Hudson v. Boddie-Noell Enters., Inc.
| Decision Date | 13 June 2012 |
| Docket Number | Civil Action No. 7:11CV00466 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | EARL HUDSON, Plaintiff, v. BODDIE-NOELL ENTERPRISES, INC., Defendant. |
By: Hon. Glen E. Conrad
In this premises liability action, Earl Hudson ("Hudson"), seeks to recover for personal injuries sustained after he allegedly slipped on a patch of ice outside the entrance to a Hardee's restaurant owned and operated by the defendant, Boddie-Noell Enterprises, Inc. ("Boddie-Noell"). The case is presently before the court on the defendant's motion for summary judgment. For the reasons stated below, the defendant's motion will be denied.
The following facts are presented in the light most favorable to the plaintiff. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 255 (1986) ().
On the morning of December 17, 2010, Hudson and his wife, Mary, traveled to Roanoke from their home in Franklin County for a medical appointment. Reports from the National Climatic Data Center indicate that approximately three inches of snow and freezing rain had fallen in Roanoke the day before and remained on the ground.
Following the medical appointment, the couple went to the Hardee's restaurant on Route 419, where they arrived just before 11:00 a.m. According to Mary, portions of the restaurant's parking lot and sidewalks had been cleared, while other areas were still covered with snow.Mary entered the restaurant first. Immediately prior to entering the restaurant, she observed an area of "black ice .. . right as you get ready to step in the door." (Mary Hudson Dep. at 41.) Mary testified that it appeared that the particular area of the sidewalk had not been salted or treated.
While Mary waited to place the couple's order, the plaintiff attempted to enter the restaurant. He did not have any trouble "until [he] went to the door and pulled on it and [his] feet went out from under [him]." (Hudson Dep. at 65.) The incident happened very quickly and Hudson did not see what caused him to fall. During his deposition, Hudson testified as follows:
(Id. at 74-76.)
Deontay Gray, who saw Hudson fall, and Donald Dean, another customer, helped lift Hudson up and into the restaurant. Dean testified at his deposition that there was ice "[r]ight in front of the door" in the area in which Hudson fell, and that an ice chipper was sitting near the entrance. (Dean Dep. at 11-13.) When asked to describe the patch of ice, Dean testified that "[i]t was frozen layers . . . where you had tracked like you had walked on it and then it had froze[n] instead of melting." (Id. at 14.)
Hudson fractured his left wrist and three ribs as a result of the fall. He also suffered from a concussion and "some swelling in the brain." (Hudson Dep. at 36.)
Hudson filed this negligence action against Boddie-Noell in the Circuit Court for the County of Roanoke. Boddie-Noell then removed the action to this court on the basis of diversity of citizenship. Following the close of discovery, Boddie-Noell moved for summary judgment. The court held a hearing on the motion on June 5, 2012.
Under Rule 56 of the Federal Rules of Civil Procedure, an award of summary judgment is appropriate only "if the movant shows that there is no genuine issue of any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In reviewing a motion for summary judgment, the court must construe the record in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255. To withstand summary judgment, the non-moving party must offer evidence from which a reasonable jury could return a verdict for that party. Id. at 252.
"The essential elements of a negligence claim in Virginia, as elsewhere, are (1) the identification of a legal duty of the defendant to the plaintiff; (2) a breach of that duty; and (3)injury to the plaintiff proximately caused by the breach." Talley v. Danek Medical. Inc., 179 F.3d 154. 1547 (4th Cir. 1999). In moving for summary judgment on Hudson's claim of negligence, Boddie-Noell argues that Hudson's evidence is insufficient to establish any of these essential elements, and that it is clear, as a matter of law, that Hudson was guilty of contributory negligence. For the following reasons, the court concludes that genuine issues of material fact preclude the entry of summary judgment in favor of the defendant.
Turning first to the element of duty, the court notes that it is undisputed that Hudson was an invitee on Boddie-Noell's premises and, thus, that the defendant owed him "a duty of using ordinary care to maintain its premises in a reasonably safe manner and to warn [him] of any hidden dangers." Amos v. NationsBank, N.A., 504 S.E.2d 365, 366 (Va. 1998). On the other hand, Boddie-Noell was not the insurer of Hudson's safety, Miracle Mart. Inc. v. Webb, 137 S.E.2d 887, 890 (Va. 1964), and it is well established that a business owner has no duty to remove ice during the time that moisture is falling and freezing on the ground. FAD Ltd. Partnership v. Feagley, 377 S.E.2d 437, 438 (Va. 1989). Instead, "a business establishment . . . may wait until the end of a storm and a reasonable time thereafter before removing ice and snow from an outdoor entrance, walk, platform or steps." Amos, 504 S.E.2d at 366.
As the plaintiff, Hudson bears the burden of establishing that, at the time of his fall, Boddie-Noell had the duty to clear its premises of ice and snow. Id. The defendant correctly notes that whether this duty had arisen at the time of Hudson's fall "is a 'pure question of law' to be decided by the court." Id. (quoting Burns v. Johnson, 458 S.E.2d 448, 450 (Va. 1995)). However, when the existence of such duty depends on the resolution of a material factual dispute, the facts should first be determined by the fact finder. See, e.g., Sanderson v. Boddie-Noell Enterprises. Inc., 2005 U.S. Dist. LEXIS 41764, at *11 (E.D. Va. June 13, 2005) ().
In the instant case, the court agrees with Hudson that a genuine factual dispute exists with respect to whether the winter storm had ended at the time of his fall. Although Hudson's wife and Deontay Gray testified that there was frozen precipitation falling at the time that Hudson attempted to enter the restaurant, reports from the National Climatic Data Center indicate that the precipitation ended in Roanoke on the evening of December 16, 2010, and that no precipitation fell on the day of the incident. Likewise, Donald Dean testified that he did not recall seeing any rain or sleet when he traveled to the restaurant on the day in question. Because the court must construe the evidence in the light most favorable to Hudson, the court is unable to conclude, at this stage of the proceedings, that Boddie-Noell had no duty to employ reasonable efforts to remove ice and snow from its entrances at the time of Hudson's fall.
Boddie-Noell alternatively argues that it had no duty to warn Hudson about the patch of ice because it was open and obvious. See Fobbs v. Webb Bldg. Ltd. P'ship, 349 S.E.2d 355, 357 (Va. 1986) (). The question of whether a dangerous condition was open and obvious is normally one for the jury to determine. See Volpe v. City of Lexington, 708 S.E.2d 824, 828 (Va. 2011) ().
Viewing the evidence in the light most favorable to Hudson, the court concludes that reasonable minds could differ as to whether the ice was an open and obvious danger that Hudson should have observed and, thus, that Boddie-Noell is not entitled to summary judgment on this ground. While Donald Dean and Mary Hudson testified that they observed ice by the door, they also indicated that they did not see the ice until they were on it or beside it. Indeed, Mary Hudson described the substance as "black ice." (Mary Hudson Dep. at 41.) As other courts have recognized, black ice "by its very nature . . . is not noticeable upon casual inspection." Woodard v. Erp Operating Ltd. P'ship, 351 F. Supp. 2d 708, 715 (E.D. Mich. 2005) (); see also Ashley v. Waffle House. Inc., No. 6:04-22502-RBH, 2006 U.S....
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