United States District Court, W.D. Virginia, Danville Division
Jackson L. Kiser Senior United States District Judge
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. 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.
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.)
STANDARD OF REVIEW
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).
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).
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).
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.
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
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 ...