Estep v. Xanterra Kingsmill, LLC, No. 4:2016cv00089 - Document 27 (E.D. Va. 2017)
Court Description: OPINION AND ORDER entered and filed 3/3/17: This matter is before the Court on a motion for summary judgment filed by Xanterra Kingsmill, LLC ("Defendant" or"Kingsmill"). ECF No. 21 . After examination of the briefs and record, the Court finds that a hearing is unnecessary, as the facts and legal arguments are adequately presented, and the decisional process would not be aided significantly by oral argument. Fed. R. Civ. P. 78(b); E.D. Va. Loc. Civ. R. 7(J). As outlined in this Opinion and Order, Defendant's 21 Motion for Summary Judgment is DENIED. Counsel are INSTRUCTED to schedule with the Magistrate Judge the resumption of a settlement conference prior to the trial date. (See Order and Foot Notes for Specifics) (Signed by District Judge Mark S. Davis on 3/3/17). Copies provided as directed 3/3/17.(ecav, )
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Estep v. Xanterra Kingsmill, LLC Doc. 27 UNITED STATES DISTRICT COURT EASTERN DISTRICT OP VIRGINIA Newport News Division CHRISTINE VAUGHAN ESTEP, Plaintiff, V. Civil No. XANTERRA KINGSHILL, 4;16cv89 LLC, Defendant. OPINION AND ORDER This matter judgment filed "Kingsmill") . record, facts the and decisional argument. is before by Xanterra ECF No. Court legal Civ. P. on a Kingsmill, that would Court motion LLC for summary ("Defendant" or After examination of the briefs and arguments Fed. R. I. 21. finds process the a hearing are not is adequately be aided unnecessary, significantly 78(b); E.D. Va. Loc. Civ. R. the and presented, as the by oral 7(J). FACTUAL AND PROCEDURAL BACKGROUND The undisputed facts before the Court establish as follows:^ (1) that Kingsmill's hosts {"Plaintiff") 12-week resort long participated premises tennis in such include leagues. tennis a tennis Christine leagues center Estep during the spring, summer, and fall of 2013. ^ Such facts are assumed as true solely for the purposes of summary judgment. Dockets.Justia.com (2) A path made of asphalt, and edged with green grass, leads to the Kingsmill tennis courts. 9:45 the a.m.. the fell while walking along the path toward courts. (3) less Plaintiff On September 12, 2013, at The below photograph depicts than 30 minutes grassy patch the path, after Plaintiff's fall. located on the left side and was Plaintiff of the indicated by the blue arrow in the photograph below taken fell path on as (the blue arrow was added by the Court for illustration purposes only) . (4) The green grassy area depicted in the photographs is approximately 16 inches long and extends approximately 14 inches into the darker colored paved asphalt path. (5) While walking along the left side of the paved path. Plaintiff stepped into the grassy area, grassy area, causing her to fall or partially into the cuid sustain injuries to her foot and lower leg. (6) At the time of her fall. Plaintiff was alone on the paved path amd was not distracted by her phone or other sources. (7) paved Many people, path on prior including Plaintiff, occasions and have safely used the Defendant has not had any complaints about the grassy area extending into the paved path, nor is Defendant aware of anyone else being injured at this location. (8) It is undisputed that there was approximately five feet of open paved path to the right of was no opposing foot traffic or the grassy area, other reason that and there Plaintiff could not have moved to the right in order to stay on the paved surface. (9) do not While Plaintiff made statements in her deposition that appear to contest the fact that the grassy area was visible, she contends that it did not look like a trip hazard or anything obvious to avoid. Plaintiff asserts that she was paying attention while walking and that she would have avoided obvious hazards. (10) she that Plaintiff discovered a imprecise and there is testified that hole it was vinder disputed the only after her fall grassy evidence on area. such Although issue, the hole, purportedly hidden by long grass, was as deep as eighteen inches.^ Predicated on the above facts. Defendant filed the instant motion seeking summary judgment based only on the affirmative defense of contributory negligence. Plaintiff filed a brief in opposition, asserting that a jury must decide whether Plaintiff was negligent. is thus The question for the Court on summary judgment limited to determining whether, on these facts, Plaintiff was contributorily negligent as a matter of law.^ Based on the arguments presented by the parties, the resolution of such question turns primarily on whether the grassy patch, and/or the hole beneath the grassy patch, was an "open and obvious" defect/danger. ^ A witness for the defense testified that there was a "slight depression" under the grass, estimated to be "less than two or three inches" deep. ECF No. 24-4, at 21-22, 25. Accordingly, while the depth is disputed, the fact that that the ground covered by the grassy area was not at the same level as the paved path is not in dispute. ^ Defendant expressly states in its filings that its motion "does not address the vicibility of Plaintiff's claims of negligence and negligence per se," instead opting to rely, for purposes of summary judgment only, solely on the defense of contributory negligence. ECF No. 22, at 19. II. The Federal STANDARD OF REVIEW Rules of Civil Procedure provide that a district court "shall grant summary judgment if [a] movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Civ. Office of the Courts, P. 56(a); F.3d 562, N.C. {4th Cir. 568 Jacobs v. Admin. 