Rice v. Food Lion, LLC, etc., No. 4:2010cv00122 - Document 44 (E.D. Va. 2011)
Court Description: OPINION and ORDER granting defendant's renewed motion for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure (ECF No. 39); directing the Clerk to enter judgment in favor of the defendant in this case; pursuant to Rule 50(c)(l), conditionally granting plaintiff's motion for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure (ECF No. 35). Signed by Magistrate Judge F. Bradford Stillman and filed on 7/26/11. (mwin, )
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGIB 2 6 2011 IA Newport News Division ALONZO RICE, CLE^F^-~rc^T SR. , Plaintiff, v* Case No.: 4:10cvl22 FOOD LION, LLC, et al., Defendants. OPINION AND ORDER This matter was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. I. This is a personal pursuant to 28 U.S.C. pursuant to 28 PROCEDURAL BACKGROUND injury action, §§ 1441 and 1446. U.S.C. § removed to this Court The Court has jurisdiction 1332. The plaintiff initiated this action by filing his complaint in the Circuit Court of the City of Newport News, Virginia, serving it on the defendant's registered agent on August 24, ECF No. 1. September 13, 2010, 2010. and IcL_ removed 2010, of the Federal Rules ECF No. 9. the action to this Court on The parties consented to proceed before a United States Magistrate Judge, 73 2010. The defendant filed its answer in the state court on September 16, Rule and pursuant of Civil to 28 U.S.C. § 63 6 and Procedure on October 13, The defendant filed a motion for summary judgment on February 28, 2011. 2010. ECF No. ECF No. 14. The Court denied that motion on March 25, 27. On March 29 and 30, 2011, the Court held a jury trial in this matter at the federal courthouse in Newport News, close of the plaintiff's evidence, Mar. 29-30, of the Federal Rules of which the Court denied. 2011, ECF No. 33. At the the defendant moved for judgment as a matter of law pursuant to Rule 50(a) Civil Procedure, Virginia. See Trial Tr. 104-10, At the close of all evidence, the defendant again moved for judgment as a matter of law pursuant to Rule 50(a), case was which the Court also denied. then submitted to the jury. deliberation, verdict. the jury indicated See id. at 119-26. Following several hours that it was unable to they deemed appropriate at that time. reach a to make any oral motions The defendant renewed its motion for judgment as a matter of law pursuant to Rule 50(b), the plaintiff moved for a new trial pursuant to Rule 59. the responsive, 7(F). of The Court discharged the jury without a verdict. The Court then invited the parties directed The parties to file written motions and and The Court supporting, and rebuttal briefs in accordance with Local Civil Rule On April 15, 2011, the plaintiff filed his written motion for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure, ECF No. 35, and the defendant filed its written renewed motion for judgment as a matter of law pursuant to Rule 50(b) 2 - of the Federal Rules of Civil Procedure, ECF No. 39. Each party filed a brief opposing the other party's motion on April 18, Nos. 42-43. 2011. ECF Neither party filed a rebuttal brief. Having carefully reviewed the motion papers submitted by both sides and all the evidence of record, the Court finds this matter ripe for determination on the papers without any further hearing, pursuant to Local Rules of Civil II. Civil Rule 7(J) and Rule 78(b) of the Federal Procedure. STANDARD FOR JUDGMENT AS A MATTER OF LAW UNDER RULE 50 Rule 50 provides that, after a jury trial and upon a renewed motion for judgment as a matter of law, the Court may "direct the entry of judgment as a matter of law" in favor of the moving party where "the court finds that a reasonable jury would not have a legally sufficient basis to find" in the non-moving party's favor. Fed. R. Civ. P. 50(a)&(b). The standard under Rule 50 is that judgment as a matter of law must be granted wif, under the governing law, reasonable conclusion as to the verdict." Lobby, Inc., Nationwide 477 Mut. U.S. Ins. 242, Co., 250 93 1228, ("Judgment as a matter of law is proper credibility of the evidence there F.3d 823, 826 (4th Cir. 1995)). _ -5 _ see also 1234 (4th Liberty Benner Cir. v. 1996) 'when without weighing the can conclusion as to the proper judgment.'") 