Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Elliott v. Food Lion, LLC

United States District Court, E.D. Virginia, Alexandria Division

April 10, 2014

FOOD LION, LLC, Defendant.


LIAM O'GRADY, District Judge.

This negligence action arises from an alleged fall by the Plaintiff outside of a grocery store owned and operated by the Defendant. The matter comes before the Court on the parties' cross-motions for summary judgment as well as a number of additional pretrial motions. The Court heard argument from the parties on March 14, 2014. For the reasons stated below, the Plaintiff's Motion for Summary Judgment is DENIED. The Defendant's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.


The Plaintiff, William P. Elliott, is a Virginia resident. The Defendant, Food Lion, is a North Carolina Limited Liability Company operating a number of grocery stores in the Commonwealth of Virginia. The events giving rise to this action occurred on July 22, 2012. On that day Elliott entered the Food Lion store located in Sterling, Virginia. Elliott alleges that he had no problems entering the store. In particular, Elliott claims he walked up a ramp entering the store. His complaint states the walkway leading to the store entrance was "clean and dry; there was no hose or any other object on it. There were no markings or warnings of any sort around the ramp or store." See Plaintiff's Complaint, Dkt. No. 1 at ¶ 9. The crux of Elliott's complaint states that when he exited the store "his shopping cart struck [a] hose [and Elliott] was thrown forward over his shopping cart and down the ramp striking his right shoulder on the cement causing an acute fracture of the proximate shaft of his right humerus in the region of his reverse total shoulder arthroplasty." Id. at ¶ 2. Elliott initiated the current action seeking relief for these injuries, which he claims were the proximate result of Food Lion's negligence, conscious disregard, and reckless indifference to the consequences of placing the hose in front of the store entrance. In particular, Elliott argues Food Lion should be liable for failing to inspect the ramp, failing to warn him of the danger present, failing to keep the ramp free of obstructions, and creating a hazardous condition.

Videotape footage recorded on a Food Lion surveillance camera calls into question portions of Elliott's complaint. The footage captures a Food Lion employee taking what appears to be a black garden hose and laying it across the walkway leading to the store's entrance. The employee then proceeds to use the hose to begin cleaning the entryway and surrounding area. For the next several minutes the employee continues to clean the area while several store patrons travel over the visible hose as they enter and exit the sore. At around 11:12 am Elliott is seen entering the store. He appears to walk from the parking lot to the left of the entrance towards a trash can several feet in front of the entrance. He then enters straight into the store, walking directly over the hose in the process.

Approximately fourteen minutes later Elliott can be seen exiting the store while pushing a shopping cart in front of him. The garden hose is still visible to the camera, lying across the walkway Elliott took to enter the store. Instead of walking directly out of the store towards the trashcan along the same path he took upon entering, Elliott takes an immediate left turn on the walkway as soon as he exits the store's final set of sliding doors. To the left of these doors stands a large brick column. When Elliott exits the store and turns left he walks behind the column and is no longer visible to the camera. A few seconds later Elliott can be seen reentering the store without the shopping cart and rubbing his right arm in apparent pain.


I. Plaintiff's Motion to Amend Complaint

Elliott moves to amend his complaint pursuant to Fed.R.Civ.P. 15(a) in order to add a claim of negligence per se. Generally a plaintiff is freely given leave to amend a complaint under Rule 15(a) unless "the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment [is] futile." See Steinburg v. Chesterfield Cty. Planning Com'n., 527 F.3d 377, 390 ( quoting Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006)). Elliott's attempt to add a claim is a clear exception to the general rule in favor of amending because the proposed amendment is both futile and would be prejudicial to Food Lion.

The alleged facts giving rise to Elliott's entire law suit were known to him the moment he sustained his claimed injury; July 22, 2012, to be exact. Elliott filed his complaint on December 11, 2012. The parties agreed to a discovery schedule which provided a discovery deadline of October 25, 2013. The motion to amend was filed on February 3, 2014; four months after discovery closed, almost fourteen months after the complaint was filed, and close to nineteen months after Elliott sustained his injury. To reopen discovery at this late stage to allow Elliott to pursue a legal claim that appears futile would be extremely prejudicial to Food Lion. See Laber, 438 F.3d at 426 ("whether an amendment is prejudicial will often be determined by the nature of the amendment and its timing.").

A reasonable delay alone would not prevent the Court from granting Elliott's request to amend. See Davis v. Piper Aircraft Corp., 615 F.3d 606, 613 (4th Cir. 1980) ("Delay alone however, without any specifically resulting prejudice, or any obvious design by dilatoriness to harass the opponent, should not suffice as reason for denial."). But Elliott's delay is both prejudicial and unreasonable. Elliott argues that he was not able to raise this negligence per se claim at any point in the last year because the claim was not apparent until the parties began discovery. He simultaneously argues that if the amendment is allowed, Food Lion will not require any additional discovery to mount its defense. Neither proposition has much merit. Certainly Elliott could have brought a claim of negligence per se the moment he filed his initial complaint. Likewise, if the amendment were allowed, Food Lion would clearly deserve additional time to conduct its own discovery, investigation, and expert research in order to defend against the new claim.

Elliott's negligence per se claim is also futile. In order to succeed on this claim Elliott must show that: (i) Food Lion violated a statute that was enacted for public safety, (ii) he belongs to the class of persons the statute was meant to protect and the harm he suffered was of the type the statute was designed to protect against, and (iii) the statutory violation was a proximate cause of his injury. See Halterman v. Radisson Hotel Corp., 259 Va. 171, 176-77 (2000) (internal citations omitted). Elliott argues that Food Lion violated a wide array of random building, construction, and fire codes. But Elliott provides few reasons and even less case law for the proposition that he belongs to the class of persons meant to be protected by those codes or that his alleged injury was of the type the codes are intended to protect against. Consequently, based on the facts of this case, Elliott's negligence per se claim would be futile.

Because of the significant delay, and consequences of that delay, Food Lion would suffer prejudice if Elliott was allowed to amend his complaint to add a futile claim. Elliott's request to amend is therefore denied.

II. Cross-Motions for Summary Judgment

(a) Standard of Review

Summary judgment should be granted where the evidence in the record "show[s] that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). As the Supreme Court explained, "this standard provides that the 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute over an issue of material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Finally, in ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.