Harrison v. The Kroger Co.

• Decision Date: 22 July 2010
• Docket Number: Civil Action No. 7:09cv453
• Citation: 737 F.Supp.2d 554
• Parties: Lisa M. HARRISON, Plaintiff, v. THE KROGER CO., Defendant.
• Court: U.S. District Court — Western District of Virginia

737 F.Supp.2d 554

Lisa M. HARRISON, Plaintiff,

v.THE KROGER CO., Defendant.

Civil Action No. 7:09cv453.

United States District Court,

W.D. Virginia,

Roanoke Division.

July 22, 2010.

James P. Cargill, Law Office of James P. Cargill, P.C., Roanoke, VA, for Plaintiff.

C. Kailani Memmer, Guynn Memmer & Dillon, PC, Salem, VA, for Defendant.

AMENDED MEMORANDUM OPINION

MICHAEL F. URBANSKI, United States Magistrate Judge.

This matter is before the court on defendant's Motion for Summary Judgment (Dkt. # 12). Plaintiff Lisa M. Harrison ("Harrison") brings this premises liability action in connection with a slip-and-fall incident that took place on August 26, 2006, at a grocery store owned and operated by The Kroger Company ("Kroger") located at 161 Electric Road, Lakeside Plaza in Salem, Virginia. Harrison originally filed suit in state court. Kroger removed the case to federal court and filed an Answer denying all liability. Subsequently, the case was voluntarily dismissed. Harrison re-filed her Complaint in this court on November 12, 2009. The parties have consented to the undersigned's jurisdiction over this matter, and by Order dated January 20, 2010, the case was transferred to the undersigned for all further proceedings. Discovery is complete, and this matter is ripe for summary judgment. The issues have been fully briefed and were argued by counsel at a hearing held on June 14, 2010. For the reasons stated herein, defendant's motion for summary judgment is GRANTED.

I.

The facts of this case are largely undisputed. On August 26, 2006, Harrison went to the Lakeside Kroger store with her fiancé, Alvin D. Boothe ("Boothe"), in the late afternoon after returning home from a vacation. The pair split up to shop, and Harrison picked up two twelve-packs of canned beer and a bottle of wine before proceeding to the bread/dairy aisle to look for bread. Harrison was wearing a pair of "your basic 99-cent flip-flops" and carrying the two beer cases under her left arm and the wine in her right hand, grasping the neck of the bottle. The aisle was very wide, with bread on one side and dairy products on the other. Harrison turned the corner into the bread aisle and reached up to a shelf for a loaf of bread, using the hand that was holding the bottle of wine. At that point Harrison slipped and fell. When she stood up, she saw a puddle of light-pink liquid that she estimated to be about the size of an 8 1/2-by-11-inch sheet of paper. Harrison thought it might be pink lemonade.

Prior to the incident, Harrison visited the Lakeside Kroger once or twice a week, and was familiar with the store. She testified that she would have seen the pink puddle if she had been looking at the floor, which was white, and did in fact see it while standing at least ten feet away following the incident. Boothe, who was in a different part of the store at the time of the incident, testified that he could see the puddle of "pinkish-colored liquid" while standing four or five feet away. He estimated it to be about three feet in size. Neither Harrison nor Boothe has firsthand knowledge of how the substance came to be on the floor, nor how long it was there.

Richard Chambers ("Chambers"), a Kroger employee, was stocking the dairy side of the aisle when Harrison fell, and was standing about half an aisle length away. In a declaration filed pursuant to 28 U.S.C. § 1746, Chambers stated that he had been in the area of the fall within five to ten minutes of the accident and did not seeany foreign substance there at that time or at any other time during the day. The Kroger manager on duty, Ricky Ellis ("Ellis"), likewise stated in a declaration that he did not see any foreign substance on the floor when he inspected the aisle no more than five minutes before Harrison's fall. Harrison testified that she had not seen anything on the floor before she slipped. She testified that after she fell, Chambers asked, "Ma'am, did you not see that? Are you okay?" He then approached her, and Harrison believes, but could not remember with certainty, that he helped her to stand and pick up the items she had been carrying.

II.

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56(c). The non-moving party "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985) (citing Barwick v. Celotex Corp., 736 F.2d 946, 963 (4th Cir.1984)). In determining whether summary judgment is appropriate, the court must view the facts, and inferences to be drawn from those facts, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). Nevertheless, where the record taken as a whole "could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate." Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir.1991) (citing Matsushita Elec., 475 U.S. at 587, 106 S.Ct. 1348, and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

III.