45 See Anderson v. (1986); F.3d there can be but one be but one reasonable (quoting Singer v. Dungan, "If reasonable minds could differ as to the import of the evidence, matter of law should not be granted. however," judgment as a See Anderson, 477 U.S. at 250-51. If the moves defendant for in [judgment a run-of-the-mill as a matter of civil law] case based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict-ttwhether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus Id. 442, at 252 448 of proof is imposed." {quoting Improvement Co. (1874)) v. Munson, 81 U.S. (14 Wall.) (emphasis in original).1 Judgment as a matter of law may be appropriate even where the Court has previously denied a motion for summary judgment based on abstracts of the same evidence. See Maione v. Microdyne Corp., 26 F.2d 471, 475 n.4 (4th Cir. 1994). Substantively, the "reasonable jury" rule applied in the context of a Rule 50 motion for judgment as a matter of law is "very close" to the "genuine dispute" test used in adjudicating motions for summary judgment. See Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 745 n.ll (1983). "The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while [judgment as a matter of law] motions are made at trial and decided on the evidence that has been admitted." Id. Nevertheless, "trial judges are formally encouraged for cogent reasons of judicial economy ordinarily to submit all but the plainest cases for jury verdict subject to the reserved ruling Musgrave, 749 . . . ." F.2d 1092, Colonial 1098 n.3 - 4 Lincoln-Mercury, (4th Cir. - 1984). Inc. v. w[I]n entertaining a motion for judgment as a matter of law, the court should review all doing so, however, favor the of weigh Inc., Cavalier Hotel Corp., Norfolk & W. is evidence in the record. In the court must draw all reasonable inferences in or Plumbing Prods., there the non-moving party, determinations v. of Ry. the and 133, 48 F.3d 1343, vsubstantial 13 may not evidence." 530 U.S. Co. , it 150 evidence Reeves (2000); 1349-50 F.3d 807, Sanderson see also Martin v. (4th Cir. to credibility v. (4th Cir. 810 opposed make 1995); Goedel 1994). the motion, "If that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment could reasonably return a verdict for denied . . . the .'" nonmoving Martin, Interstate & Ocean Transp. see also Konkel v. Cir. 1999) credibility support [a] of 48 F.3d Co., Bob Evans (WA Rule 50(b) court determines, party, 623 the at 1350 F.2d 888, Farms Inc., motion should (quoting 891 165 Wyatt (4th Cir. F.3d 275, 1980)); 279 witnesses, jury's finding that substantial evidence does the plaintiff; (3) not [in favor of the non-moving party]."). FACTUAL BACKGROUND The plaintiff presented testimony by eight witnesses: year old son; (4th motion should be granted if a district This case was tried before a jury on March 29 and 30, Sr., v. without weighing the evidence or considering the III. Rice, be (2) Alonzo Rice, Jr., Brandon Marsh, - Alonzo the plaintiff's 13- the plaintiff's nephew, 5 (1) 2011. who drove the plaintiff and his son to the grocery store that day; (4) Lambert, a the manager at plaintiff's (8) (5) Patricia Whipple, the Newmarket Mall Food Lion store; manager on duty at Hurst, wife; (6) Althea produce Ronald Ward, the Newmarket Mall Food Lion store; (7) Ronald the store manager of the Newmarket Mall Food Lion store; Dr. Michael testifying witness, by Hooker, the deposition. recalling Ms. plaintiff's The Whipple orthopedic defendant to present Two exhibits were admitted into evidence: presented additional (1) a and surgeon, only one testimony. a surveillance video from the Newmarket Mall Food Lion store depicting the produce area for a period of 18 minutes leading up to the plaintiff's fall; (2) a set of medical bills documenting the plaintiff's and medical treatment and related damages. The facts of this case are largely undisputed. in July 2009, the plaintiff's nephew, Mr. On a hot day Marsh, drove the plaintiff and his son to the Newmarket Mall Food Lion store to shop for groceries. Once plaintiff and his in son, the store, and then produce section, walked Marsh separated from the looking around on his own. and his son went to the deli, order, Mr. to at the front of the store, the back of the store, placed an through the so the plaintiff could get a drink of water from a water fountain located at the back of the store. drink of water, The plaintiff After getting his the plaintiff turned around and began walking back to the deli at the front of the store, - 6 - his son trailing behind him. While walking near a display of summer fruit in the produce area, the plaintiff slipped and fell down onto causing a transverse fracture of the patella. his left After his fall, plaintiff and other witnesses observed a smashed piece of possibly a plum, nearby.2 The evidence suggests patella to split into multiple fragments. the fruit, that plaintiff's knee may have landed directly on a fruit pit, his knee, the causing Ultimately, the plaintiff underwent surgery to reposition and wire his patella back together. Notwithstanding this reconstructive surgery, the plaintiff has suffered a permanent impairment of his knee with the likely prospect of accelerated joint degeneration and increased pain in the future as a result of his injury. IV, Under Virginia law, ANALYSIS "negligence cannot be presumed from the mere happening of the accident. to prove that the accident The burden is upon the plaintiff was defendant as a proximate cause." 