Iris Panzetta v. Food Lion

2011 | Cited 0 times | E.D. Virginia | September 13, 2011


(Doc. No. 11.) Defendant moves the Court to enter summary judgm

THIS MATTER is before the Court

on Defendant's Motion for Summary Judgment.

GRANTS the Motion. to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, the Court ent in its favor, pursuant



accident at a Food Lion store on

The undisputed facts are as follows. Iris Panzetta ("Panzetta")

October 24, 2009. Panzetta arrived at Food Lion at

was involved in an

approximately 10:30 a.m. on the day of the accident. Upon entering the store, Panzetta

bananas were located. Panzetta s turned right and walked through an area of soda displays to get to the section where

Panzetta did not look at the floor before falling. She does not lipped on a grape and fell, breaking her hip.

grape had been on the floor nor h

know how long the

almost the same color as the floor. grape was intact or smashed when ow it ended up on the floor. She also does not know if the she slipped on it. Panzetta believes the grape was

accident. Weaver was in the back office when he learned Panzett

Robert Weaver, the Food Lion store manager, was working the day of Panzetta's

arrived at the scene of the accident, the grape had already been cleared from the floor. a fell. When Weaver

correct anything that n Weaver stated that, as store man eeds correcting in the store. Weaver als ager, it is his duty to make sure he and all his associates

the produce area to be inspected frequently and constantly. The produce department was o stated store policy requires

swept on average once every fift

Panzetta's husband, James Panzet een to thirty minutes the day of the accident.

Panzetta found his wife lying next to a soda display near the p ta, arrived at the store shortly after the fall. James

at the accident scene told him store employees had cleaned up a roduce section. An employee

nor does any party know the grape's origin.

No party can say how long the grape had been on the floor prior

smashed grape.

to Panzetta's fall,

County, Virginia, alleging Food Lion negligently allowed a grap

Panzetta filed a Complaint against Food Lion, LLC, in the Circuit Court for Lancaster

store floor and that Food Lion knew or should have known that t e to remain on the grocery

existed. Food Lion removed to this Court.

his slipping hazard

there is no genuine dispute as to any material fact and the mov ould be granted where "the movant shows that

as a matter of law." Fed. R. Civ. P. 56(a). outcome of the suit under the go

A motion for summary judgment sh



Only disputes over facts that might affect the ant is entitled to judgment

judgment. Factual disputes that are irrelevant or unnecessary w verning law will properly preclude the entry of summary

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the ill not be counted.



is an absence of evidence to burden of establishing the nonexistence of a triable issue of f

477 U.S. 317, 325 (1986) (internal quotation marks omitted).

support the nonmoving party s case. act by


Celotex Corp. v. Catrett, showing . . . that there

' "


Summary judgment is appropriate only where the record taken as a whole could

F.2d 371, 374 (4th Cir. 1992) (ci not lead a rational trier of fact to find for the non‐moving party." Tuck v. Henkel Corp., 973

and any competing, rational inferences [are resolved] in the li ting Anderson, 477 U.S. at 248--49). All

" factual disputes

party opposing [the] motion.

" Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) ght most favorable to the

(internal quotation marks omitted). (quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996))

a plaintiff fails to state specific facts and produce concrete

In most cases, issues of negligence are not susceptible to summ

however, a defendant may be entitled to that relief. See Vaughn evidence to support her claim, ary judgment. Where

S.E.2d 482, 488 (1947).

v. Huff, 186 Va. 144, 155, 41


St. Paul Fire & Marine Ins. Co. v. Am. Int

A federal court sitting in diversity must apply the substantive

2004). The scope of premises liab

'l Specialty Lines Ins. Co., 365 F.3d 263, 272 (4th Cir.

law of the forum state.

