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Owen v. KMart Corporation

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

September 7, 2017

HAROLD OWEN, Plaintiff,
v.
KMART CORPORATION Defendant.

          By: James P. Jones United States District Judge Thomas R. Scott, Jr., Street Law Firm, LLP, Grundy, Virginia, for Plaintiff;

          Danielle D. Giroux and Kathryn D. Jones, Harman, Claytor, Corrigan & Wellman, Alexandria, Virginia, for Defendant.

          OPINION AND ORDER

          JAMES P. JONES UNITED STATES DISTRICT JUDGE

         In this diversity action, [1] the plaintiff seeks recovery for injuries he sustained when he slipped and fell on premises of a retail store. The plaintiff contends that the store owner was negligent by failing to keep premises free from dangerous conditions of which it knew or should have known. Based on the undisputed facts, I will grant the defendant's Motion for Summary Judgment.

         I.

         The essential facts, taken from the summary judgment record and recited in the light most favorable to the nonmovant, are as follows.

         On June 9, 2014, the plaintiff, Harold Owen, was shopping at a retail store in Abingdon, Virginia, operated by defendant Kmart Corporation. While pushing a cart down one of the aisles, which contained shelves stocked with liquid laundry and dish detergents, the plaintiff slipped on a puddle of liquid on the floor and fell, injuring himself. The plaintiff denies seeing the substance on the floor prior to his fall. The puddle of liquid was light orange in color and according to a Kmart employee, was “[a]bout a foot puddle” or “a foot circle, ” located close to the shelves. Clark Dep. 60:22-24, 61:15-19, ECF No. 34-4. The employee found a bottle on the shelf that had “some” liquid missing “and the tab had been like somebody pushed their thumb through the tab, and the bottle was closed.” Id. 49:4-7. Prior to the incident, no employees were aware of the liquid being on the floor and only learned of it as a result of the plaintiff's fall. A Kmart employee had traveled down the same aisle approximately ten minutes prior to the accident and did not see any substance on the floor.

         Following discovery, Kmart has moved for summary judgment in its favor. It argues that, pursuant to Virginia law, summary judgment is appropriate because it had no knowledge or notice of the substance on the floor. The motion is ripe for decision, having been fully briefed by the parties.[2]

         II.

         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). To raise a genuine issue of material fact sufficient to avoid summary judgment, the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this determination, “the court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).

         Rule 56 mandates the entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party “need not produce evidence, but simply can argue that there is an absence of evidence by which the nonmovant can prove his case.” Cray Commc'ns, Inc. v. Novatel Comput. Sys., Inc., 33 F.3d 390, 393 (4th Cir. 1994) (internal quotation marks and citations omitted). Summary judgment is not “a disfavored procedural shortcut, ” but rather is a valuable mechanism for excluding “claims and defenses [that] have no factual basis.” Celotex, 477 U.S. at 327. It is the “affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.” Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (internal quotations marks and citations omitted).

         III.

         Virginia substantive law governs this diversity action. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). In Virginia, the law applicable to slip-and-fall cases is well settled. See Winn-Dixie Stores, Inc. v. Parker, 396 S.E.2d 649, 650 (Va. 1990). A land owner “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 the absence of any evidence tending to show that a landowner knew, or should have known by exercise of reasonable diligence, of the defect or unsafe condition, the landowner will not be liable for injuries caused by some defect or unsafe condition in the premises. See Roll ‘R' Way Rinks, Inc. v. Smith, 237 S.E.2d 157, 161 (Va. 1977).

         Kmart argues that summary judgment is appropriate because it had no knowledge of any defect or hazardous condition, which in this case was the substance on the floor. In the absence of evidence showing that some affirmative conduct of the defendant caused the condition, the plaintiff must show that the defendant had actual or constructive ...


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