121 S.E.2d 375, 378 <Va. 1961). due to the Murphy v. negligence J.L. In doing so, Saunders, »[i]t is of Inc. , incumbent upon the plaintiff to show why and how the accident happened. that is left to conjecture, guess or random judgment, is not entitled to recover." the If the plaintiff Id. 2 Various witnesses observed that the smashed piece of fruit was brown or purple in color, surmising that it was a plum, while others suggested that it might be a grape or some cherries. The specific type of fruit is not material. - 7 - In Colonial Stores Inc. v. Pulley, 125 S.E.2d 188 (Va. 1962), the Supreme Court of Virginia concisely stated the rules applicable to slip-and-fall cases such as this one: The [store owner] owed the [customer] the duty to exercise ordinary care toward [him] as its invitee upon its premises. In carrying out this duty it was required to have the premises in a reasonably safe condition for [his] visit; to remove, within a reasonable time, foreign 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 the [customer] of the unsafe condition if it was unknown to [him], but was, or should have been, known to the [store owner]. Id. at 190. There is no evidence in the record to suggest that Food Lion or one of its employees placed the offending piece of unidentified fruit on the floor where the plaintiff slipped and fell. Winn-Dixie Stores, Inc. v. Parker, (distinguishing Memco Stores, 1986)).3 396 S.E.2d 649, Inc. v. Yeatman, 651 See id. ; (Va. 348 S.E.2d 228 1990) (Va. It is therefore "incumbent upon the plaintiff to prove that the defendant knew that it was there, or, to show that the [fruit] had been there long enough that the defendant ought to have known of its presence, 3 In Yeatman, and, in either event, failed to remove it the Supreme Court of Virginia held a store owner liable for negligence where it positioned a succulent plant in such a manner that its moist leaves could and did fall into an aisle, without any further intervention, using the aisle. creating a hazard to customers See Yeatman, 348 S.E.2d at 231. Winn-Dixie found Yeatman inapposite to a case involving a customer who slipped and fell on a snap bean that likely fell to the floor as a result of the intervening act of another customer rather than the store owner or its employees. See Winn-Dixie, 396 S.E.2d at 651. - 8 - within a reasonable time or to warn [him] Colonial Stores, of the danger." See 125 S.E.2d at 190. None of the testimony presented at trial established, or even suggested, that the defendant in this case knew that the piece of fruit upon which the plaintiff slipped was on the floor, nor that it had been there long enough that the defendant should have known of its presence. The plaintiff himself testified that he did not see the fruit until after he had already fallen, he did not know where it originated, the floor. and he did not know how long it had been on Trial Tr. The plaintiff's 83-85, 95-96, Mar. 29-30, son likewise testified that he did not see the fruit until after his father fell, despite having walked through the area just a few minutes earlier, Ms. 2011, ECF No. 33. Whipple, produce manager at id. at 16, 19. the Newmarket Mall store, acknowledged in her testimony that the plaintiff's fall occurred near a table containing a display of loose summer fruit, plums. Id^ at 43-44; see also id. at 64-65, 68 including (testimony of store manager that plums were stocked on opposite side of table adjacent to plaintiff's fall). She also acknowledged that, although Food Lion employees stack loose fruit so it doesn't roll off the display tables, customers are known knocking it to the floor. to rearrange Id^ at 43-44, the fruit, sometimes 50-51, 53-54, 115. Ms. Whipple further testified that it was her practice to pick up such fallen fruit immediately when she saw it. - 9 - id. at 50, 118. Ms. Whipple specifically testified that she was in the vicinity of the summer fruit display within a few minutes prior to the plaintiff's fall, that she was no more than ten feet away with a clear and unobstructed view of the area where he fell, and that she did not see anything on the floor. None of the other IcL_ at 