppearance of an item" alone "cannot be used to infer that it had been on the floor long enough’ to create constructive notice." Thomas v. Omni Hotels Mgmt. Corp. , 742 F. App'x. 729, 732 (4th Cir. 2018) (citing Powers v. Wal-Mart Stores, Inc. , No. 2:05-cv-70, 2006 WL 2868320, at *4 (W.D. Va. Oct. 5, 2006) (Williams, J.)). In Winn-Dixie , for example, the Supreme Court of Virginia set aside a jury verdict for a plaintiff who slipped on a snap bean because the plaintiff failed to offer evidence of how long the bean had been permitted to remain on the floor. 396 S.E.2d at 651 (reasoning that without any showing of the length of time the bean may have been on the floor, it "is just as logical to assume that it was placed on the floor an instant before [Parker] struck it as it is to infer that it had been there long enough that [Winn-Dixie] should, in the exercise of reasonable care, have known about it.") (alterations original) (quoting Pulley , 125 S.E.2d at 190 ).
The amount of time a hazard persisted cannot be proven by a series of speculative inferences. In Thomas , the plaintiff slipped on a piece of ice that had formed in an Omni's outdoor walkway. 742 F. App'x at 731. The plaintiff asked the Court to infer that the ice had been there for some time on the theory that
(i) the ice on the walkway was formed by water blown out of the fountain by the wind, because conditions were windy as measured at the local airport at a significantly higher elevation, (ii) temperatures dropped below freezing the night before, and the fountain was running in the freezing temperature, (iii) ice takes time to form and this ice appeared thick approximately thirty minutes after Thomas's fall, and therefore (iv) Omni would
have discovered the ice before the fall had it looked.
Id. at 733. The Fourth Circuit rejected her argument, reasoning that "genuine issues of material fact cannot be based on mere speculation or the building of one inference upon another." Id. (internal quotation marks omitted).
The second method of proving notice, by imputation, applies where the store owner's own affirmative conduct created the dangerous condition. Store owners are subject to a duty to remove hazards created by their own affirmative conduct if an ordinarily prudent person could have foreseen a risk to customers. In Memco Stores, Inc. v. Yeatman , a store employee relocated certain succulents known to shed their leaves when disturbed. 232 Va. 50, 348 S.E.2d 228 (1986). Given the nature of the plant and the store, the Supreme Court of Virginia concluded that it was foreseeable to the store that a slippery leaf could fall on the floor, and that this foreseeability gave rise to a duty in the store to use reasonable care to prevent leaves from falling and remove those that had:
[T]he jury could have found that Memco, a merchandiser of peperomia plants, should have known that a change in location, temperature, and light would cause such a succulent plant to shed moist leaves; that Memco positioned the plant on the furniture display in such a manner that the leaves could and did fall in the aisle; that Memco should have foreseen that this would create a risk of harm to customers using the aisle; that Memco violated its duty to have its premises in a reasonably safe condition; and, consequently, that Memco was guilty of negligence which was the proximate cause of the injuries Mrs. Yeatman suffered.
Id. at 231. The Virginia Supreme Court later articulated Memco 's holding as a manner of imputing notice to store owners. See Austin v. Shoney's Inc. , 254 Va. 134, 486 S.E.2d 285, 288 (1997) (holding that because "the hazardous condition was affirmatively created by the property owner" the defendant could be "charged with constructive knowledge of the risk because it ‘had a duty to exercise reasonable care to avoid the genesis of the danger.’ ") (citing Memco , 348 S.E.2d at 231 ). It also clarified that only affirmative conduct, as opposed to a failure to act, on the part of a store owner will support an imputed knowledge theory. See Ashby v. Faison & Associates, Inc. , 247 Va. 166, 440 S.E.2d 603, 605 (1994) (rejecting Memco 's applicability where there was "no evidence of affirmative conduct on the part of the defendants that caused water to collect on the lobby floor.").
The Fourth Circuit applied Memco in Goehler v. Wal-Mart Stores, Inc. , 229 F.3d 1142 (4th Cir. Aug. 17, 2000) (per curiam) (unpublished). The panel held that a rational jury could find notice from Walmart's placement of soap dispensers over the floor rather than the sink because of the foreseeable risk that the soap would pool on the floor creating a slip hazard. Id. at *2. Similarly, in Green-Geter v. Wal-Mart Stores East, LP , the court denied summary judgment on evidence that store employees had left the clear plastic wrap that caused the plaintiff's fall. No. 3:19-cv-79, 2021 WL 4487138, at *3 (W.D. Va. Sept. 30, 2021) (Moon, J.).
In this case, a rational jury could find actual knowledge from the statement of an employee, who was apparently in charge of the cleaning crew, that the bathrooms needed "to be checked every ten minutes, because people go in and don't dry their hands and shake the water off." Placed alongside that employee's reproach that he had told the manager of the problem and had been rebuffed in his efforts to address it, this case looks a lot like Noel. Just as a sensible jury could infer actual notice from the manager's statement in Noel that "someone was supposed to clean that up", a sensible jury could conclude from this employee's statement that Walmart personnel were actually aware of a constant hazard in the bathroom, and that the hazard had not been addressed as at least one employee knew it needed to. "Once a business owner is aware of a dangerous condition on its premises, it is obligated to either warn invitees of or remedy the situation." Noel , 2019 WL 638370 at *3.
B.
Walmart also argues that Marshall failed to produce evidence that a hazardous condition caused Marshall to fall. This argument lacks merit. From the testimony of Marshall and Cook—that Marshall's pants were dry before she fell and wet after she fell; that Marshall's cane slipped inexplicably; and that there was a pool of water in the women's bathroom just feet away—a jury reasonably could find that an accumulation of water in the corridor between the bathrooms caused Marshall's fall. Compare Sedar v. Reston Town Center , 988 F.3d 756, 764 (4th Cir. 2021) (reversing award of summary judgment in favor of the defendant even without direct evidence that a loose brick was the cause of plaintiff's fall, but where there was circumstantial evidence in the form of witness testimony about her path of travel over the brick, the path of blood stains in line with the brick, a gray scuff on plaintiff's shoe that had not been there before, and the manner of her fall).
The Court also notes the striking degree of concern about the state of the bathrooms expressed by other customers and the employee who eventually helped Marshall inside—which evidence could further substantiate a basis for a reasonable jury to find the existence of a hazardous condition that caused Marshall to fall. Cf. Fobbs v. Webb Bldg. Ltd. P'ship , 232 Va. 227, 349 S.E.2d 355, 356 (1986) ("Obviously, facts need not be proved by direct evidence, but instead, may be established by circumstantial evidence. Indeed, a jury may draw all reasonable inferences and deductions from the evidence adduced."). A rational jury could find that the water in the bathroom was tracked a few feet away into the corridor.
To close the loop, a rational jury could also find proximate cause—that it was reasonably foreseeable that the water in the bathrooms, a dangerous condition Walmart had actual knowledge of, could be tracked a few feet away into the corridor and cause someone to fall there. See Montgomery Ward & Co. v. Young , 195 Va. 671, 79 S.E.2d 858, 860 (1954) (premises owners are liable for "natural and probable" results of breaches of their duty of care to invitees).
IV.
Defendant's motion for summary judgment, Dkt. 14, is DENIED.
It is so ORDERED .