A plaintiff asserting a negligen ility in this case is therefore governed by Virginia law.

proof that the defendant breached some duty which it owed the p ce claim must introduce "evidence which constitutes

such breach, [the] injury." Colonial Stores Inc. v. Pulley, 203 Va. 535, 537, 125 S.E.2d 188, laintiff, and caused, by

190 (1962) (citing Murphy v. J. L. Saunders, Inc., 202 Va. 913, 917, 121 S.E.2d 375, 378

(1961)). The plaintiff bears the b Tolson, 203 Va. 13, 15, 121 S.E.2d 751, 752 (1961). urden of proving negligence. Safeway Stores, Inc. v.

are well settled." Winn‐Dixie Stores, Inc. v. Parker, 240 Va. 1

The Supreme Court of Virginia has said the "rules applicable to slip‐and‐fall cases

(1990). Under these well‐settled r

80, 182, 396 S.E.2d 649, 650

ules, a store owner owes a customer

In carrying out this duty it [is] required to have the premises the duty to exercise ordinary care toward her as its invitee up

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 safe condition for her visit; to remove, within a reasonable ti on its premises. me, foreign

in a reasonably

of known to the defendant. the unsafe condition if it [is] unknown to her, but [is], or should [be],

the plaintiff

Pulley, 203 Va. at 537, 125 S.E.2d at 190.

'affirmative conduct' of the defe

In slip‐and‐fall cases, Virginia ndant, and those resulting fro law distinguishes "dangerous conditions caused by

Costco Wholesale Corp., 220 F. App'x 179, 181 (4th Cir. 2007) (per curiam) (citing Ashby v. m 'passive conduct.'"

Turley v.

"affirmative" conduct. Allowing water to accumulate in a lobby, o the floor, is an example of

no evidence of record to establish Food Lion placed the grape o

of "passive" conduct. Ashby, 247 Va. at 169, 440 S.E.2d at 605. Panzetta concedes there is

voluntary movement of a plant, c Faison & Assocs., Inc., 247 Va. 166, 169--70, 440 S.E.2d 603, 60 ausing a "slimy" leaf to fall t

5 (1994)). An employee's

by contrast, is an example

Lion should be held liable for passive conduct.

This summary judgment motion therefore turns on whether a jury n the floor before she fell. could find that Food

only if he shows that 'the defendants had actual or constructiv

Where, as here, the hazard "resulted from passive conduct, the e notice' of the dangerous plaintiff may prevail

This requires a showing that the defendant "'knew or should hav condition." Turley, 220 F. App'x at 181 (quoting Ashby, 247 Va. at 170, 440 S.E.2d at 605).

of the [hazard] that caused [the within a reasonable time or to e known[ ] of the presence

warn of its presence.'" Id. at 182 (quoting Ashby, 247 Va. at 170, 440 S.E.2d at 605); see

] fall and failed to remove it

also Great Atl. & Pac. Tea Co. injuries received from falls caused by a foreign substance on t

v. Berry, 203 Va. 913, 915--16 (1962) ("In cases dealing with

public is invited to step, courts have consistently held that before recovery can be had it he floor of a store where the

must be shown that the substance constituted a hazard and that the exercise of reasonable care should have known it was there."). the defendant knew or in

actual or constructive knowledge

Panzetta argues the evidence presents a jury question as to whether Food Lion had

of the slipping hazard on which she fell before her

notice of any grape or other sub accident. Food Lion contends Panz stance on the floor in the area etta has not shown Food Lion h

in which Panzetta fell, and ad actual or constructive

regarding the grape or any other substance. that Food Lion consequently has discharged any duty if may have had to Panzetta

Food Lion had actual notice of t

In support of its position, Food he grape. As to its argument th

Lion states that there is no evidence even suggesting

constructive notice of any grape

at Food Lion had no

case in which a plaintiff slipped on a snap bean while shopping

or other substance, Food Lion

in a Winn‐Dixie grocery relies on Parker, supra, a

store. In Parker, an employee had mopped the area where the pla minutes before the fall. There was no evidence that the defendant knew the bean was on intiff fell within two

there. 240 Va. at 184, 396 S.E.2d at 651. Repeating verbatim what it had said in Pulley, the the floor, nor was there any evidence showing the length of time the bean may have been

floor an instant before [Parker] struck it as it [was] to infer court determined "[i]t [wa]s just as logical to assume that [the bean] was placed on the

enough that [Winn‐Dixie] should, Id. (quoting Pulley, 203 Va. at 537--38, 125 S.E.2d at 190).