46-48, witnesses present when the plaintiff who 53, 115-17. testified at trial were fell. A review of the surveillance video, adinitted into evidence as Plaintiff's Exhibit 1, confirms that Ms. Whipple indeed was in the vicinity in the minutes before the plaintiff's fall occurred. This surveillance video was recorded by a camera mounted on the wall or ceiling at the documenting the fall.4 rear of the store, eighteen minutes above leading up the to produce area, the plaintiff's At 16:30:00, Ms. Whipple could be seen stocking peppers along a "wet/dry wall" on the left-hand side of the screen.5 At approximately 16:34:08, Ms. Whipple moved from the wet/dry wall to the far side of what appears to be a display of tomatoes on a table fashioned to look like a two-wheeled wooden vendor's cart, mid-way The video is time-stamped in 24-hour military-time format. ^video begins at 16:30:00 and continues until 16:53:19. The plaintiff's fall occurs at approximately 16:48:10. At trial, the video was played from the start through the plaintiff's fall! in considering this motion, the Court has limited its review to this same time period, but a glance at the final few seconds of the video suggests that the remainder largely consists of the plaintiff lying on the floor with store employees and customers gathered around him, presumably to investigate or render assistance. See also Trial Tr. 40-41, - Mar. 10 - 29-30, 2011, ECF No. 33. between the wet/dry wall and the summer fruit display table next to which the plaintiff fell.6 the wet/dry wall. At 16:34:30, Ms. Whipple moved back to At 16:35:55, Ms. Whipple returned to the far side of the tomato table, where her feet could be seen moving as she stocked the far side of the display table. Four minutes later, at 16:40:08, Ms. Whipple moved back to the wet/dry wall, where she remained until approximately 16:47:00, when she moved on to attend to a potato display table visible in the lower right-hand side of the screen.7 At 16:47:08, colored shorts, the plaintiff (dressed in a white t-shirt, dark- and a dark-colored baseball cap) appearance in the surveillance video, made his first walking along the wet/dry wall on the left hand side of the screen as he moved from the deli to the water fountain at later, the rear of the plaintiff's son the store. A few seconds (dressed in a red t-shirt and shorts) followed after him, walking around the opposite side of the tomato table, skirting the area where the plaintiff later fell. At 16:47:55, the plaintiff could be seen walking back toward the front of the store, with his son trailing behind him. At 16:48:10, the plaintiff can be seen falling near the summer fruit display table. The surveillance video is grainy, and the camera's view of the area where the plaintiff fell is partially obstructed by 6 See also Trial Tr. 40, Mar. 29-30, 2011, ECF No. 33. 7 See also Trial Tr. 39, Mar. 29-30, 2011, ECF No. 33. - 11 - light fixtures. As a result, the area where the plaintiff fell cannot be seen in sufficient detail to identify anything on the floor, when it might have been placed there, or by whom. Throughout the eighteen minute period, several other customers can be seen walking through the aisle where the plaintiff fell without any difficulty, including two customers who walked through what appears to be the very same spot between 16:45:40 and 16:45:50, less than two and a half minutes before the plaintiff's fall. On a similar record, the Supreme Court of Virginia concluded that [t]here is no evidence in this case that the [store owner] knew of the presence of the [foreign object] on the floor, 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 instant before the [customer] struck it as it is to infer that it had been there long enough that the [store owner] should, in the exercise of reasonable care, have known about it. Colonial Stores, 125 S.E.2d at 190; see also Winn-Dixie, 396 S.E.2d at 651. The plaintiff argues in his opposition brief that Colonial stores an(3 Winn-Dixie are distinguishable based on the existence of surveillance video in this case. But, as described above, the surveillance video provides no additional insight into whether a piece of fruit was present on the floor where the plaintiff fell, how it got there, how long it had been there, or whether defendant otherwise knew or should have known of its presence. - 12 - the The evidence is just as inconclusive with the surveillance video as it would be in its absence. The plaintiff cites a Fourth Circuit opinion, Great Atlantic & Pacific Tea Co., 413 F.2d 51 Thomason v. (4th Cir. 1969), to suggest that the defendant may be held liable on the theory that its