Cerquera v. Supervalu Inc. et al, No. 1:2009cv00829 - Document 37 (E.D. Va. 2010)
Court Description: MEMORANDUM OPINION re: 22 Motion For Summary Judgment. (See Memorandum Opinion For Details). Signed by District Judge Claude M. Hilton on 5/25/10. (nhall)
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IN THE UNITED FOR THE STATES DISTRICT EASTERN DISTRICT COURT OF VIRGINIA Alexandria Division MAY 2 52010 LUZ M. CERQUERA, CLLI; ) ) Plaintiff, ) v. ) SUPERVALUE, INC., et al. Civil Action No. 01:09-cv-829 ) Defendants. ) MEMORANDUM This matter comes before OPINION the Court on Defendants' Motion for Summary Judgment. On May 8, Court Plaintiff for the County of other things, Defendants' she 2009, Fairfax. The Complaint that on or about November 14, negligence, slipped and Pharmacy filed a Complaint {"SFW") Fairfax County, fell the aisles On July 16, Answer to the Complaint in the Fairfax and on July 2009, lawsuit to this among 2005, of by reason of injured when a Shoppers Circuit 2009, Defendants Court for the Defendants Food & in filed an County of timely removed the Court. Plaintiff entered into the SFW store shopping. asserts, located on Little River Turnpike Virginia. 25, Circuit Plaintiff was caused to be in one of store in the for purposes of She was accompanied by her husband, Joel Soto- Rodriguez. She and her husband were at the store to buy sugar, and look at other things. Upon entering the store, immediately to the sugar aisle. they went She and her husband walked side by side up the sugar aisle until Plaintiff stopped at the place on the aisle where the sugar was located. her husband separated. entered the aisle from the front of the store or the back, turned around to show her husband. she was falling, she As she was turning around she but she does not know where. She is unsure of what caused her fall. floor and a piece of stick." stick There was sugar or flour "like a sugar or a candy Plaintiff does not know if she stepped on the stick. Prior to her fall, floor. picked up a bag and let go of the bag of sugar she was holding and it landed somewhere, on the and in the aisle prior to her fall. Plaintiff stopped at the sugar area, As she and Plaintiff does not recall whether she does not know how long she was fell. At that point, Plaintiff never saw anything on the She also did not feel anything under her feet as she was walking in the aisle. Plaintiff does not remember whether she saw anything on the floor after she fell. At times, Plaintiff has claimed that she actually saw a white substance on the after her fall, and at other times she has only told that there was a white substance. potential items on the testified that she was Of the three floor either seen by Plaintiff her by some other person, floor or told to Plaintiff does not know which, if any, caused her to fall. In addition, an estimate, or sugar, Plaintiff does not know, how much area the substance, covered on the floor. floor. In terms of the which looked like flour Plaintiff also never substance which was allegedly on the know how the lollipop stick, and is unable to give floor. felt the Plaintiff does not or flour and/or sugar got on the location of her fall, Plaintiff believes it was in an area near the end of the sugar aisle closest to the back of of the store, but the aisle when she After her fall, she is not sure if she was completely out fell. Oscar Zuniga, an employee of Defendants, assisted her to her feet along with the help of her husband. Mr. Zuniga then called a manager and got a chair in which Plaintiff could sit. Thereafter, Mr. Zuniga found a lollipop stick in the aisle where she had fallen and showed it to her and her husband. Plaintiff's husband did not see his wife that he and his wife were in the store fall. He estimated seven to ten minutes the time they walked in until the accident happened. to Mr. Soto-Rodriguez, together. to the Near the back, that point, Mr. the store Plaintiff end of the aisle that and proceeded to walk towards stopped and obtained a bag of Soto-Rodriguez continued walking until Zuniga looking at him. According he and his wife entered the sugar aisle They entered from the front of from Mr. is closest the back. sugar. he At saw Mr. Zuniga yelled something to the effect of "Your wife," and Mr. wife on the floor. Soto-Rodriguez turned around and saw his He estimated he was ten feet from her at that time. Mr. Soto-Rodriguez recalled that there were other customers in the aisle when his wife fell, his wife was Mr. Zuniga. but the first employee to get to Thereafter, either Mr. Zuniga or a manager got a chair for his wife or had someone else get a chair, and the chair was placed outside the sugar aisle in the middle of the back aisle of the store. The chair was brought to the scene, and a female employee came to the area and gave pill. Mr. Soto-Rodriguez also began filling out a report. According to Mr. report, Mr. Soto-Rodriguez, while he was completing the Zuniga came from the aisle where the accident had occurred and brought him a lollipop stick. indicates the Plaintiff a that Mr. Zuniga gave him the Mr. Soto-Rodriguez stick and said, "Save this because you might need it." Plaintiff never told her husband that she slipped on the lollipop stick, and Mr. Soto-Rodriguez never saw the lollipop stick on the floor when he had walked through the aisle. Mr. Soto-Rodriguz walked through the aisle where happened, he felt it was not a lot, something like the accident sugar grain under his and it was not visible. Mr. Zuniga got on to the feet, but Soto-Rodriguez does not have any idea how the lollipop stick that was him by Mr. When shown to floor prior to his wife's fall. Neither Plaintiff, nor her husband, had any conversation with any of the employees they encountered on the date of the accident which suggested how the lollipop stick or sugar and/or flour got on to the floor of the store prior to Plaintiff's fall, or how long either had been there prior