United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
DOUGLAS E. MILLER, Magistrate Judge.
This matter is before the Court on Defendant Food Lion, LLC ("Food Lion")'s Motion for Summary Judgment. (ECF No. 12). Plaintiff Irene Eley ("Eley") alleges that she slipped and fell on a liquid on the floor of an aisle in Food Lion's Store #1629 in Norfolk. Food Lion argues that it lacked notice, constructive or actual, of the allegedly defective condition prior to Eley's fall. Eley argues that a genuine issue remains as to notice, which she intends to prove "by relying on the fact that an agent of the defendant should have observed the dangerous condition at the time of the accident." Pl.'s Br. (ECF No. 14, at 4). Upon the materials in the record, viewed in the light most favorable to Eley, the Court concludes that there is no genuine dispute as to any material fact and that Food Lion is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). Eley has failed to produce any evidence from which a reasonable juror could conclude Food Lion had notice of the alleged defect. Accordingly, for the reasons set forth in greater detail below, the Court GRANTS Food Lion's Motion for Summary Judgment.
I. SUMMARY OF UNDISPUTED MATERIAL FACTS
On July 4, 2012, Eley travelled with her cousin to Food Lion store #1629 in Norfolk and arrived between 2:00 PM and 4:00 PM. After travelling around the store and collecting items she intended to purchase, she and her cousin proceeded to the front of the store in order to pay for the collected items. Eley then realized that she had forgotten to get an item, hushpuppy mix. She then directed her cousin to stand in a checkout line, while she went to retrieve the hushpuppy mix. Eley walked down aisle 5, grabbed the hushpuppy mix off the shelf, and then began walking back down aisle 5 toward the front of the store. While travelling down the aisle, she slipped and fell forward onto the floor. Eley alleges that she then saw a clear unidentified liquid on the floor, which was discolored from dirt on her shoe. Eley cannot identify the liquid, when the liquid became present on the floor, or how the liquid came to be present on the floor. See Dep. of Irene Eley (ECF No. 13-1, at 53-85).
One Food Lion employee, Augusta Welch who worked as a stocker or "scan analyst, " witnessed Eley's fall. According to Ms. Welch, "[i]t just looked like [Eley] collapsed to the ground and fell forward." Dep. of Augusta Welch (ECF No. 17, at 8). Ms. Welch was hanging new price tags on aisle 5 when Eley "buckled over." Id. at 9, 10. As Ms. Welch worked her way down aisle 5, she did not see anything on the floor because "if there was something on the ground [she] would have noticed." Id. at 10. She testified: "I'm looking at the ground as I'm walking and paying attention to what's around me." Id. Regarding aisle 5 immediately after Eley's fall, Ms. Welch asserted that "[t]here was nothing on the floor to my recollection." Id. at 16. Ms. Welch immediately went over to Eley after her fall and directed an another employee, who walked by the aisle, to notify the store manager on duty and the security officer. Id. at 11.
The store manager that day, James Bowman, came to aisle 5 soon after the fall. Dep. of James Bowman (ECF No. 16, at 21). Mr. Bowman observed Eley "laying on the floor" and saying that she was in pain. Id. Mr. Bowman testified that he observed nothing on the floor, other than Eley. Id. Mr. Bowman stated: "I can tell you there was nothing on the floor because I've done this for thirty years and that would be the first thing I would look for if there was something." Id. at 23. Eventually, paramedics transported Eley to DePaul Medical Center, where she was discharged. Eley Dep. (ECF No. 13-1, at 86).
A. The Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure 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)).
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). The "mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient." Anderson, 477 U.S. at 252. Rather, when "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (internal quotation marks omitted).
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.
B. Eley Has Failed to Produce Sufficient Evidence to Support Constructive Notice
Eley has alleged one count of simple negligence. It is her burden at trial to prove that Food Lion owed her a duty, breached that duty, and by such breach, proximately caused her injury. Colonial Stores Inc. v. Pulley, 125 S.E.2d 188, 190 (Va. 1962). The materials in the record establish that Eley was an invitee upon Food Lion's premises. As such, Food Lion owed her a duty to exercise ordinary care.
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 had placed there; to warn the plaintiff of the unsafe ...