United States District Court, W.D. Virginia, Abingdon Division
DEBRA R. SMITH, Plaintiff,
SAM'S EAST, INC., Defendant.
Lynn Tate, Tate Law, PC, Abingdon, Virginia, for Plaintiff;
W. Bradford Stallard, Penn, Stuart & Eskridge, Abingdon,
Virginia, for Defendant.
P. Jones United States District Judge
diversity action, the plaintiff seeks recovery for injuries
she sustained when she slipped and fell on premises of a
retail store operated by the defendant. The plaintiff
contends that the defendant was negligent by failing to keep
premises free from dangerous conditions of which it knew or
should have known. The plaintiff further alleges that the
defendant should be equitably estopped from asserting any
defenses. Based on the undisputed facts, I will grant the
defendant’s Motion for Summary Judgment.
essential facts, taken from the summary judgment record and
recited in the light most favorable to the nonmovant, are as
6, 2012, at approximately 8:20 p.m., the plaintiff, Debra R.
Smith, visited the Sam’s Club store in Bristol,
Virginia, which is owned and operated by the defendant,
Sam’s East, Inc. (“Sam’s”). Upon
entering the store, Smith obtained a metal shopping cart
provided by Sam’s. While pushing the cart into one of
the aisles, Smith slipped on liquid on the floor. One of her
legs slid under the cart and her ankle was cut by the bottom
of the cart. Smith denies seeing the liquid prior to falling.
employees responded to the incident within seconds. The
assistant manager on duty, Randy Whistler, prepared an
incident report after speaking with Smith. A subsequent
investigation and review of video security footage revealed
that Smith had slipped on a puddle of soft drink soda caused
when an adolescent boy deliberately punctured a shelved
plastic Pepsi bottle. Whistler ultimately was able to
identify the boy, as well as the customer he was with.
security footage also revealed that the time between when the
bottle was punctured and when Smith fell was approximately
five minutes. During that time, no employees were in the area
of the spill. However, an employee had conducted a routine
safety walk to check the area for spills shortly before the
spill acutally occurred. The store first learned of the spill
as a result of Smith’s fall.
discovery, Sam’s has moved for summary judgment in its
favor. Sam’s argues that, pursuant to Virginia law,
summary judgment is appropriate because it had no knowledge
or notice of any defect on its premises. The
defendant’s motion is ripe for decision, having been
fully briefed by the parties.
judgment is appropriate when “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). To raise a genuine issue of material fact
sufficient to avoid summary judgment, the evidence must be
“such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In making this
determination, “the court is required to view the facts
and draw reasonable inferences in a light most favorable to
the nonmoving party.” Shaw v. Stroud, 13 F.3d
791, 798 (4th Cir. 1994).
mandates the entry of summary judgment “against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The moving party “need not produce
evidence, but simply can argue that there is an absence of
evidence by which the nonmovant can prove his case.”
Cray Commc’ns, Inc. v. Novatel Comput.
Sys., Inc., 33 F.3d 390, 393 (4th Cir. 1994) (internal
quotation marks and citations omitted). Summary judgment is
not “a disfavored procedural shortcut, ” but
rather is a valuable mechanism for excluding “claims
and defenses [that] have no factual basis.”
Celotex, 477 U.S. at 327. It is the
“affirmative obligation of the trial judge to prevent
factually unsupported claims and defenses from proceeding to
trial.” Drewitt v. Pratt, 999 F.2d 774, 778-79
(4th Cir. 1993) (internal quotations marks and citations
substantive law governs this diversity action. See Erie
R.R. v. Tompkins, 304 U.S. 64, 78 (1938). In Virginia,
the law applicable to slip-and-fall cases is well settled.
See Winn-Dixie Stores, Inc. v. Parker, 396 S.E.2d
649, 650 (Va. 1990). A landowner “must use ordinary
care to keep his premises reasonably safe for an invitee,
although he is not an insurer of the invitee’s
safety.” Tate v. Rice, 315 S.E.2d 385, 388
(Va. 1984). In the absence of any evidence tending to show
that a landowner knew, or should have known by exercise of
reasonable diligence, of the defect or unsafe condition, the