to her fall. At the time of the accident, Mamon Hakawati was an employee of Defendants and was working as the customer service manager. Mr. Hakawati first learned of the fall when Mr. to his attention. Mr. Zuniga brought it Hakawati offered assistance to the Plaintiff and brought her a chair. He made sure the Plaintiff was okay and then took a statement from her husband. Hakawati recalled that he had been in the area of fifteen to twenty minutes before it happened. anything on the floor at Mr. fall He did not see Zuniga was an employee of SFW and worked in the diary department of Zuniga, the that time. At the time of the accident, According to Mr. Mr. the store in question. he was assisting a customer with a question when he saw Plaintiff and her husband walking toward him. While talking to the customer he was helping, Plaintiff fall. According to Mr. the back aisle of time, the Zuniga, he saw the fall occurred on store near the dairy department. At the he was standing in that back aisle near the Plaintiff and her husband, and her husband was walking direction of aisle 1. Prior to the fall, toward him from the Mr. Zuniga had been checking a juice cooler to see what needed to be restocked. juice cooler was located near the end of aisles 6, 7, The and 8. Mr. Zuniga was walking from that area when the customer stopped to ask the question, the Plaintiff which he had just begun answering when he saw fall. After seeing the fall, Mr. Zuniga ran to the Plaintiff and asked if she was okay. The customer he had been speaking to also came and wanted to move Plaintiff, not to do so. Mr. but Mr. Zuniga Zuniga then walked quickly to store and obtained a chair from the cafeteria. returning to the scene, a manager. Mr. the Hakawati, he told an employee at the front to page was present, the manager, as was another employee. cleaning with paper towels. returning with the chair, Plaintiff. front of the As he was By the time he got back to Plaintiff, the other employee was the instructed him Mr. He believed After Zuniga went and got some According to Mr. Zuniga, when he for returned, Plaintiff's husband showed him the lollipop stick. claims he actually saw the husband pick it up off ice Mr. the Zuniga floor. Mr. Zuniga recalled that the lollipop stick had remnants of a red lollipop on it as well as what he believed was saliva. Zuniga also recalled that after the husband picked up lollipop stick, the he noticed what he described as the remnants of "sugar or caramel" these Mr. remnants as from the red lollipop on the ground. in color, He described not white granular sugar. Mr. p.m. Zuniga estimated that and 7:00 p.m. It was his belief that had started at 5:00 p.m. the accident, Mr. the accident occurred between 6:30 the shift that evening Between the beginning of his shift and Hakawati believed that he probably would have been working on and off the sales floor loading milk and eggs in the dairy area, as well as working in the area of the juices. Prior to the fall, Mr. Zuniga claims he had no knowledge that a lollipop stick was on the floor and he never told the Plaintiff or her husband that he was aware of its presence. Mr. Zuniga also denied giving the Plaintiff and her husband any indication which would have suggested that he was aware of the lollipop stick prior to the fall. stick was not on the According to Mr. Zuniga, floor while he was working. the lollipop He first saw it after Plaintiff's husband picked it up and showed it to him. Under Rule 56{c) of the Federal Rules the Court must grant summary judgment if demonstrates "that there is no genuine of Civil Procedure, the moving party issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In reviewing a motion for summary judgment, courts view the facts in a light most favorable to the nonmoving party. (1986). Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 255 Once a motion for summary judgment is properly made and supported, the opposing party then has a genuine dispute as to any material the burden of fact does exist. showing that Matsushita Elec. 87 Indus. (1986). Co.. Ltd. v. Zenith Radio Corp.. 475 U.S. 574, 586- The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properlysupported motion for summary judgment; the requirement is that there be no genuine issue of material fact. at 248. "Rule 56{e) the pleadings and by 'depositions, file,' 477 U.S. requires the nonmoving party to go beyond [her] own affidavits, answers to interrogatories, designate Anderson. or by the and admissions on ^specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett. 477 U.S. 317, 324 (1986). In an action in federal court where jurisdiction is based upon diversity of citizenship, Erie R.R. Co. Virginia law, v. Tompkins, the relevant state law controls. 304 U.S. 64, 78 (1938) . Under the owner of premises is not an insurer of his invitee's safety. Rather, the owner must use ordinary care to render the premises reasonably safe for the invitee's visit. Holcombe v. 248 Va. NationsBanc Financial Services, 445, 447 (1994). "[I]n order to hold the owner of property liable for injuries sustained by an invitee due to the unsafe condition of the premises, it must be shown that the owner had knowledge of the alleged unsafe condition, length of time ordinary care as to make it or that it had existed for such a the owner's to have discovered it." duty in the exercise of Cannon v. Clarke. 