United States District Court, W.D. Virginia, Big Stone Gap Division
CARMON T. GILLY, Plaintiff,
DOLLAR GENERAL STORE, ETC., Defendant.
Henry S. Keuling-Stout, Keuling-Stout, P.C., Big Stone Gap, Virginia, for Plaintiff.
Holly N. Mancl, Penn, Stuart & Eskridge, P.C., Bristol, Tennessee, for Defendant.
OPINION AND ORDER
JAMES P. JONES, District Judge.
In this diversity action, removed from state court, the plaintiff Carmon T. Gilly seeks recovery for injuries suffered when she tripped and fell while a customer in a store operated by the defendant, Dolgencorp, LLC, doing business as Dollar General. Following discovery the defendant has moved for summary judgment, contending that under applicable Virginia law, Mrs. Gilly is barred from recovery by virtue of her own contributory negligence.
The Motion for Summary Judgment has been briefed and argued and is ripe for decision. For the following reasons, it will be denied.
An award of summary judgment is appropriate where there is no genuine dispute as to any material fact such that one party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In deciding a motion for summary judgment, the court must assess the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the non-moving party. Nguyen v. CNA Corp., 44 F.3d 234, 237 (4th Cir. 1995).
Virginia substantive law governs this diversity claim. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). Under that law, a plaintiff who falls and injures herself as the result of an open and obvious danger is guilty of contributory negligence and is barred from any recovery. Scott v. City of Lynchburg, 399 S.E.2d 809, 810 (Va. 1991). This principle holds true even when the plaintiff did not see the open and obvious defect in the premises. See Rocky Mount Shopping Ctr. Assocs. v. Steagall, 369 S.E.2d 193, 194 (Va. 1988). The question is "whether [the] plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances." Artrip v. E.E. Berry Equip. Co., 397 S.E.2d 821, 824 (Va. 1990). Thus, contributory negligence is ordinarily a factual issue for the jury to decide, unless reasonable minds could not differ as to the conclusion. Estate of Moses v. Sw. Va. Transit Mgmt. Co., 643 S.E.2d 156, 160 (Va. 2007). It is an affirmative defense which the defendant must prove by a preponderance of the evidence. Artrip, 397 S.E.2d at 823.
The material facts, as shown by the summary judgment record, are as follows.
On June 28, 2012, at approximately 9:00 a.m., Mrs. Gilly, a fifty-nine-year-old school teacher went inside the Dollar General store in Big Stone Gap, Virginia. She had frequented the store many times before. Her hands were empty, she was not pushing a shopping cart, and the store was well lit.
After entering the store, Mrs. Gilly walked down a main aisle. Part way down, she turned right to walk around an end cap and into a narrow cross aisle. As she did so, she tripped over a cardboard box containing bottles of Hawaiian Punch that had been placed at or near the right corner of the aisle that she was entering. No one observed her fall.
The aisle where Mrs. Gilly fell was thirty-five inches wide. She estimates that the box was twelve to eighteen inches in length, width, and height, leaving twenty-three inches of unobstructed aisle at most.
Mrs. Gilly did not see the box prior to her fall. She was looking forward at merchandise on the shelves as she came around the end cap and tripped. She stated that she fell as soon as she turned the corner. She did not look down as she came around the end cap. When asked if she would have seen the box had she looked at the floor, she responded, "Possibly." She explained, "If I had looked directly at it, I mean if I had looked in the vicinity ...