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Jefferson v. Kroger Limited

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

November 3, 2014



DAVID J. NOVAK, Magistrate Judge.

In this case, the Court must determine whether Defendant negligently caused Plaintiff's injuries by allowing a dangerous condition to exist at the entryway to its store, and by failing to warn Plaintiff of the danger posed by that condition. The Court must also determine whether Plaintiff was contributorily negligent. This matter comes before the Court by consent pursuant to 28 U.S.C. ยง 636(c)(1) on Defendants' Motion for Summary Judgment (ECF No. 10). For the reasons that follow, the Court GRANTS Defendants' Motion (ECF No. 10).


Sharon Jefferson ("Plaintiff") brings this action against Kroger Limited Partnership I and the Kroger Company (collectively "Defendants"), alleging negligence in relation to Plaintiff's fall at Defendants' store. (Defs.' Mem. in Supp. of Mot. for Summ. J. ("Defs.' Mem.") (ECF No. 11) at 1; Pl.'s Opp'n to Mot. for Summ. J. ("Pl.'s Opp'n") (Ea' No. 14) at 1.) The parties do not dispute the facts of this case. (Pl.'s Opp'n at 1.)

On May 4, 2011, Plaintiff went to the Kroger store located at 4816 South Laburnum Avenue in Richmond, Virginia. (Jefferson Dep. (ECF No. 11-1)[1] 31:4-6, Apr. 30, 2014.) After parking, Plaintiff approached the store and saw that it was under renovation. (Jefferson Dep. 33:7-22.) Plaintiff had visited this store location approximately once per month over the previous five to ten years, and had been there "one [other] time" during the renovation. (Jefferson Dep. 32:25-33:2.) As she walked towards the store, Plaintiff saw that the entrance on the left side of the store was blocked off, so she approached the automatic door to the right. (Jefferson Dep. 34:14-35:7.) Plaintiff had used the right-side door to enter and exit the store on previous occasions, but had not done so since the renovations began. (Jefferson Dep. 35:8-37:25.)

On the date in question, Plaintiff wore sandals with "chunky heel[s]" that were approximately two to three inches high. (Jefferson Dep. 38:11-39:12.) As she walked through the doorway to enter the store, "something caught and/or grabbed [her] foot and [she] fell flat into the store." (Jefferson Dep. 34:20-24, 42:20.) As a result of the fall, Plaintiff experienced bruising and swelling in her knees and toes, as well as pain in her shoulders, hands, knees and back. (Jefferson Dep. 55:17-20, 78:12-16, 79:20-80:5.) Before she fell, Plaintiff did not look down, did not see a groove in the ground and did not feel anything unusual. (Jefferson Dep. 48:25-49:7, 43:9-16, 48:20-24.)

After she fell, Plaintiff returned to the doorway area with the store manager. (Jefferson Dep. 43:15-16.) At that point, she noticed a "little groove" in the sidewalk located just outside of the store entrance, right next to the metal plate at the base of the automatic doors. (Jefferson Dep. 43:1-16, 62:10-63:2.) This was the first time that Plaintiff noticed the groove, which she described as being approximately a half-inch deep and approximately a quarter-inch wide. (Jefferson Dep. 43:5-16, 44:1-46:24.) The ground on either side of the groove was "pretty even, " and it ran the length of the door. (Jefferson Dep. 45:1-6, 46:22-23.)

Plaintiff concluded that she fell as a result of catching her shoe in the groove near the automatic door. (Jefferson Dep. 48:16-19, 49:8-10, 58:19-23.) She reached this conclusion based on the fact that her "toes were torn up" from her fall. (Jefferson Dep. 48:18-19.) Plaintiff stated that the only differentiating aspect of this groove in comparison to any other concrete expansion joint was that it was deep enough to catch her shoe. (Jefferson Dep. 63:14-20.) Nothing obstructed Plaintiff's view as she approached the store entrance from the parking lot, and Plaintiff stated that she could have seen the groove had she been looking. (Jefferson Dep. 64:2-10, 63:3-6.) When she revisited the area with the store manager, however, Plaintiff observed a silver "metal flange" at the base of the door that was so close to the groove that it made it difficult to see the groove clearly. (Jefferson Dep. 62:17-64:25.) Plaintiff estimated that the edge of this metal flange was less than a quarter of an inch away from the groove. (Jefferson Dep. 62:24-63:2.) According to Plaintiff, she saw this flange before she fell, but it essentially disguised the groove in the concrete. (Jefferson Dep. 64:18-65:2.)

Defendants contend that Plaintiff "does not know why the little groove' was there on the date of the incident, how it got to be there, or how long it had been there prior to her fall." (Defs.' Mem. at 3.) Plaintiff responds that the groove in the concrete appears to have been filled in at one point in time, but was unfilled to a depth of approximately a half of an inch on the date of the incident. (Pl.'s Opp'n at 2.) Based on a picture taken by Plaintiff's son the day after she fell, Plaintiff alleges that "it is apparent this condition did not just happen overnight, but over the long term as the original fill material in the crevice settled or otherwise deteriorated." (Pl.'s Opp'n at 2.) Defendant rejects Plaintiffs claim that Defendants' employees would have noticed the "developing crevice in the days or weeks prior to the plaintiffs fall" as unsubstantiated. (Defs.' Reply Mem. in Supp. of Their Mot. for Summ. J. ("Defs.' Reply") (ECF No. 15) at 6 (internal quotation marks omitted).)

Plaintiff filed this action in Henrico County Circuit Court, and Defendants timely removed the case to this Court. (Defs.' Mem. at 2.) On September 19, 2014, Defendants moved for summary judgment, contending that Plaintiff failed to establish a prima facie case for negligence and that Plaintiff was contributorily negligent as a matter of law. (Defs.' Mem. at 2.)


Summary judgment is appropriate where "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). The relevant inquiry at the summary judgment stage analyzes "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). When reviewing a motion for summary judgment, the Court views the facts in the light most favorable to the non-moving party. Id. at 255. The Court cannot weigh the evidence; it must simply determine whether a genuine issue exists for trial. Greater Bah. Ctr. For Pregnancy Concerns v. Baltimore, 721 F.3d 264, 283 (4th Cir. 2013) (quoting Liberty Lobby, Inc., 477 U.S. at 249).

Once the movant properly makes and supports a motion for summary judgment, the burden shifts to the opposing party to show that a genuine dispute of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the standard requires "that there be no genuine issue of material fact." Liberty Lobby, Inc., 477 U.S. at 247. A genuine issue of material fact arises only when the evidence, viewed in the light most favorable to the non-moving party, sufficiently allows a reasonable jury to return a verdict in that party's favor. Id. at 248. To defeat an otherwise properly-supported motion for summary judgment, the non-moving party must rely on more than conclusory allegations, "mere speculation, " the "building of one inference upon another, " the "mere existence of a scintilla of evidence" or the appearance of some "metaphysical doubt" concerning a material fact. Lewis v. City of Va. Beach Sheriff's Office, 409 F.Supp.2d 696, 704 (E.D. Va. 2006) (citations omitted). The Court must enter summary judgment against a party who, "after adequate time for discovery and upon motion, ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, ...

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