209 Va. 708, 712 (1969)(citations omitted). the plaintiff must In premises liability cases, introduce evidence of the responsible person's actual or constructive knowledge of the defective condition on the premises in order to establish a prima negligence. Grim v. Rahe, Inc.. 246 Va. facie 239, case of 242 (1933). Where there is no evidence of actual knowledge of a dangerous condition and the issue is one of fails constructive knowledge, if the evidence to show when a defect occurred on the premises, plaintiff has not made out a prima responsibility of why and how the conjecture, Lawson v. the facie case. and if that and random judgment, John Doe. Administratrix v. It Plaintiff who alleges negligence accident happened, guess Id. the 239 Va. Draper, 477, 482 204 Va. she (1990) 319, 322 is cannot is the to show left to recover. (quoting Weddle. (1963). While many factual discrepancies may exist between the recollections of exact the various location of was on the floor, issue of notice evidence the knowledgeable persons fall and the description of there are no material in this case. facts as exactly what in dispute on the Plaintiff has not put that any employee or agent of to the SFW caused the forth any lollipop stick or sugar and/or flour to be on the floor. Plaintiff's negligence Complaint, is that theory, SFW allowed and/or flour to remain on the the as set lollipop forth in her stick and sugar floor and failed to warn her of their presence. negligence, In order to make out a prima facie case of Plaintiff has to have some evidence that SFW was aware of the existence, prior to her fall, that allegedly caused her fall. this actual notice, case of of the thing or things If Plaintiff lacks evidence of Plaintiff may still make out a prima facie constructive notice by offering some evidence as to when the alleged dangerous condition was created on the floor prior to her fall period, so that a jury can consider whether, in that SFW should have discovered and remedied the condition in the exercise of evidence, its duty of reasonable care. exercise of reasonable lollipop and sugar and/or flour in the care since objects were dropped on the fall as it period of Without such the jury would be left to speculate as to whether SFW should have discovered the it is time prior to just as likely that the for some unreasonably long fall. her husband, and all the witnesses have all testified that they had no knowledge of items on the no evidence floor prior to the accident. in this case of actual notice. Therefore in this case the existence of Therefore there is All have also admitted that they have no idea how the items floor. the floor moments prior to Plaintiff's is that they had been there Plaintiff, the time came to be on the there is also no evidence as to how long the condition existed prior to the the on this critical fact fall. In fact, is the testimony of Mr. 10 only evidence Hakawati, who said there was nothing on the prior to the Therefore, lacks sufficient evidence element of Plaintiff attempts appearance of her claim. to argue of this floors in 2005. any customers Plaintiff makes alleged trash in the this general whether it was trash that was store. to Plaintiff's how long fall, testified that prior to her is not know why she clear fell. to her fall lollipop customers, at he also complaining about no elaboration She offers no testimony of the accident, the type of and what, More if anything, importantly, floor such general Plaintiff she did not notice anything on the floor in her discovery deposition that and never felt stick and no husband and Mr. she does Plaintiff never saw anything on the was walking in the aisle. the store, fall. Plaintiff prior on notice. such trash had been on the trash had to do with her fall. herself "trashy" supposedly located in the store, there on the date trash that existed, prior the overall to the actions of admitted that he did not recall about that Zuniga testified that he believed the appeared trashy due trash on the to prove notice, the SFW should have put Defendants However while Mr. times, to 20 minutes fall when he was performing an inspection. Plaintiff an essential floor approximately 15 anything under her feet as She has no one idea whether she saw her step on Zuniga both claim that 11 it. floor she stepped on Plaintiff's the other found the stick, but neither can say whether it had anything to do with Plaintiff's fall on it. it, since neither actually witnessed Plaintiff step Plaintiff admits that she does not know if she stepped on but she also admits that does not remember feeling anything under her feet before she fell. Plaintiff speculates in her deposition that the lollipop stick and sugar and/or flour, some combination of fall, but admits the three, must have been the cause of her speculation is not evidence. to having a bag of Furthermore, is just as after likely that any white she seen after her fall was from this that flour on the Rodriguez it is floor prior to her fell. spillage there existed sugar and/or fall. testified to feeling grains as he walked in the sugar aisle, She substance Plaintiff may or may not have thrown bag as started to she went to the ground. testified to not knowing what happened to it it Plaintiff sugar in her hands when she fall and that she dropped it as Therefore; or Although Mr. of Soto- something under his feet he admitted it was not a lot, and Plaintiff did not remember feeling anything under her feet. It is speculation to assume Plaintiff walked over the exact area as her husband. In order to make out a prima against a premises a same Plaintiff facie case of liability owner or operator, must prove is that a dangerous negligence the first element or defective condition actually existed on the premises which proximately caused the 12 accident or injuries. As a result, In this case, a jury would be left caused Plaintiff's fall. Plaintiff She to do so. to speculate as to exactly what In addition, it is to show how and why her accident happened. allegations fails a plaintiff's burden Plaintiff's about what caused her fall are based on speculation. testified under oath that she does not know what caused her to fall. Therefore, Plaintiff has also failed to satisfy this burden. For Judgment the reasons stated above, should be GRANTED. Defendants' An appropriate Motion for Summary Order shall /s/ Claude M. Hilton United States District Judge Alexandria, May lS , Virginia 2010 13 issue.
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