United States District Court, W.D. Virginia, Roanoke Division
JAMES E. PATTERSON, Plaintiff,
KROGER LIMITED PARTNERSHIP I, Defendant.
MEMORANDUM OPINION 
ROBERT S. BALLOU, Magistrate Judge.
In this diversity action, I deny defendant's Motion for Summary Judgment. Dkt. No. 17. Plaintiff James E. Patterson ("Patterson") initially filed this tort action in state court alleging injury after he fell on a wet bathroom floor at a grocery store in the Towers Shopping Center, which is owned and operated by Kroger Limited Partnership I ("Kroger"). Kroger removed the case to federal court and filed an Answer denying all liability. Discovery is complete, and the issues have been fully briefed and were argued by counsel at a hearing held on April 1, 2015. Genuine issues of material fact exist as to how the incident occurred and whether Plaintiff was contributorily negligent which preclude summary judgment at this stage.
On April 30, 2014, Patterson entered the Kroger store intending to shop for dinner. He picked up a hand-held shopping basket, proceeded to the restroom area, and placed the empty hand basket on a three-foot tall rounded trashcan next to the bathroom door before he went into the restroom. The events which occurred as Patterson entered the bathroom and fell are contested. Patterson testified during his deposition that he looked at the hand basket after he placed it on the trashcan. He then turned back to the bathroom, opened the door, and glanced at the floor while opening the door. Dkt. No. 18-1, p. 27-28, 41. Later in the deposition, Patterson switched course and stated that he had momentarily turned to see the basket fall, "and as I was getting ready to reach, at the same time I was still going into the bathroom and stepped on the floor and fell." Dkt. No. 18-1, p. 50. Patterson later filed a declaration pursuant to 28 U.S.C. § 1746, stating under penalty of perjury that "I did not turn my head towards the handbasket. I did not reach back to stop the handbasket from falling while I was pushing the door open." Dkt. Nos. 25-2 & 27.
While stepping into the threshold of the bathroom, Patterson saw a small wet spot on the floor; he described the floor as having "a little shine" and not a puddle. Upon stepping onto the floor, Patterson says his right foot slipped; he claims he had no time to react to the wet floor because he had already started to fall when he saw the water. Patterson fell onto his right side and heard his shoulder tear. Once he had fallen onto the floor, Patterson realized the whole restroom floor was wet. Patterson then noticed a "wet floor" sign, a mop bucket inside a stall, and a Kroger employee inside the restroom.
Kroger employee Yosef Beleck testified in his deposition that he had been mopping in the restroom when Patterson entered. Dkt. No. 25-4, p. 6. Beleck did not recall how long he had been mopping or whether the whole floor was wet; however, he did remember that the area where Patterson fell was the last area mopped, and determined that it must have been wet. Dkt. No. 25-4, p. 7. After the fall, Beleck asked if Patterson was okay and held the bathroom door open because he had fallen in the doorway. Patterson stated he was fine, used the restroom, did not inform anyone else at Kroger that he had fallen, and left the restroom to continue shopping for dinner. Patterson returned to Kroger several days later to complete a claim report, in which he stated he had slipped walking into the bathroom while turning to catch his falling hand basket.
Summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56(a). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law." Jacobs v. N.C. Admin. Office of the Courts, No. 13-2212 , 2015 WL 1062673, at *4 (4th Cir. Mar. 12, 2015) (internal citations and quotations omitted) (citing Libertarian Party of Va. v. Judd , 718 F.3d 308, 313 (4th Cir. 2013)). "The moving party bears the initial burden of showing the absence of an essential element of the nonmoving party's case and that it is entitled to judgment as a matter of law. Once the moving party satisfies this burden, the nonmoving party then must recite specific facts showing that there is a genuine dispute of fact which merits a trial." Anderson v. Kroger Ltd. P'ship I, No. 2:11CV192, 2011 WL 5101764, at *1-2 (E.D. Va. Oct. 26, 2011) (internal citations and quotations omitted) (citing Honor v. Booz-Allen & Hamilton, Inc. , 383 F.3d 180, 185 (4th Cir. 2004)).
In determining whether summary judgment is appropriate, the court must view the facts, and inferences to be drawn from those facts, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962)). "The court therefore cannot weigh the evidence or make credibility determinations." Jacobs , 2015 WL 1062673, at *4 (citing Mercantile Peninsula Bank v. French (In re French) , 499 F.3d 345, 352 (4th Cir. 2007)). Where the record taken as a whole "could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate." Teamsters Joint Council No. 83 v. Centra, Inc. , 947 F.2d 115, 119 (4th Cir.1991) (citing Matsushita Elec. , 475 U.S. at 587, and Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-49 (1986)).
Virginia law governs this diversity claim. See Erie R.R. Co. v. Tompkins , 304 U.S. 64, 78 (1938). A store owner owes its customers a duty to exercise ordinary care towards them while they are on the premises. See Winn-Dixie Stores, Inc. v. Parker , 240 Va. 180, 182 (Va. 1990). A store owner must maintain his premises in a reasonably safe condition, remove foreign objects which he either knew or should have known were placed on the floor, and warn customers of unsafe conditions that he either knew or should have known existed on his premises. See Colonial Stores Inc. v. Pulley , 203 Va. 535, 537, 125 S.E.2d 188, 190 (1962). The applicable standard of care for a store owner is "(1) to remove from its floor within a reasonable time any hazardous condition that it created or of which it knew or should have known, and (2) to warn invitees of such a condition." Eure v. Kroger Ltd. P'ship I, No. 7:11-CV-00190, 2012 WL 896347, at *3 (W.D. Va. Mar. 15, 2012); see also Kane v. Stuckey's of Thornburg, No. CL97-53, 50 Va. Cir. 247, at *2 (Va. Cir. Ct. Sept. 13, 1999).
Kroger argues that summary judgment is appropriate because the wet bathroom floor was an open and obvious danger, and Patterson was contributorily negligent for not seeing and recognizing the danger and taking reasonable steps for his safety. Alternatively, Kroger asserts that Patterson cannot prove that Kroger had actual or constructive notice of the wet floor prior to his fall, and that he assumed the risk because he was aware that restrooms can have wet floors. Genuine issues of material fact exist concerning whether the restroom's wet floor was an open and obvious danger, whether Kroger had notice of the dangerous condition, and whether Patterson was contributorily negligent at the time of his fall.
Kroger contends that the restroom's wet floor was an open and obvious danger because Patterson noticed "a little wet spot on the floor" and a store employee had placed a "wet floor" sign inside the restroom. Kroger also argues Patterson would have been placed on notice if he had not negligently ...