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Zowaski v. Speedway LLC

United States District Court, W.D. Virginia, Lynchburg Division

May 10, 2016

Richard Zowaski, Plaintiff,
Speedway LLC, Defendant.



This is a diversity[1] tort case arising out of a trucker’s slip-and-fall in the bathroom shower at a WilcoHess gas station/“travel plaza” in northwestern Virginia. Plaintiff Richard Zowaski (“Plaintiff”) slipped on water when he stepped out of a private shower he had purchased from Defendant Speedway LLC (“Defendant”). The state-court complaint asserted various theories of negligence. Defendant-after removing the case to federal court, a point of interest discussed later-now seeks summary judgment, arguing that contributory negligence, assumption of the risk, lack of proximate cause, and its lack of notice of the allegedly-dangerous condition all justify ending this case. The Court held oral argument on the motion. Because Defendant’s arguments have merit, its motion must be granted and this case will be dismissed.


Federal Rule of Civil Procedure 56(a) provides that a court should grant 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.” “As to materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In order to preclude summary judgment, the dispute about a material fact must be “‘genuine, ’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). However, if the evidence of a genuine issue of material fact “is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 250. In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).


The facts are drawn largely from Plaintiff’s deposition testimony, the primary evidence submitted by the parties. Plaintiff is an “over-the-road” truck driver, meaning he spends several nights away from home and sleeps in his truck (or occasionally, hotels) between shifts. (Dkt. 15-2 (herein “Dep.”) at 21). Consequently, he regularly uses truck stop facilities, including their showers. (Dep. at 24-25). When a trucker rents one of these showers, he essentially treats the facility as if it were his own personal bathroom. (Id. at 65-66, 68-69).

On October 2, 2013, Plaintiff stopped at Defendant’s “travel plaza” in Toms Brook, Virginia. Plaintiff had never showered at the travel plaza before but stopped there on occasion- a “couple times a month”-for fuel and food. (Dkt. 15-1 at ECF 4; Dep. at 54). He purchased a shower from Defendant, meaning he bought the privilege of using a private bathroom (“Room”) complete with a shower stall. (Dep. at 68-69). The Room included a chair “toilet, sink, and little cubicle shower” with three enclosed walls and a shower curtain. (Id. at 57-58). This setup was generally the same as other shower facilities Plaintiff encountered at other truck stops. (Id. at 66-68). The shower stall itself generally was akin to Plaintiff’s shower at home, except that his own bathroom has linoleum flooring. (Id. at 71).

Upon purchasing the shower, Defendant’s employee provided Plaintiff with a paper-based bathmat; Plaintiff did not use that bathmat because he believed it was ineffectual, and in fact used no bathmat at all. (Dep. at 73-74, 97, 119-20). Plaintiff did not bring shower footwear with him into the Room, but instead took his shower barefoot. (Id. at 64, 119). The Room’s floor outside of the shower stall-which Plaintiff characterized as “slippery, ” much like the floor of his bathroom at home and at other truck stops-was made of tile. (Id. at 61, 77, 208-09). Usually, Plaintiff would lay his dirty shirt on the floor to avoid standing barefoot on the bare tile. (Id. at 120). However, he “never” laid his shirt down in front of the shower because he knew “it’s gonna get wet.” (Id. at 120).

When Plaintiff entered the Room, he locked the door and noticed there was no water on the floor. (Dep. at 66, 116, 144). Thus, once Plaintiff was inside, Defendant (i.e., its employees) could not access or view the Room for any reason, including to clean any subsequent spills. (Id. at 75). Once inside the Room, Plaintiff observed that the shower curtain was closed (but not all the way) and pleated: “it wouldn’t s[t]ay closed tight.” (Id. at 105, 125-27, 137-38).[2] After disrobing, Plaintiff stood beside the shower curtain and adjusted the water temperature. (Id. at 123-24). Upon entering the shower stall, he noticed that the curtain was “too short to reach the bottom of” the shower’s spill lip, thus leading him to suspect “that water was going to be coming out.” (Id. at 125-27, 132, 137-38). Based on the gaps between the curtain and the shower wall, he “assumed [water] probably was” escaping from the shower while he was inside, although he did not directly observe the water escaping. (Id. at 138, 141).

After he concluded his shower, Plaintiff did not dry off inside the stall but rather stepped barefooted with his left foot directly onto the tile floor. (Dep. at 139, 142; Dkt. 15-1 at ECF 3). At that point, he slipped on the wet floor, sustaining injuries for which he seeks to recover (i.e., a cut that eventually caused “mild sepsis” and required his hospitalization). (Dep. at 139; Dkt. 15-1 at ECF 3; dkt. 17-4 at 1).

When stepping out of the shower, Plaintiff did not look for or see the water on which he claims he slipped. (Dep. at 140-41). He admitted that nothing would have prevented him from seeing the water had he been on the lookout, and that he would have in fact seen it had he looked down; but he just “wasn’t looking . . . [n]ot even thinking about if there was any water there or not.” (Id. at 141-42, 144). Although initially testifying that he could not tell where the water came from, Plaintiff said he was “sure it came from the shower curtain” because it was “just obvious . . . to see that the shower curtain wasn’t closing, and the bottom wasn’t long enough, so the water is going to get out. [It was j]ust obvious.” (Id. at 143). Plaintiff agrees that Defendant did not put the water on the floor and did not know (and could not have known) about it at the time he exited the shower. (Id. at 147).


Defendant Speedway seeks dismissal on four grounds. It argues there is no evidence of causation because Plaintiff “assumed” he fell due to a puddle of water. It asserts that it was not on actual or constructive notice of any defect, and thus had no duty. It claims the puddle of water was “open and obvious” as a matter of law. And it contends that Plaintiff assumed the risk of falling by stepping out of the shower onto the wet floor. Because this is a diversity tort action where the injury occurred in Virginia, the Court applies Virginia law. De ...

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