2015). " [T]he mere Fed. existence of R. 780 some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is "material" if it "might affect the outcome of the suit," and a dispute is "genuine" if "the evidence is such that a reasoncible jury could return a verdict for the nonmoving party." Id. at 248; s ^ Jacobs, 780 F.3d at 568. When a affirmative essential moving party defense, it elements of "seeks must that Clear Chauinel Commc' ns, Inc., summary judgment conclusively defense." Ray 673 F.3d 294, establish Commc'ns, 299 (citing Celotex Corp. v. Catrett, 477 U.S. 317, on 331 all Inc. (4th Cir. an v. 2012) (1986)). If the moving party produces "sufficient evidence in support of its affirmative defense, the burden of production non-movant to identify facts demonstrating a trial. Id. If the moving party fails shifts" to the genuine issue for to produce sufficient evidence, "summary judgment must be denied . . . for the non- movant is not required to rebut an insufficient showing." Id. {citation omitted). At the summary judgment phase, a district court is not permitted "to weigh the evidence and determine the truth of the matter," but must instead "determine whether there is a genuine issue for trial." (quoting Tolan v. Anderson, relevant inquiry is 477 Cotton, U.S. at 134 S. Ct. 249). 1861, 1866 (2014) Accordingly, "[t]he 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must Stewart v. MTR Gaming Grp., Cir. (quoting Anderson, 2014) such determination, prevail Inc., 581 477 U.S. as F. a matter of App'x 245, at 251-52) . law.'" 247 (4th In making the Court must consider the record evidence "'in the light most favorable to the' nonmoving party." Jacobs, 780 F.3d at 568 (quoting Tolan, 134 S. Ct. at 1866). III. DISCUSSION Pursuant to Virginia substantive law governing the instant diversity action,'* "[a]n owner of premises owes a duty to its invitee (1) to use ordinary care to have the premises in a reasonably safe condition for the invitee's use consistent with the invitation, and (2) to use ordinary care to warn its invitee * It is undisputed that this Court must "apply Virginia substantive law consistent with Virginia's lex loci delicti, wrong." the law of the place of the Blair v. Def. Servs., Inc., 386 F.3d 623, 625 (4th Cir. 2004). of any unsafe condition that was known, ordinary care should have been known, or by the use of to the owner; except that the owner has no duty to warn its invitee of an unsafe condition which is open ordinary care P^ship, added) and obvious to reasonable for his own safety." 232 Va. 227, 229, condition or person Fobbs v. 349 S.E.2d 355, {citations omitted), obvious a exercising Webb Bldg. 357 (1986) Ltd. (emphasis If a person trips over an "open and defect" she is "guilty of contributory negligence as a matter of law," unless there is a legally valid justification for failing to observe the defect. of Lynchburq, Stated 241 Va. differently, persons using defect," and a 64, 66, "where sidewalk "[w]here a S.E.2d defect it there 399 is is 810 open and their duty to no excuse Town of Va. 34, 36, (1952) 240 809, is defect one cannot recover." 72 S.E.2d 239, Scott v. City for obvious the seeing the Starr, 194 Va. (citation omitted).® absence of an open and obvious defect/danger, to observe not Beach v. (1991). In the an invitee the right to assume that premises are reasonably safe." "has Volpe ® Whether a defect/danger is open and obvious and whether a plaintiff was contributorily negligent are "related" concepts, but they are ''not the same" because "[t]he open and obvious defense focuses on the hazard itself; by contrast, a contributory negligence analysis revolves around the conduct of the plaintiff." King v. Flinn & Dreffein Eng'g Co., No. 7:09cv410, 2012 WL 3133677, at *7 (W.D. Va. July 30, 2012). The difference in concepts is illustrated by the fact that a plaintiff who is injured by "an open and obvious dangerous condition" retains the ability to demonstrate that she was not contributorily negligent "conditions outside herself which prevented her seeing the or which Delhaize Am., condition Inc., added) would excuse 278 Va. (citation omitted). 