in the exercise of reasonable

that it had been there long care, have known about it."

on the floor for any specific pe

Food Lion contends that, as in Parker, there is nothing to sugg riod of time. Weaver testified store policy requires the est the grape had been

produce department to be swept on average every fifteen to thirty minutes, and Weaver

store policy on the day of the accident. This, combined with application of the rule that no had no knowledge that would suggest the produce area was not swept in accordance with

facts allow an inference to be drawn as to how long the grape w is nothing in evidence to suggest the grape had been on the floor for any specific period of as on the floor where there

about the grape. time, leads to the conclusion that there is no basis for finding Food Lion should have known

2007) (per curiam). The plaintiff

Food Lion next cites Turley v. Co pp'x 179 (4th Cir.

The plaintiff was unaware of the exact nature of the substance on which he slipped. Id. at

in Turley slipped and fell wh stco Wholesale Corp., 220 F. A ile getting a shopping cart.

180. Facts showed the area had bee employee did not see the slippery substance at that time. Id. a n inspected thirty minutes before the fall and the store

Costco knew or should have known of the presence of the substan granted summary judgment and the Fourth Circuit affirmed, findi t 182. The district court ng there was no evidence

fell. Id. at 183.

ce on which the plaintiff

not been conclusively established and an inspection time of no

Food Lion argues the instant case presents a similar situation. more than fifteen to thirty

The grape's origin has

origin, the length of time the grape was on the floor, or whether Food Lion employees failed minutes has been offered. Because no evidence has been offered regarding the grape's

dispute and Panzetta is unable t to see the grape during an inspec re no material facts in

o meet her burden of proof. Thu tion, Food Lion argues there a s, summary judgment is

Panzetta responds that in both Pulley and Parker, the Supreme Court of Virginia

focused on the fact that there w

Panzetta, these time periods of "non‐observation" were the critical fact that lead to the observed the areas at issue and as a period of time between whe the time when the plaintiffs slipped and fell. According to n the store employees

only been on the floor for an inst court's conclusion in each case that it was just as logical to assume the slipping hazard had

long enough that a store exercising reasonable care should have known about it. ant as it was to infer that the hazard had been present for

Panzetta asserts that this case is distinguishable from Pulley ll was under "constant" and Parker, and thus

presents a jury question, because the area in which Panzetta fe

observations of the sales floor a supervision. Panzetta states Weaver testified that "produce ass s needed to ensure a safe environment for all guests." (Pl. ociates are trained to make

"frequently" and "[a]ll the time" and agreed that the produce floor is "under constant Attach. 1, at 15:23--25.) He also testified that the produce department floor is inspected

undisputed facts states the store policy required the produce area to be "inspected inspection." (Pl. Attach. 1, at 16:5--13.) Moreover, Panzetta argues, Food Lion's statement of

frequently and constantly." (Def. Mem. In Support, at 3.)

Panzetta next argues the evidenc

worked in the produce department


the day of Panzetta's accident e shows Lisa Zdyb, a Food Lion

, kept the area under employee who

constant surveillance. Zdyb testified she keeps her area of the store clean during her entire

19.) Zdyb stated although "[g]rocery" was responsible for clean shift and she continuously cleaned her area on the day in question. (Pl. Attach 2, at 8:11--

fell, Zdyb was responsible for cl 7:18--8:2.) Zdyb stated the area w eaning the area around the gra here Panzetta fell was fifteen pe counter. (Pl. Attach. 2, at ing the area where Panzetta

feet away from the grape

display and if she had seen a grape in the area where Panzetta fell, it would have been her

job to clean it up. (Pl. Attach. 2, at 9:24--10:9.)

