Estep v. Xanterra Kingsmill, LLC
| Citation | 238 F.Supp.3d 791 |
| Decision Date | 03 March 2017 |
| Docket Number | Civil No. 4:16cv89 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Christine Vaughan ESTEP, Plaintiff, v. XANTERRA KINGSMILL, LLC, Defendant. |
Matthew Westcott Smith, Otey Smith & Quarles, Williamsburg, VA. for Plaintiff.
Robert Thomas Hicks, Stephen Daniel Caruso, Bean Kinney & Korman PC, Arlington, VA, Timothy James Taylor, Holland & Knight LLP (McLean), Tysons Corner, VA, Aaron Patrick Bradford, Andrea Marie LaFrance, Bradford, LTD., David Richard Fine, Maxwell Norman Shaffer, Holland & Knight LLP (CO–NA), Denver, CO, for Defendant.
Mark s. Davis, United States District Judge
This matter is before the Court on a motion for summary judgment filed by Xanterra Kingsmill, LLC ("Defendant" or "Kingsmill"). ECF No. 21. After examination of the briefs and record, the Court finds that a hearing is unnecessary, as the facts and legal arguments are adequately presented, and the decisional process would not be aided significantly by oral argument. Fed. R. Civ. P. 78(b) ; E.D. Va. Loc. Civ. R. 7 (J).
The undisputed facts before the Court establish as follows:1
(1) Kingsmill's resort premises include a tennis center that hosts 12–week long tennis leagues. Christine Estep ("Plaintiff") participated in such tennis leagues during spring, summer, and fall of 2013.
(2) A path made of asphalt, and edged with green grass, leads to the Kingsmill tennis courts. On September 12, 2013, at 9:45 a.m., Plaintiff fell while walking along the path toward the courts.
(3) The below photograph depicts the path, and was taken less than 30 minutes after Plaintiff's fall. Plaintiff fell on the grassy patch located on the left side of the path as indicated by the blue arrow in the photograph below (the blue arrow was added by the Court for illustration purposes only ).
(4) The green grassy area depicted in the photographs is approximately 16 inches long and extends approximately 14 inches into the darker colored paved asphalt path.
(5) While walking along the left side of the paved path, Plaintiff stepped into the grassy area, or partially into the grassy area, causing her to fall and sustain injuries to her foot and lower leg.
(6) At the time of her fall, Plaintiff was alone on the paved path and was not distracted by her phone or other sources.
(7) Many people, including Plaintiff, have safely used the paved path on prior occasions and Defendant has not had any complaints about the grassy area extending into the paved path, nor is Defendant aware of anyone else being injured at this location.
(8) It is undisputed that there was approximately five feet of open paved path to the right of the grassy area, and there was no opposing foot traffic or other reason that Plaintiff could not have moved to the right in order to stay on the paved surface.
(9) While Plaintiff made statements in her deposition that do not appear to contest the fact that the grassy area was visible, she contends that it did not look like a trip hazard or anything obvious to avoid. Plaintiff asserts that she was paying attention while walking and that she would have avoided obvious hazards.
(10) Plaintiff testified that it was only after her fall that she discovered a hole under the grassy area. Although there is imprecise and disputed evidence on such issue, the hole, purportedly hidden by long grass, was as deep as eighteen inches.2
Predicated on the above facts, Defendant filed the instant motion seeking summary judgment based only on the affirmative defense of contributory negligence. Plaintiff filed a brief in opposition, asserting that a jury must decide whether Plaintiff was negligent. The question for the Court on summary judgment is thus limited to determining whether, on these facts, Plaintiff was contributorily negligent as a matter of law.3 Based on the arguments presented by the parties, the resolution of such question turns primarily on whether the grassy patch, and/or the hole beneath the grassy patch, was an "open and obvious" defect/danger.
The Federal Rules of Civil Procedure provide that a district court "shall grant summary judgment if [a] 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) ; Jacobs v. N.C. Admin. Office of the Courts , 780 F.3d 562, 568 (4th Cir. 2015). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit," and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505 ; see Jacobs , 780 F.3d at 568.
