United States District Court, W.D. Virginia, Harrisonburg Division
Elizabeth K. Dillon United States District Judge.
case is before the court on defendant Wal-Mart Store East,
LP's (Wal-Mart) motion for summary judgment (Dkt. No.
104) and its supplemental motion for summary judgment, which
seeks judgment against Elizabeth Coogan-Golden's claim
for punitive damages (Dkt. No. 146.) As the court previously
advised the parties it intended to do, the court will deny
the motion for summary judgment and grant the supplemental
motion. This opinion sets forth briefly the reasons for the
Coogan-Golden was injured while shopping in the Wal-Mart
store in Staunton, Virginia, on August 20, 2013.
Specifically, while she in the sporting goods section of the
store, an electrical junction box cover fell from the ceiling
and struck her, resulting in injuries.
time of the accident, the store was having its roof replaced.
Wal-Mart had contracted with National Roofing Partners to
replace the roof, and National Roofing Partners subcontracted
with MountainTop Enterprises d/b/a Saratoga Roofing
(Saratoga) to perform the work. It is undisputed that Wal-Mart
was not responsible for supervising any of the roofing work
or directing the activities of any of Saratoga's
employees in the performance of the work, and Coogan-Golden
does not dispute that Saratoga was an independent contractor
are a number of undisputed facts that are relevant to whether
Wal-Mart had actual notice sufficient to impose liability on
it for the accident. Most importantly, there were three other
incidents that occurred shortly before the accident involving
Coogan-Golden, where items fell from Wal-Mart's ceiling
while roofing work was occurring. In one, debris or dust fell
from the ceiling onto a customer in the electronics section
of the store. In another, a globe that covered a security
camera fell and struck a customer. In the third, a piece of
plastic conduit came loose and fell, although it did not fall
all the way to the floor; instead, it was hanging suspended
about ten feet above the floor. Several Wal-Mart's
employees testified that they believed those items had fallen
as a result of the roofing work. Wal-Mart admits it had
notice of all of those incidents, and there are documents and
testimony showing that Wal-Mart discussed those incidents
internally and with its roofing contractor prior to
second amended complaint contains two counts, a count of
“negligence” and a count of “willful,
wanton and/or reckless negligence, ” the latter of
which includes a request for punitive damages.
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)).
Defendant's motion for summary judgment
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
Virginia, a landowner “must use ordinary care to keep
his premises reasonably safe for an invitee, although he is
not an insurer of the invitee's safety.” Tate
v. Rice, 315 S.E.2d 385, 388 (Va. 1984). In order to be
held liable, a plaintiff must show that “the owner had
knowledge of the alleged unsafe condition, or that it had
existed for such a length of time as to make it the
owner's duty in the exercise of ordinary care to have
discovered it.” Grim v. Rahe, Inc., 434 ...