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Thomas v. Omni Hotels Management Corporation

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

March 7, 2017

ELLEN B. THOMAS, Plaintiff,


          Elizabeth K. Dillon United States District Judge

         In this premises liability action, which was removed to this court on the basis of diversity jurisdiction, plaintiff Ellen Thomas seeks to recover for personal injuries she sustained when she slipped and fell near a fountain at a resort managed by defendant Omni Hotels Management Corporation (Omni). The case is before the court on Omni's motion for summary judgment. (Dkt. No. 45.) For the reasons stated below, the court will grant Omni's motion.

         I. BACKGROUND

         This case arises from a slip and fall that occurred at the Omni Homestead Resort (the Homestead) in Hot Springs, Virginia, which is managed by Omni. (Answer ¶ 1, Dkt. No 12.) Plaintiff and her husband, Carl Thomas, Sr., arrived at the Homestead mid-afternoon on November 12, 2013. (E. Thomas Dep. 54:20-25, Dkt. No. 47-1; C. Thomas Dep. 9:2-4, Dkt. No. 47-3.) When they arrived the weather was “a bit windy” but sunny, with temperatures in the 40s or 50s. (C. Thomas Dep. 9:15-20.) The following morning, the Thomases walked into the town of Hot Springs for breakfast at approximately 8:45 a.m. (E. Thomas Dep. 58:7-8, 59:3-4.) The parties agree that the temperature was below freezing that morning: Mr. Thomas testified that he read a temperature sign indicating that it was 22 degrees. (C. Thomas Dep. 12:9-13.) There was no indication that there had been any rain. (E. Thomas Dep. 61: 10-16.)

         On their way out of the resort, the Thomases walked by the fountain where plaintiff later fell. (E. Thomas Dep. 59:3-11.) The base of the fountain was a circular pool, approximately five feet in diameter and approximately one foot deep, with a raised ledge around it. (Broce Dep. 11:23-12:5, Dkt. No. 47-6; e.g., Pl.'s Ex. 7, Dkt. No. 47-7.) In the middle of the pool was a shallow bowl on a raised pedestal, standing approximately three feet high. (Broce Dep. 11:16- 22; Pl.'s Ex. 7.) Omni employees described the fountain as a “bubbling type” fountain, where water fills the upper bowl from the top of the fountain, and then cascades from the upper bowl into the reservoir at the fountain's base. (Broce Dep 12:12-14; Shober Dep. 21:14-16, Dkt. No. 47-5.) Surrounding the fountain was a walkway made of a white textured material similar to cement. (Shober Dep. 22:14-23:10.) The walkway and fountain area were at least partially covered by a roof, and partially surrounded by the spa building and a gate to the rest of the homestead property. (Pl.'s Exs. 7-8; Broce Dep. 12:15-25; Shober Dep. 12:2-13:11.) The gate was typically opened in the morning by spa employees, who would also visually inspect the fountain area. (Shober Dep. 14:6-16:3.) That morning, the fountain was running and there were icicles hanging from the fountain's upper bowl. (Broce Dep. 10:1-3, Pl.'s Ex. 8.) Neither plaintiff nor her husband slipped as they walked by, and neither testified that they noticed ice on the walkway. (E. Thomas Dep. 64:15-24.)

         The Thomases returned from breakfast just before 9:30 a.m. and once again walked by the fountain. (See Pl.'s Ex. 10, Dkt. No. 47-10; E. Thomas Dep. 66:1-14.) This time, plaintiff's feet “flew out from under [her]” and she fell, landing with her right side on the ledge of the fountain and her right arm in the fountain. (E. Thomas Dep. 70:24-71:16.) She states that she fell on ice, although neither plaintiff nor Mr. Thomas ever saw ice in the area of plaintiff's fall.[1](E. Thomas Dep. 66:1-14.) Around 10 a.m., roughly thirty minutes later, Omni employees who went to inspect the fountain observed clear ice on a portion of the walkway around the fountain. (Broce Dep. 8:17-24; 21:7-16.)

         Thomas sues Omni, claiming that Omni was negligent in failing to maintain the fountain and failing to remove ice from the area surrounding the fountain. (Amended Compl. ¶ 4, Dkt. No. 11.) Thomas surmises that sometime during the night of November 12 or the morning of November 13, 2013, the wind blew water from the fountain onto the surrounding walkway, which froze and created a dangerous condition. (See generally Pl.'s Br. Opp'n, Dkt. No. 47.) Omni moves for summary judgment, arguing that Thomas has failed to establish that Omni had notice of the dangerous condition. Thomas contends in her brief that the evidence is sufficient to show that Omni failed to make the icy walkway safe or remove the ice, failed to properly inspect the walkway, and knew or should have know of the icy condition. (Id. at 1.)


