United States District Court, W.D. Virginia, Harrisonburg Division
ELLEN B. THOMAS, Plaintiff,
OMNI HOTELS MANAGEMENT CORPORATION, Defendant.
Elizabeth K. Dillon United States District Judge
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.
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.)
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.
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.(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.)
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.
Summary Judgment Standard
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)).
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
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.” 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).
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 ...