method of display loose fruit stacked at an angle on a display table inherently provides it with constructive notice of any fruit that might roll off a display table when disturbed by a customer. In Thomason, the Fourth Circuit held that a store may be held liable if "it is reasonably foreseeable that a dangerous condition is created by, or may commodities for sale." arise IcL from, the at 52. means used to exhibit But the Thomason "method of display'' theory of proving constructive knowledge in a slip-andfall case was expressly overruled by the Supreme Court of Virginia in Winn-Dixie Stores, Inc. v. Parker, 396 S.E.2d 649 (Va. 1990). See id. at 651 & n.3; see also Rodgers v. Food Lion, Inc., 103 F.3d 119, 1996 WL 673802, at *2 n.* (4th (unpublished per curiam table decision) Cir. Nov. 22, 1996) (recognizing overruling of Thomason and applying Winn-Dixie). The plaintiff also relies on a Supreme Court opinion, O'Brien v. Everfast, Inc., 491 S.E.2d 712 of Virginia (Va. 1997), to suggest that judgment as a matter of law is inappropriate in this case because "there are conflicts in the evidence." Opp'n 4, ECF No. 43. But O'Brien is inapposite. - 13 - PL's Br. in In O'Brien, a fabric store customer was injured when she was struck by one of three heavy bolts of fabric that had been stood on end and leaned against °'Brien' a cutting 491 table, s-E-2d at contrary 713, 714. to a store safety policy. Another customer, who had selected four bolts of fabric to be cut, affirmatively testified that a store employee, who was cutting one of the four bolts at the time of the accident, knew that the customer had selected more than one bolt of fabric to be cut, and that the remaining three bolts leaning against an adjoining cutting table were in plain view. Id. A store accident report further stated that the bolt of fabric that injured the plaintiff had been leaned against the cutting table either by w[t]he salesperson or customer." id. The Supreme Court of Virginia held that these facts were sufficient to permit a jury to reasonably find that the store employee had actual knowledge of the potential danger posed by the three bolts of fabric. 714. But unlike O'Brien, case. Indeed, Id. at there is no conflicting evidence in this there is no evidence whatsoever to suggest that the defendant in this case had actual or constructive knowledge that the fruit upon which the plaintiff slipped had fallen to the floor, making Colonial Stores and Winn-Dixie clearly more apposite. As noted above, it is the plaintiff who bears the burden of proving that the defendant had actual knowledge of the fruit on the floor, or that it had been there long enough that the defendant, in the exercise of ordinary care, - should have 14 - known about it and removed it. Based upon the testimony and exhibits admitted into evidence at trial, not have a the Court concludes that a reasonable jury would legally plaintiff under sufficient the standards Virginia in its Murphy, Accordingly, the basis set to will in favor of the forth by the Supreme Court Colonial Stores, Court find and Winn-Dixie decisions. grant the defendant's renewed motion for judgment as a matter of law pursuant to Rule 50(b) the Federal Rules of Civil Procedure be directed to enter judgment in of (ECF No. favor of 39). of The Clerk shall the defendant in this case. V. Rule 50(c)(l) RULE 59 MOTION FOR NEW TRIAL provides that: If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial. Fed. R. Civ. P. 50(c)(1). Accordingly, to Rule 59 will conditionally be of the the plaintiff's motion for a new trial pursuant Federal Rules granted. judgment as a matter of appellate Civil This Procedure Court has (ECF No. determined 35) that law is appropriate because no reasonable jury could return a verdict the record. of for the plaintiff on the evidence in If this judgment is vacated or reversed on appeal, court's disposition - must 15 - necessarily rely on the a determination that, to the contrary, a reasonable jury could return a verdict in favor of the plaintiff on the evidence in the record. VI. CONCLUSION For the foregoing reasons, the defendant's renewed motion for judgment as a matter of law pursuant to Rule 50(b) Rules of Civil Procedure (ECF No. 39) of the Federal is GRANTED and the Clerk is DIRECTED to enter judgment in favor of the defendant in this case. Pursuant to Rule 50(c)(l), the plaintiff's motion for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure (ECF No. IT 35) IS SO is CONDITIONALLY GRANTED for the reasons stated above. ORDERED. UNITED STAGES MAGISTRATE JUDGE Norfolk, Virginia July ~£Jo , 2011 - 16 -
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