United States District Court, W.D. Virginia, Abingdon Division
Jeffrey W. Stowers, Jr., The Ratliff Law Firm, Cedar Bluff,
Virginia, for Plaintiff
Danielle D. Giroux and Kathryn D. Jones, Harman, Claytor,
Corrigan & Wellman, Richmond, Virginia, for Defendant.
OPINION AND ORDER
P. Jones United States District Judge
diversity action, the plaintiff seeks recovery for injuries
he sustained when he slipped and fell on premises of a retail
store. The plaintiff contends that the store owner was
negligent by failing to keep the premises free from dangerous
conditions of which it knew or should have known. 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
October 17, 2015, at approximately 6:15 p.m., the plaintiff,
Timothy Smith, a citizen of Virginia, was shopping with his
wife at the Kmart store in Cedar Bluff, Virginia. Kmart
Corporation is incorporated in Michigan with its principal
place of business in Illinois. While walking down one of the
aisles, Smith slipped on a puddle of liquid on the floor. The
puddle of liquid was clear, odorless, and approximately two
feet wide. The plaintiff injured his back as he fell into a
shelf. Smith and his wife both deny seeing the substance on
the floor prior to his fall.
time of the fall, no employees were in the aisle containing
the spilled substance. Additionally, no employees were aware
of the substance being on the floor prior to the incident. A
manager on duty at the time of the incident prepared an
incident report from information obtained by Smith.
deposition, Smith testified that he did not know how the
liquid got onto the floor or how long it had been there. To
Smith's knowledge, an employee who had been working in
the nearby layaway department did not see the puddle until
after Smith slipped.
Cruey, an employee of the defendant, had been working at the
store on the day of the incident. Following Smith's fall,
Cruey cleaned the spill and placed a warning sign next to the
area. Cruey testified that employees were trained to clean up
spills. In the six months that he worked at the store, he
“maybe cleaned up two or three.” Mem. in
Opp'n to Def.'s Mot. for Summ. J. Ex. C, at 8, ECF
No. 17-3. Cruey had seen spills in that area of the store
before, but he testified that customers drop things in all
areas of the store. There was no set inspection or clean-up
schedule during store hours, but employees “did a
security scan once an hour.” Id. at 9.
testified that he did not know how long the puddle had been
on the floor before Smith's fall. During his deposition,
Cruey had the follow exchange with plaintiff's counsel:
Q So it could have been there for ten minutes?
Q An ...