United States District Court, E.D. Virginia, Newport News Division
OPINION AND ORDER
DOUGLAS E. MILLER, Magistrate Judge.
This matter is before the Court on Kroger's Motion for Summary Judgment. (ECF No. 9). Crystal Douglas ("Douglas") alleges that she slipped and fell in a puddle of water on the floor of a Kroger store in Yorktown, Virginia on July 29, 2010, sustaining serious injuries. Douglas claims that the puddle was a dangerous and defective condition and was due to Kroger's negligence. Kroger argues that despite having no notice of the puddle, it nonetheless discharged its duty to warn by placing warning cones in the area in anticipation of slippery conditions due to heavy rain. By failing to heed that warning, Kroger asserts, Douglas was contributorily negligent as a matter of law. After considering the parties' briefs, exhibits and oral argument, and viewing the facts in the light most favorable to Douglas, reasonable jurors could conclude Kroger was negligent and that Douglas' failure to see the puddle was not for lack of ordinary care. Accordingly, for the reasons set forth in detail below, the Court denies Kroger's Motion for Summary Judgment.
I. FINDINGS OF MATERIAL FACT
On July 29, 2010, Douglas, in the midst of a heavy rain storm, was shopping in a Kroger store in Yorktown, Virginia. As she was leaving, she slipped and fell in a puddle of water located immediately next to a mat near the produce-side exit. As a result of her fall, she injured her wrist and leg. (ECF Nos. 10-2 at 36-37, 10-3 at 73).
After her fall, Douglas described being "soaked with water." (ECF No. 10-2 at 39). Additionally, although she had not seen anything dripping while she was walking towards the exit, immediately after her fall she noticed "a lot of water" on the floor, and observed a "steady flow" of water dripping from the ceiling. (ECF Nos. 10-2 at 40, 47, 10-3 at 55). Douglas was eventually assisted by a Kroger Employee, Roland Walker ("Walker"), who apologized for her accident, explaining that the site of her fall had been "a problem area." (ECF No. 10-2 at 43). According to Douglas, Walker indicated that although he had not seen any water in that specific location on that date, the roof in that part of the store was known to leak during heavy rain. (ECF No. 10-3 at 64).
Richard Abernathy ("Abernathy"), Kroger's co-manager at the time of the accident, was not present when Douglas fell. In depositions, he recalled no prior instances where water leaked from the roof at the specific location of Douglas' fall. (ECF No. 10-6 at 15). Abernathy first testified to leaks in only one area of the store, located at the opposite end from the produce area. Id . After a later review of the store's maintenance records, however, Abernathy was deposed a second time, and testified that three areas of the store's roof had actually been repaired prior to the incident, "specifically in the areas of the back room receiving area, the floral department, and also the cart corral foyer." (ECF No. 15-1 at 10). He still maintained none of these repaired areas of the roof encompassed the area of Douglas' fall. Id.
Prior to leaving work on the date of the incident, Abernathy observed wet floor signs on display by the entrance in the produce section, a practice he described as standard procedure at each of the two entrances to the store once it started to rain to warn of potentially slick conditions associated with water tracked in from customer traffic. (ECF No. 10-6 at 10-11). Surveillance footage of the accident shows one yellow cone on display several feet to the inside of the security scanners and sliding door entrance to Kroger's produce section. What appears to be a rubber-bottomed floor mat lies between the scanners, and a stack of hand baskets is situated directly to the right of the right-hand scanner. As the video progresses, Douglas walks several feet to the inside of the cone, immediately in front of the stack of baskets. She slips and falls directly in front of the right scanner. Photographs taken shortly after Douglas' accident show pooled water directly in front of the right-most scanner and to the right of the rubberized mat the location where Douglas appears to have fallen. The same photographs show little to no water being tracked into the store onto areas not covered by the floor mat.
After the fall, Douglas is seen leaving the frame of the video, presumably to find Walker or another Kroger employee. Before the two return, another customer enters the store, pauses, and looks up to the ceiling and then to the spot where Douglas fell before walking around it. Douglas then reappears and shows Walker the spot. Walker leaves and returns with a small trashcan approximately one minute later, placing the can slightly to the right of where Douglas fell. Walker also steps into the cart corral/foyer area and glances at the ceiling. He then repositioned the cone so that it was directly next to the trashcan in the general area of the accident and placed another trashcan in the cart corral/foyer.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 requires the Court to grant a motion for summary judgment if "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); Celotex Corp. v. Catrett , 477 U.S. 317, 322-24 (1986). "A material fact is one that might affect the outcome of the suit under the governing law.' A disputed fact presents a genuine issue if the evidence is such that a reasonable jury could return a verdict for the non-moving party.'" Spriggs v. Diamond Auto Glass , 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). If there is no genuine issue as to any material fact, "[t]he moving party is entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. , 477 U.S. at 323.
The party seeking summary judgment has the initial burden of informing the Court of the basis of its motion and identifying materials in the record it believes demonstrates the absence of a genuine dispute of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. , 477 U.S. at 322-25. When the moving party has met its burden to show that the evidence is insufficient to support the nonmoving party's case, the burden shifts to the nonmoving party to present specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986).
In considering a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150 (2000); see Anderson , 477 U.S. at 255. "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249.
Courts sitting in diversity apply the forum state's substantive law. Erie R.R. Co. v. Tompkins , 304 U.S. 64, 78 (1938). In Virginia, the rules applicable to slip-and-fall cases are "well settled." Winn-Dixie Stores, Inc. v. Parker , 240 Va. 180, 182, 396 S.E.2d 649, 650 (1990). A store owner owes its customers a duty to exercise ordinary care towards them while they are on the premises. Id . This duty requires an owner to maintain the store's premises in a reasonably safe condition and to warn a customer of any unsafe condition that either was or should have been known to the owner. Colonial Stores Inc. v. Pulley , 203 Va. 535, 537, 125 S.E.2d 188, 190 (1962). "An owner of the premises, however, is not an insurer of the invitee's safety. The invitee must look out for open and obvious' dangers." Newcomb v. Food Lion, Inc., 94 F.3d 642, ...