Kroger argues that summary judgment is appropriate in this case because Harrison has failed to prove that Kroger had actual or constructive notice of any dangerous condition on the floor prior to her fall. In the alternative, Kroger argues that Harrison was contributorily negligent as a matter of law. For the reasons set forth in detail below, the court finds that Kroger is entitled to summary judgment because Harrison cannot prove that Kroger created the hazardous condition or had actual or constructive knowledge of the puddle of pink liquid. Thus, it is unnecessary to reach the question of contributory negligence.

A.

In Virginia, a store owner owes its customers a duty to exercise ordinary care towards them when they are visiting the premises.¹ Winn-Dixie Stores, Inc. v. Parker, 240 Va. 180, 182, 396 S.E.2d 649, 650 (1990) (citing Colonial Stores v. Pulley, 203 Va. 535, 537, 125 S.E.2d 188, 190 (1962)); see generally Atrium Unit Owners Ass'n v. King, 266 Va. 288, 293, 585 S.E.2d 545, 548 (2003) (stating that in order to establish actionable negligence, Virginia law requires a plaintiff to show "the existence of a legal duty, a breach of the duty, and proximate causation resulting in damage"). Discharging this duty requires a store owner:

to have the premises in a reasonably safe condition for [a customer's] visit; to remove, within a reasonable time, foreign objects from its floors which it may have placed there or which it knew, or should have known, that other persons had placed there; to warn the plaintiff of the unsafe condition if it was unknown to her, but was, or should have been, known to the defendant.

Colonial Stores, 203 Va. at 537, 125 S.E.2d at 190; see also Winn-Dixie, 240 Va. at 182, 396 S.E.2d at 650. Where a premises owner's affirmative conduct is alleged to be the cause of an unsafe condition, Virginia courts impute notice to the defendant if the danger was reasonably foreseeable. Memco Stores, Inc. v. Yeatman, 232 Va. 50, 55, 348 S.E.2d 228, 231 (1986). In Yeatman, plaintiff slipped and fell on a green slimy substance determined to be a plant leaf that had fallen near a furniture display in defendant's store. Id. at 51, 348 S.E.2d at 229. Evidence adduced at trial supported the theory that a peperomia plant was taken from the patio and placed near the edge of a furniture display by defendant's employees, and that a leaf fell to the floor, causing plaintiff to slip. Id. at 53-54, 348 S.E.2d at 230. The court held that "[i]f an ordinarily prudent person, given the facts and circumstances Memco new or should have known, could have foreseen the risk of danger resulting from such circumstances, Memco had a duty to exercise reasonable care to avoid the genesis of the danger." Id. at 55, 348 S.E.2d at 231.

However, courts have rejected Yeatman's foreseeability standard where a defendant's conduct was merely "passive." Ashby v. Faison & Assoc., Inc., 247 Va. 166, 170, 440 S.E.2d 603, 605 (1994). In Ashby, the court characterized as "passive conduct" defendants' failure to remove or warn the plaintiff of water tracked into the lobby of an office building by a third party on a rainy day. Id. at 169-70, 440 S.E.2d at 605. The Ashby court distinguished the facts from the situation in Yeatman, in which the hazardous condition on the floor resulted from the defendant's affirmative conduct of moving a plant from the patio to the furniture display. Id. at 169, 440 S.E.2d at 605. Unlike Yeatman, there was no affirmative conduct in Ashby. Rather, plaintiff's theory was that a "third person entering the building either tracked water into the lobby or shook it from an umbrella and that the defendants' conduct in failing to remove the water or to warn her of its presence caused her injury." Ashby, 247 Va. at 169-70, 440 S.E.2d at 605. Under these circumstances, the court held that the appropriate standard is "whether the defendants had actual or constructive notice, that is, whether they knew or should have known, of the presence of the [hazardous condition] that caused [plaintiff's] fall and failed to remove it within a reasonable time or to warn of its presence." Id. at 170, 440 S.E.2d at 605; Turley v. Costco Wholesale Corp., 220 Fed.Appx. 179, 181 (4th Cir.2007) ("When, as here, the dangerous condition resulted from passive conduct, the plaintiff may prevail only if he shows that 'defendants had actual or constructive notice' of the dangerous condition." (quoting Ashby, 247 Va. at 170, 440 S.E.2d at 605)); Winn-Dixie, 240 Va. at 184, 396 S.E.2d at 651 (holding because plaintiff...