Newcomb v. Food Lion, Inc.

• Decision Date: 20 August 1996
• Docket Number: No. 95-3044,95-3044
• Citation: 94 F.3d 642
• Parties: NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Arlene W. NEWCOMB, Plaintiff-Appellant, v. FOOD LION, INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 642

94 F.3d 642

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Arlene W. NEWCOMB, Plaintiff-Appellant, v. FOOD LION, INCORPORATED, Defendant-Appellee.

No. 95-3044.

United States Court of Appeals, Fourth Circuit.

Aug. 20, 1996.

ARGUED: William Carrington Thompson, Chatham, Virginia, for Appellant. Jim Harold Guynn, Jr., GUYNN & BRITT, P.C., Roanoke, Virginia, for Appellee. ON BRIEF: Mark M. Caldwell, III, PETTUS & CALDWELL, P.C., Keysville, Virginia for Appellant.

Before WILKINS and LUTTIG, Circuit Judges, and G. ROSS ANDERSON, JR., United States District Judge for the District of South Carolina, sitting by designation.

OPINION

PER CURIAM:

On a rainy September 22, 1994, Arlene Newcomb went to the grocery store, a Food Lion. Newcomb knew it had been raining since early that morning. As she approached the store, Newcomb saw patrons standing outside the store, under an overhang, shaking their umbrellas. Newcomb paused outside the doors and removed her rain cap. Newcomb admits that she "didn't do anything special that day because it was raining." She then entered the store.

To her left was the shopping cart corral and under her feet was a carpeted floor mat. Newcomb then took one step off the mat and her feet "shot out" from under her. Newcomb states that at the time she fell, her sight was focused on the shopping carts on her left. After she fell, Newcomb noticed that the floor mat was wet by feeling its wetness against her body. Similarly, Newcomb noticed "several dozen" wet footprints leading from the floor mat to the interior of the store. She noticed these footprints only after she fell. Newcomb also stated that had she been looking at the floor when she stepped off the mat, she could have seen the foot prints. She was also aware that water is often tracked indoors when it rains. There were no "wet floor" caution signs placed near the entrance of the store.

Newcomb brought this action alleging that Food Lion owed her, as a business invitee, a duty of care to remove or warn of hazards created by the rain.

Food Lion moved for summary judgment because the footprints were "open and obvious" and by failing to avoid them, Newcomb was contributorily negligent as a matter of law. The trial court agreed and granted summary judgment. Thus, the issue presented is whether the trial court properly granted summary judgment on these facts.

Since this is in the context of a motion for summary judgment, this Court reviews the decision of the trial court de novo. Further, all disputes in the facts, and inferences from the facts, must be considered in a light most favorable to the non-movant--here the Plaintiff.

Under Virginia law, a store owner owes its customers a duty to exercise ordinary care toward them when they enter the premises. Winn-Dixie Stores, Inc. v. Parker, 240 Va. 180, 396 S.E.2d 649 (1990). The owner must maintain its premises in a reasonably safe condition, and must warn a customer of any unsafe condition that is unknown to the customer but that is, or should be, known to the owner. Id.; see also Colonial Stores Inc. v. Pulley, 203 Va. 535, 125 S.E.2d 188 (1962). An owner of the premises, however, is not an insurer of the invitee's safety. The invitee must look out for her own safety by avoiding "open and obvious" dangers. Rocky Mount Shopping Center Associates v. Steagall, 235 Va. 636, 369 S.E.2d 193 (1988).

Failing to avoid "open and obvious" dangers may render the plaintiff contributorily negligent. In Virginia, a Plaintiff is contributorily negligent if he or she "failed to act as a reasonable person would have acted for his own safety under the circumstances." Artrip v. E.E. Berry Equip. Co., 240 Va. 354, 397 S.E.2d 821 (1990).

Contributory negligence in this case is determined by whether the hazard, a wet floor as evinced by footprints, was "open and obvious." If the wet...