84, her 90, failure to observe 677 S.E.2d 272, 275 it." (2009) based on dangerous Fultz v. (emphasis V. City of {2011); S,E.2d Lexington, Comess 125, v. 281 Va. Norfolk 128 (1949) 630, Gen. 637, Hosp., {indicating 708 189 that S.E.2d Va, an 824, 229, invitee 827 235, 52 "is not required to be on the lookout for dangers not open and obvious") {citations omitted). "Ordinarily, negligence is a whether a plaintiff is guilty of contributory jury issue," and such issue "becomes one of law for resolution by a differ 166, about 409 conclusion." S.E.2d 123, some evidence the the court only when reasonable minds could not grassy that patch 126 Medlar {1991). Here, arguably calls was to a v. Mohsm, while 242 162, Plaintiff offers into question how pedestrian Va. walking down "obvious" the paved path,® the primary dispute addressed by the parties' briefs is whether the grassy beneath the grass, patch, was care. distracted or grassy patch hole/depression duty to avoid i t Plaintiff otherwise itself; the an "open and obvious" such that Plaintiff had a reasonable and does prevented rather, she summary judgment on the fact that, grassy patch is deemed to be not from defect or danger in the exercise of assert that observing focuses obscured her she the was green opposition to even if the existence of the "open and obvious" as a matter of ® Plaintiff's brief cites to both her own deposition testimony and the testimony of Defendant's employees who indicated that they walked down the path countless times and never noticed the grassy patch itself, or "never noticed this irregular edge of the asphalt." ECF No. 24, at 7-8; ECF Nos. 24-2, 24-3. 8 law, a reasonable juror could conclude "open and obvious" hole or that there was not an danger because there was no indication of a depression under the grassy area or that such area otherwise constituted a trip hazard. Defendant that the "defect" Plaintiff failure responds in negligently to position. stay to Plaintiff's paved the argument was contributed on the paved Defendant argues that between an open and obvious obvious hazard/danger. before the positions: path, even Court, (1) path the to her there obvious, injury surface. by In contending and that based on her support of its is no legal distinction condition/defect and an open and To place a parties take finer point on the dispute the following conflicting Plaintiff asserts that she did not step "off" the but stepped on grass that encroached onto the path, if it was obvious that a portion of the path was and grass covered,' she was not negligent, because the grass did not appear to be a trip hazard; and (2) Defendant contends that Plaintiff, absent any reasonable justification, the path and onto the grass, voluntarily stepped off of and because the green grass was an open and obvious defect in the path, Plaintiff is contributorily ' Plaintiff made statements in her deposition, some of which are expressly reproduced in her brief, indicating that while the photographic evidence does show that there was "some kind of grass on the path," it does not reveal a hole or depression or even that there was missing asphalt under the grassy patch because grass/weeds could have been growing over the paved surface. ECF No. 24, at 12-14; EOF No. 24-1. negligent as a matter of law for not avoiding such obvious defect. After carefully drawing reasonable considering the record evidence, and inferences in Plaintiff's favor as required at the summary judgment stage, the Court finds that Defendant fails to demonstrate that Plaintiff was contributorily negligent as a matter of law. Although it is true that much of the record evidence before the Court is undisputed, characterization of factfinder because inferences to the be critical there drawn facts are the interpretation and must be conflicting, from such reserved for yet evidence, the reasonable, and reasonable persons may differ as to whether the grassy patch constituted an "open and obvious" danger/hazard. Corp., 194 (reversing va. the 572, lower 573-75, court's Compare Crocker v. WTAR Radio 74 S.E.2d finding that 51, the 52-53 {1953) plaintiff was "guilty of contributory negligence as a matter of law" when she fell off a four to six inch high split-level stage during a fashion show because the plaintiff presented evidence suggesting that the matched" height was and "highly polished" of one level Steaqall, difference floor); 235 Va. 636, obscured floors, by the rendering the appearance with Rocky Mount Shopping Ctr. 637, "perfectly 369 S.E.2d 193, 194 Assocs. {1988} that the plaintiff was contributorily negligent as a v. (finding matter of law because the evidence established that the plaintiff's fall 10 was caused by a two to three inch deep "obvious depression" in a parking lot and plaintiff record, had "to that looked). convert question of law." WL 1743865, Virginia 659 such defect at what is is therefore normally Hall v. DLC Mgmt. *5 Elec. It would have (W.D. Va. & Power Co., Apr. 204 a Va. improper, on jury Corp., 23, been seen if 7:llcv298, 2013) 128, this question No. (citing the to a 2013 Smith v. 132, 129 S.E.2d 655, conclusion because reasonable minds (1963)). The Court reaches this could differ as to whether the grassy area was: (1) condition its that, contrasting danger; or while color, (2) seemingly did not exercising identified as a danger/hazard. "off" that suggest a due trip to hazard visible size or and other an open and obvious "defect" in the path that a pedestrian/invitee conclude obvious a Plaintiff was reasonable care would