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Bass v. Wal-Mart Stores, Inc.

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

March 9, 2017

DEBRA BASS, Plaintiff,


          Hon. Jackson L. Kiser Senior United States District Judge

         Before the Court is Defendant Wal-Mart Stores, Inc.'s Motion for Summary Judgment. [ECF No. 18]. Plaintiff Debra Bass has alleged one count of simple negligence. To give the parties sufficient time to prepare for trial, briefing was closed on February 27, 2017, after Debra Bass filed her response to Wal-Mart's Motion.[1] No oral argument was held, but the parties' briefs sufficiently laid out their positions on the facts and law. For the reasons stated herein, I will grant Wal-Mart's Motion for Summary Judgment.

         I. BACKGROUND[2]

         On June 8, 2014, Plaintiff went to the Wal-Mart store in Danville, VA, to buy groceries. (Bass Dep. 32:22-24.) Plaintiff was wearing rubber flip-flops and, after entering the store, began to push a shopping cart. (Id. at 41:11-42:14.) As she turned into Aisle 8, her “feet went out from under [her], ” and she fell to the ground. (Id. at 42:10-14.) Plaintiff was looking ahead and towards the shelf in search of baker's chocolate when she fell. (Id.) Plaintiff quickly realized that she had slipped on cooking oil that had been spilled on the floor. (Id. at 48:5-8.) Plaintiff does not know how the oil got onto the floor or how long the spill had been there. (Id. at 49:6-11.) After falling, Plaintiff noticed a bottle of Crisco cooking oil on the floor of the aisle. (Id. at 49:11-14.) She admitted to not looking down at the floor in part because she “was looking up” for the items she was searching for and to “make sure [she] didn't run into anybody.” (Id. at 56:8-14.) She described the spill as “about 24 inches wide [and] about 36 inches going across the lane.” (Id. at 51:6-9.) She also described the oil as having no color. Plaintiff contends that as a result of her fall, she suffered a torn rotary cuff and received surgery. (Id. at 74:6-75:4, 77:6-19.)


         Summary judgment is appropriate where there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view the facts, and the inferences to be drawn from them, in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). A genuine issue of material fact exists if reasonable jurors could find by a preponderance of the evidence that the non-moving party is entitled to a verdict in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The court must not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

         The moving party has the initial burden of pointing out to the court the deficiency in the non-movant's case that would make it impossible for a reasonable fact-finder to return a verdict in the non-movant's favor. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A movant-defendant may show that he is entitled to judgment as a matter of law by demonstrating that the plaintiff could not prove an essential element of his case. Id. at 322-23. It is then up to the non-movant to demonstrate to the court that there are genuine issues of material fact, and that he has made a sufficient showing on each of the essential elements of his case. Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008); Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996). Therefore, summary judgment is appropriate when the moving party points out a lack of evidence to support an essential element of his or her claim. See Blair v. Colonas Shipyards Inc., 52 F.Supp.2d 687, 692 (E.D. Va. 1999), aff'd 203 F.3d 819 (4th Cir. 2000).

         In a diversity case, a federal court must apply the substantive law of the forum state. See generally Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Therefore, the Virginia law applicable to slip-and-fall cases governs this case. Logan v. Boddie-Noell Enter., Inc., No. 4:11-cv-8, 2012 WL 135284, at *4 (W.D. Va. January 18, 2012).


         Few facts are in dispute. The parties agree that Plaintiff slipped on cooking oil that had spilled in Aisle 8 of the Wal-Mart located in Danville. Defendant does not dispute that the spill constituted a hazard. Defendant argues, however, that Plaintiff has failed to provide evidence that Defendant had actual or constructive knowledge of the spill.

         The parties agree that Plaintiff was Defendant's invitee. In Virginia, a business owner owes an invitee,

the duty to exercise ordinary care toward her as its invitee upon the premises. In carrying out this duty [the business owner is] required to have the premises in a reasonably safe condition for [the invitee's] visit; to remove, within a reasonably time, foreign objects from its floors which it may have placed there or which it knew, or should have known, that others persons had placed there; [and] to warn [the invitee] of the unsafe condition if it was unknown to her, but was or should have been, known to the [business owner].

Colonial Stores Inc. v. Pulley, 125 S.E.2d 188, 190 (Va. 1962). A plaintiff “must introduce evidence of the responsible person's actual or constructive knowledge of a defective condition on the premises to establish a prima facie case of negligence.” Grim v. Rahe, Inc., 434 S.E.2d 888, 889 (Va. 1993). Defendant only contends that Plaintiff has failed to present evidence that Defendant had actual or constructive knowledge of the spill.

         In the absence of actual knowledge, constructive knowledge may be demonstrated by “evidence that the defect was noticeable and had existed for a sufficient length of time to charge its possessor with notice of its defective condition.” Id. at 890. In Grim, a “broken fluorescent light” burned the defendant, a toddler, after he touched the area under a customer counter. Id. at 888. The Virginia Supreme Court held that because the plaintiff had failed to provide any evidence “as to when the fixture was broken [or] how it was broken, ” it could not establish ...

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