When a moving party "seeks summary judgment on an affirmative defense, it must conclusively establish all essential elements of that defense." Ray Commc'ns, Inc. v. Clear Channel Commc'ns, Inc. , 673 F.3d 294, 299 (4th Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If the moving party produces "sufficient evidence in support of its affirmative defense, the burden of production shifts" to the non-movant to identify facts demonstrating a genuine issue for trial. Id. If the moving party fails to produce sufficient evidence, "summary judgment must be denied ... for the non-movant is not required to rebut an insufficient showing." Id. (citation omitted).
At the summary judgment phase, a district court is not permitted "to weigh the evidence and determine the truth of the matter," but must instead "determine whether there is a genuine issue for trial." Tolan v. Cotton , ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (quoting Anderson , 477 U.S. at 249, 106 S.Ct. 2505 ). Accordingly, "[t]he relevant inquiry is 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Stewart v. MTR Gaming Grp., Inc. , 581 Fed.Appx. 245, 247 (4th Cir. 2014) (quoting Anderson , 477 U.S. at 251–52, 106 S.Ct. 2505 ). In making such determination, the Court must consider the record evidence " 'in the light most favorable to the' nonmoving party." Jacobs , 780 F.3d at 568 (quoting Tolan , 134 S.Ct. at 1866 ).
Pursuant to Virginia substantive law governing the instant diversity action,4 "[a] n owner of premises owes a duty to its invitee (1) to use ordinary care to have the premises in a reasonably safe condition for the invitee's use consistent with the invitation, and (2) to use ordinary care to warn its invitee of any unsafe condition that was known, or by the use of ordinary care should have been known, to the owner; except that the owner has no duty to warn its invitee of an unsafe condition which is open and obvious to a reasonable person exercising ordinary care for his own safety." Fobbs v. Webb Bldg. Ltd. P'ship , 232 Va. 227, 229, 349 S.E.2d 355, 357 (1986) (emphasis added) (citations omitted). If a person trips over an "open and obvious condition or defect" she is "guilty of contributory negligence as a matter of law," unless there is a legally valid justification for failing to observe the defect. Scott v. City of Lynchburg , 241 Va. 64, 66, 399 S.E.2d 809, 810 (1991). Stated differently, "where a defect is open and obvious to persons using a sidewalk it is their duty to observe the defect," and "[w] here there is no excuse for not seeing the defect one cannot recover." Town of Va. Beach v. Starr , 194 Va. 34, 36, 72 S.E.2d 239, 240 (1952) (citation omitted).5 In the absence of an open and obvious defect/danger, an invitee "has the right to assume that premises are reasonably safe." Volpe v. City of Lexington , 281 Va. 630, 637, 708 S.E.2d 824, 827 (2011) ; Comess v. Norfolk Gen. Hosp. , 189 Va. 229, 235, 52 S.E.2d 125, 128 (1949) () (citations omitted).
"Ordinarily, whether a plaintiff is guilty of contributory negligence is a jury issue," and such issue "becomes one of law for resolution by a court only when reasonable minds could not differ about the conclusion." Medlar v. Mohan , 242 Va. 162, 166, 409 S.E.2d 123, 126 (1991). Here, while Plaintiff offers some evidence that arguably calls into question how "obvious" the grassy patch was to a pedestrian walking down the paved path,6 the primary dispute addressed by the parties' briefs is whether the grassy patch, and the hole/depression obscured beneath the grass, was an "open and obvious" defect or danger such that Plaintiff had a duty to avoid it in the exercise of reasonable care. Plaintiff does not assert that she was distracted or otherwise prevented from observing the green grassy patch itself; rather, she focuses her opposition to summary judgment on the fact that, even if the existence of the grassy patch is deemed to be "open and obvious" as a matter of law, a reasonable juror could conclude that there was not an "open and obvious" danger because there was no indication of a hole or depression under the grassy area or that such area otherwise constituted a trip hazard.
Defendant responds to Plaintiff's argument by contending that the "defect" in the paved path was obvious, and that Plaintiff negligently contributed to her injury based on her failure to stay on the paved surface. In support of its position, Defendant argues that there is no legal distinction between an open and obvious condition/defect and an open and obvious hazard/danger. To place a finer point on the dispute before the Court, the parties take the following conflicting positions: (1) Plaintiff asserts that she did not...
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