Panzetta believes these facts rem

Pulley, and raise a jury question

that Food Lion, in the exercise of ordinary care, should have known about it. The facts in een on the floor long enough

Parker and Pulley are that there were periods of time before the falls when no store

slip hazard had been on the floor employees observed the area where the plaintiffs fell. Thus, the question of whether the

long enough for the store to have discovered it was open

for speculation. According to Panzetta, the evidence in this case is different: it shows there

Panzetta fell and the fall itself. Specifically, there is testi was no lag time between when the last Food Lion employee observ mony that the area where Panzetta ed the area where

occurring or recurring." If the ar fell was under constant inspection. Panzetta argues "constant" means "continually

that a Food Lion employee, in the exercise of ordinary care, sh could find the grape was on the floor for a sufficient amount o ea was under constant inspect f time before Panzetta fell so ion, Panzetta argues, a jury

ould have seen the grape and

on the floor before Panzetta f od Lion employees knew, or ell.

as to whether the grape had b ove this situation from the rulings in Parker and

should have known, the grape was cleaned it up before the fall. Thus, the jury could find the Fo

The evidence, however, shows the area was not under "constant" supervision as

defined by Panzetta. To the cont

rogue grapes, had left the area and was in the checkout line pu rary, Zdyb, the employee responsible for clearing any

the floor prior to going to the checkout line. (Pl. Attach. 2,

Panzetta fell. (See Pl. Attach. 2, at 10:21--13:7.) Zdyb testified she did not see any grapes on rchasing candy when

area was not under "constant" supervision and "there is no evidence as to any period of at 12:2--5.) Thus, it appears the

presence of the alleged foreign substance or that they should, time over which the defendant or its agents or servants actuall in the exercise of reasonable y had knowledge of the

751, 752 (1961). care, have had such knowledge." Safeway Stores, Inc. v. Tolson, 203 Va. 13, 15, 121 S.E.2d

As was the case in Pulley and Parker, there is no evidence in the instant matter

nor is there any showing of the length of time it may have been there. It is just as logical to assume that it was placed upon the floor an that [Food Lion] knew of the presence of the [slipping hazard] on the floor,

that it had been there long own about it. instant enough before that

[Food Lion] should, in the exercise of reasonable care, have kn [Panzetta] struck it as it is to infer


Parker, 240 Va. at 184, 396 S.E.2d at 651 (quoting Pulley, 203 Va. at 537--38, 125 S.E.2d at

Two equally competing inferences can be drawn from the evidence

that the grape was on the floor f

impute knowledge of its presence or a long enough period of time that it would be fair to

to the Food Lion, and that the grape was on the floor for

a mere instant, in which case it would be unfair to impute knowledge of the grape's

916--17, 128 S.E.2d at 313--14 ("In some jurisdictions the courts permit juries to speculate order to impute knowledge, and t presence to Food Lion. Virginia courts do not permit recovery if the jury has to speculate in herefore liability, to the defendant. See Berry, 203 Va. at

in this case-

are in the minority. . . . These upon how long a foreign substance had been on the floor or how it got there. Such decisions

'constructive notice' in the law of negligence. . . . [M]ost ju

decisions represent a liberal expansion of the doctrine of risdictions do not follow this

it is necessary for the jury to view. We reject it. . . . The plaintiff cannot be said to have speculate or guess in order to made out a case for the jury when

Tolson, 203 Va. at 16, 121 S.E.2d at 753 ("Where the evidence s allow her a recovery."); see also

things may have caused the injury, for some of which the defend hows that any one of several ant is responsible and for

plaintiff has failed to establish a case."). some of which it is not, and leaves the real issue to speculation and conjecture, then the

enough for Food Lion to have actu Because Panzetta has presented al or constructive knowledge o no evidence that the grape was on the floor long

made a prima facie case of negligence.

f its presence, she has not

no triable issues exist. Accordingly, the Motion for Summary Ju th a prima facie case of negligence, the Court finds

Because Panzetta has not set for



Let the Clerk send a copy of this Memorandum Opinion to all cou dgment is GRANTED.

An appropriate Order shall issue.

nsel of record.

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