United States District Court, W.D. Virginia, Big Stone Gap Division
Carl E. McAfee and Julia L. McAfee, Carl E. McAfee, P.C., Norton, Virginia, and Jeffrey A. Sturgill, Sturgill Law Office, Wise, Virginia, for Plaintiff; W. Bradford Stallard, Penn, Stuart & Eskridge, Abingdon, Virginia, for Defendant.
OPINION AND ORDER
James P. Jones United States District Judge
In this diversity action, the plaintiff claims that she was injured while a business invitee at the defendant’s store, when she was struck by a piece of merchandise which fell from a shelf. Following discovery, the defendant has moved for summary judgment on the ground that the plaintiff cannot prove that the defendant’s agents had knowledge of any dangerous condition and that the plaintiff’s negligence claim is simply a formulation of the so-called method theory of liability, rejected in Virginia, whereby notice is sought to be proved by the storekeeper’s method or manner of displaying its merchandise.
The defendant also moves to exclude the testimony of the plaintiff’s expert witness on the ground that his qualifications do not support his relevant opinions and that in any event those opinions are speculative and without basis in the record.
The issues have been fully briefed and orally argued. For the reasons that follow, I will grant the defendant’s motions and enter final judgment in its favor.
The following facts are taken from the record submitted to the court, which includes the transcripts of discovery depositions and exhibits to those depositions.
On September 5, 2013, the plaintiff, Camilia Robinette, then twelve years old, and her mother, Cindy Robinette, visited the Wal-Mart store in Big Stone Gap, Virginia, to buy fish food. While shopping, the plaintiff and her mother stopped by the sporting goods section to look at exercise weights. They found three so-called kettlebell weights displayed on a shelf approximately sixteen inches wide and thirty-six inches high. The plaintiff removed a fifteen-pound kettlebell from the shelf to examine it, and seconds later, a twenty-pound kettlebell fell from the shelf and struck her right foot, seriously injuring her large toe.
The only witnesses to the incident were the plaintiff and her mother. As she approached the shelf, Mrs. Robinette noticed nothing unusual or alarming about the position of the kettlebells, nor did she notice anything wrong with the shelf on which the kettlebells were sitting. The kettlebells were near the edge of the shelf but not hanging over it. The plaintiff and her mother cannot estimate how close the weights were to the edge. All three kettlebells were sitting with the handle straight up and the flat part of the weight flush with the surface of the shelf. When the incident occurred, Mrs. Robinette was in the process of looking at other weights displayed on the bottom shelf. The plaintiff and her mother claim to have never touched the other kettlebells and did not see the subject kettlebell fall and do not know what caused it to fall off of the shelf.
As Mrs. Robinette testified in her deposition:
Q. Did you yourself ever touch any of the kettlebells?
. . . .
Q. Was there anything about their position that caused you concern or - A. No. . . . .
Q. Did you actually see it fall off the shelf?
Q. Do you know what caused it to fall off the shelf?
. . . .
Q. Do you have any idea at that moment what caused the kettlebell to fall off the shelf?
A. No, I did not.
. . . .
Q. Do you know whether they were all sitting straight up ...