Robinson v. Kroger Co.
| Decision Date | 08 October 2015 |
| Docket Number | CASE NO. 6:14-cv-00046 |
| Parties | ROBIN MICHELLE ROBINSON, Plaintiff, v. THE KROGER CO. AND KROGER LIMITED PARTNERSHIP I, Defendants. |
| Court | U.S. District Court — Western District of Virginia |
Plaintiff Robin Michelle Robinson initially filed this action in Lynchburg Circuit Court. Defendants The Kroger Company and Kroger Limited Partnership I removed the action to this Court on the basis of diversity jurisdiction. The matter is presently before the Court upon Defendants' motion for summary judgment, argued on September 22, 2015. For the following reasons, I will deny Defendants' motion.
The case arises from a "slip and fall" event that occurred on September 29, 2012, at a Kroger store located at 2012 Wards Road, Lynchburg, Virginia. Ms. Robinson alleges that the Defendants "negligently allowed an unsafe condition to exist in a public traffic area for use by the public in failing to post signs and placards warning the public of any and all conditions that would pose a hazard to its customers," which caused her to fall and sustain severe injuries. Am. Compl. ¶4, 6. She seeks $350,000 in compensatory damages plus attorney's cost and fees. Am. Compl. ¶7.
Ms. Robinson entered the store and shopped in the vegetable department, fruit department, produce department, deli, and bakery. Dep. of Robin Robinson 37-41 (hereinafter "Robinson Dep."). After shopping, Ms. Robinson approached the self-checkout area so that she could check herself out and leave the store. Id. at 41. Ms. Robinson contends that, upon entering this area, her feet "c[ame] from underneath [her], her left side bent and [she] went down." Id. at 41-42. As the surveillance video shows, Ms. Robinson entered the self-checkout area parallel to the spill. After entering the area, Ms. Robinson turned perpendicular to the spill, pushed her shopping cart across the spill, and went down slowly onto one knee. All the while, Ms. Robinson was grasping the shopping cart and looking around. Defs.' Mot. Summ. J. Exs. 4J, 4K, 4L, 4M.1 Ms. Robinson contends that she noticed nothing abnormal about the condition of the store's floor while approaching the self-checkout area. Robinson Dep. 48, 54. Ms. Robinson admits that, after her fall, she noticed a liquid substance on the floor. After examining the liquid, Ms. Robinson was able to observe details about its color and size. Id. at 71-72. In particular, Ms. Robinson stated that the spill "[l]ooked like the same color of the floor really," that the "[f]loor look[ed] like a beige," and that the spill was "about a puddle" in size. Id. at 70-71. Ms. Robinson acknowledged that nothing was hiding the liquid substance from her view, and that she was able to see it without difficulty when she stood directly above the spill. Id. at 73. When asked whether, "if [she] had been looking at the floor looking for this liquid, would [she] have been able to see it," Ms. Robinson responded, "I guess." Id.
Courts should grant summary judgment only if the pleadings, discovery, disclosure materials, and affidavits show that "there is no genuine dispute as to any material fact and themovant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If evidence adduced to support a material fact "is merely colorable or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). "As to materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248.
In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). If the nonmoving party bears the burden of proof, "the burden on the moving party may be discharged by 'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If the moving party shows such an absence of evidence, the burden shifts to the nonmoving party to set forth specific facts illustrating genuine issues for trial. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The trial court has an "affirmative obligation" to "prevent 'factually unsupported claims [or] defenses' from proceeding to trial." Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (quoting Celotex, 477 U.S. at 323-24).
Federal courts sitting in diversity apply the substantive law of the forum state, including that state's choice of law rules. See Salve Regina Coll. v. Russell, 499 U.S. 225, 226 (1991) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). For tort claims brought in Virginia, the substantive law of the place where the injury occurred governs the proceeding. See Frye v. Commonwealth, 231 Va. 370, 376, 345 S.E.2d 267, 272 (1986). Plaintiff's injury occurred inVirginia, so Virginia's premise liability law applies.2 To establish actionable negligence under Virginia law, Plaintiff must show "the existence of a legal duty, a breach of that duty, and proximate causation resulting in damage." Atrium Unit Owners Ass'n v. King, 266 Va. 288, 293, 585 S.E.2d 545, 548 (2003).
