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Smith v. Sam's East, Inc.

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

June 7, 2016

DEBRA R. SMITH, Plaintiff,
SAM'S EAST, INC., Defendant.

          Mary Lynn Tate, Tate Law, PC, Abingdon, Virginia, for Plaintiff; W. Bradford Stallard, Penn, Stuart & Eskridge, Abingdon, Virginia, for Defendant.


          James P. Jones United States District Judge

         In this 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.


         The essential facts, taken from the summary judgment record and recited in the light most favorable to the nonmovant, are as follows.

         On July 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.

         Store 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.

         The 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.

         Following 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.[1]


         Summary 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).

         Rule 56 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 omitted).


         Virginia 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 landowner ...

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