         A. Summary Judgment Standard

         “Summary judgment is appropriate only if taking the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party, ‘no material facts are disputed and the moving party is entitled to judgment as a matter of law.'” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc) (quoting Ausherman v. Bank of Am. Corp., 352 F.3d 896, 899 (4th Cir. 2003)); see Fed. R. Civ. P. 56(a). If, after adequate discovery, the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial, ” such a failure “necessarily renders all other facts immaterial, ” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), and “[t]he moving party is ‘entitled to summary judgment as a matter of law.'” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).

         B. Analysis

         Under Virginia law, which applies here, “‘[a]ll negligence causes of action are based on allegations that a person having a duty of care to another person violated that duty of care through actions that were the proximate cause of injury to the other person.'” Jarmak v. Ramos, 497 F. App'x 289, 291 (4th Cir. 2012) (quoting Steward ex rel. Steward v. Holland Family Props., LLC, 726 S.E.2d 251, 254 (Va. 1991)); see Colonial Stores, Inc. v. Pulley, 125 S.E.2d 188, 189-90 (Va. 1962). Virginia law recognizes a special relationship between innkeepers and guests, Taboada v. Daly Seven, Inc., 626 S.E.2d 428, 432 (Va. 2006), aff'd on reh'g, 641 S.E.2d 68 (Va. 2007), which imposes on innkeepers a heightened duty of care “to use the utmost care and diligence of very cautious persons; and they will be held liable for the slightest negligence which human care, skill and foresight could have foreseen and guarded against.” Norfolk & W. R. Co. v. Birchfield, 54 S.E. 879, 883 (Va. 1906) (quoting Connell v. Chesapeake & Ohio Ry. Co., 24 S.E. 467, 468 (Va. 1896)). However, this special relationship does not make an innkeeper the insurer of a guest's safety, Taboada, 626 S.E.2d at 433, and in order to recover, an injured guest “must show that the owner had knowledge, actual or constructive, that a defect existed and that such defect created an unsafe condition.” Roll ‘R' Way Rinks, Inc. v. Smith, 237 S.E.2d 157, 161 (Va. 1977); see Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 452 (4th Cir. 2004); Taboada, 626 S.E.2d at 433; see also Jarmak, 497 F. App'x at 294.

         “Because an innkeeper owes a duty of care to its guests to inspect and discover unsafe conditions, it can be held liable to a guest under the theory of constructive notice.”[2] Jarmak, 497 F. App'x at 293. Constructive notice “may be shown by evidence that the defect was noticeable and had existed for a sufficient length of time to charge its possessor with notice of its [unsafe] condition.” Hodge, 360 F.3d at 454 (quoting Grim v. Rahe, Inc., 434 S.E.2d 888, 890 (Va. 1993)) (alteration in original); Jarmak, 497 F. App'x at 294. If plaintiff fails to come forward with evidence showing that the dangerous condition both existed for a sufficient amount of time and was discoverable upon an adequate inspection, Omni is entitled to summary judgment. Jarmak, 497 F. App'x at 294; see Hodge, 360 F.3d at 451; Logan v. Boddie-Noell Enters., No. 4:11-cv-8, 2012 U.S. Dist. LEXIS 5345, at *16 (W.D. Va. Jan. 18, 2012); Grim, 434 S.E.2d at 890 (“Hence, if the evidence fails to show when a defect occurred on the premises, the plaintiff has not made out a prima facie case.”). “Although constructive notice cannot be established by mere speculation, it is usually, if not always, established by circumstantial evidence.” Jarmak, 497 F. App'x at 293 (citations omitted).

         Both parties rely heavily on Jarmak, an unpublished Fourth Circuit case. In that case, the plaintiff (Jarmak) rented a cabin for several days from Ramos, the owner, notifying Ramos that he intended to use a cotton rope hammock hung between two trees in Ramos's backyard. Id. at 290. When Jarmak sat on the hammock, the ropes snapped and he fell to the ground. Id. After falling, Jarmak noticed that the snapped ropes were frayed, and left a note to Ramos stating that the ropes were rotted and some had snapped. Id. Ramos testified that, although she looked at the hammock on a regular basis, she was not sure when she last inspected it or used it before ...

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