A business owes its customers a duty of ordinary care when they are on the business's premises. See 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)). This duty includes an obligation to remedy or warn of defects of which the business has knowledge or should have knowledge. Fobbs v. Webb Bldg. Ltd. Partnership, 232 Va. 227, 229, 349 S.E.2d 355, 357 (1986); Appalachian Power Co. v. Sanders, 232 Va. 189, 193-94, 349 S.E.2d 101, 104-05 (1986).
This duty is, however, discharged where the defect is "open and obvious to a reasonable person exercising ordinary care for his own safety." Fobbs, 232 Va. at 229; Sanders, 232 Va. at 193-94. The Supreme Court of Virginia has held repeatedly that "where a defect is open and obvious to persons . . . it is their duty to observe the defect." Town of Virginia Beach v. Starr, 194 Va. 34, 36, 72 S.E.2d 239, 240 (1952) (citing South Norfolk v. Dail, 187 Va. 495, 47 S.E.2d 405 (1948)). More specifically, a business need not warn of unsafe conditions where the dangerous condition is open and obvious and "patent to a reasonable person exercising ordinary care for his [or her] own safety." Tate v. Rice, 227 Va. 341, 345-46, 315 S.E.2d 385, 388(1984); see also Tazewell Supply Co. v. Turner, 213 Va. 93, 96, 189 S.E.2d 347, 349-50 (1972); Culpepper v. Neff, 204 Va. 800, 804-05, 134 S.E.2d 315, 318-19 (1964); Gall v. Tea Company, 202 Va. 835, 837, 120 S.E.2d 378, 380 (1961).
Defendants argue vigorously that there is no dispute the spill is an open and obvious condition. Defendants highlight statements in Ms. Robinson's deposition, in which she stated that, after falling, she was able to see the liquid and that nothing hid the liquid from her view. Robinson Dep. 72-73. Defendants also stress Ms. Robinson's reply of "I guess" in response to the question, "[I]f you had been looking at the floor looking for this liquid, would you have been able to see it?" Defendants contend that Ms. Robinson's response amounts to an admission that the spill was open and obvious. I do not agree.
Ms. Robinson's uncertain, conjectural reply hardly amounts to an admission that, had she been looking at the floor, she would certainly have seen the spill. To the contrary, Ms. Robinson stated that the liquid "[l]ooked like the same color of the floor really." Robinson Dep. 70-71. From this fact, a jury could reasonably find that, even if Ms. Robinson had been looking at the floor, she would not have been able to see the liquid because it blended with the floor, obscuring it from view. Far from a damming admission, a jury could, considering Ms. Robinson's testimony as a whole, view her response as nothing more than idle speculation.
Defendants also rely heavily on Newcomb v. Food Lion, No. 95-3044, 1996 WL 469902 (4th Cir. 1996) (unpublished). In Newcomb, the plaintiff, on a rainy day, slipped at the entrance of a Food Lion store. Id. at *1. The district court granted summary judgment to Food Lion, finding that the "wet floor was sufficiently open and obvious" as a matter of law. Id. at *2. The Fourth Circuit affirmed. Defendants argue that, by analogy, if puddled rain—a clear, transparent liquid—is sufficiently open and obvious, then surely any puddled liquid on the floor must beopen and obvious. Thus, Defendants argue, even if the liquid was the same color as the floor, it would be no more obscure than puddled rain.
Defendants misread Newcomb. In Newcomb, the Fourth Circuit held that: "As a matter of law, the Plaintiff should have been guard for a wet floor, evinced by footprints, on a rainy day in an area directly inside the entrance of the store." Id. at 2 (emphasis added). While it may be true that rain is no more visible than a beige liquid on a beige floor, it was the presence of external factors—that it was raining, that wet footprints led to the entrance of the store, and that plaintiff was approaching the entrance—that should have alerted the plaintiff in Newcomb to the hazard. Here, no such factors exist. It is natural to expect that the entrance of a store will be slippery on a rainy day. Our Plaintiff, however, had no reason to expect that a liquid would be in the floor near the self-checkout area.3 Aside from the contested allegation that Plaintiff was verbally warned by Kroger employees about the...
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