have While one reasonable juror could careless for voluntarily stepping the paved path onto the grassy area when there was ample paved space to the right, another reasonable juror could conclude that the grassy encroachment was not outside the boiands of the provided pavement, walkway rendering the and hole appeared that to caused be "level" Plaintiff's hidden latent danger, not an open and obvious one. 194 Va. at situation was 575, 74 'open' S.E.2d at 53 to the plaintiff, 11 with (noting that fall the a See Crocker, "while the in the sense that there was no obstruction between her and the step was not down); necessarily volpe, 'obvious' 281 Va. at to her" [on the stage] , that 637-38, was S.E.2d 708 there a at it step 827-28 (concluding that "the circuit court erred in holding as a matter of law that [a] dam presented an open and obvious danger" because while the danger of drowning in a lake or other body of water is "open and obvious as a matter of law," conclusion cannot be reached when a body of water has a hidden hydraulic" to a the same "deadly, created by a dam that is "not always visible swimmer"). In reaching such conclusion, this Court rejects the Defendant's contention that Virginia law does not provide for a distinction, at least on some fact patterns, between an open and obvious "condition" Notably, both and an and federal state open and obvious courts "danger/hazard." applying Virginia law have recognized that "it is not enough that an object be plainly visible to constitute an open and obvious hazard, the plaintiff must also have reason to appreciate the nature of the harm posed by the object." 2012 WL Crocker, Inc. , 4503150, 194 Va. 254 example, Cunningham v. Va. at *4 at 575, 326, 331, in O'Brien v. Delhaize Am., {W.D. Va. Sept. 74 S.E.2d at 53); 491 S.E.2d Everfast, 712, Inc., 27, No. 3:12cv2, 2012) (citing O'Brien v. 714-15 Everfast, (1997)). For the Supreme Court of Virginia concluded that " [s]everal heavy bolts of fabric leaning against 12 a table [in a danger" it." fabric store] is not so remarkable or patent a that a reasonable person "would naturally seek to avoid O'Brien, 254 Va. at 331, 491 S.E.2d although the bolts of fabric were clearly a "the jury properly could have found that at 715. Rather, visible condition, [the plaintiff] was privileged to browse the display floor without guarding herself from being struck by a falling bolt of fabric." Similarly, another judge of this Id. Court recently denied summary judgment on the theory of contributory negligence in a case where the plaintiff was injured falling off of a ledge into a "wave Breeze (E.D. pool" Holdings, Va. Aug. establish that a the at a Virginia LLC, 28, No. amusement 2:14cv484, 2015) . park. 2015 In Long, the Long WL v. 12803773, defendant Ocean at *4 failed to three to four inch difference in height between "simulated beach area" on which the plaintiff was walking and the "wave pool" that she was stepping into was an "open and obvious" danger differential reasonable because between even the though beach area there and was the a pool see condition' 63 C.J.S. Negligence the a § 741 {"An Id. {emphasis 'open and obvious exists where the condition and risk are apparent to and would be recognized by a of itself," juror could conclude that the height difference was not visible as it was obscured by moving water. added); "clear color visitor . . . .") reasonable person in the position (emphasis 13 added); Freeman v. Case Corp., 118 F.3d 1011, 1014-15 {4th Cir. 1997) {indicating in a products liability case that "Virginia law looks not to whether the defect itself clearly apparent"); WL 5397227, was Kelly v. at *2 n.3 obvious.") Portsmouth, Va. whether Food Lion, 2, LLC, the No. hazard 3:llcv80, was 2012 2012) {"It is the hazard not the object itself, that must be open (citing 217 but (W.D. Va. Nov. created by an object, and obvious, Freeman) ; see also 738-39, 232 S.E.2d 734, (finding contributory negligence as a West v. 763, City 766 of {1977) matter of law in a case where not only was the "water meter and its cover installed in the sidewalk unevenness ... in clear or depression were view," but the "irregularity, open and obvious and could have been detected by anyone who was observant").® In sum, not simply this Court's role at the summary judgment stage is to "weigh" judgment based inquiry is upon the such 'whether evidence and weight. the grant Instead, evidence or deny "[t]he presents a summary relevant sufficient disagreement to require submission to a jury or whether it is so ® This Court acknowledges that, in many circumstances, the nature of the open and obvious condition or defect necessarily puts a reasonable person on notice of the attendant danger (a visible three-inch depression in a walkway and a visible four-inch curb are necessarily trip hazards). However, in other circumstances, such as those before this Court, and those in the cases cited above, a finding that a condition is open and obvious does not automatically dictate whether such condition constitutes an open and obvious danger. For example, a two foot-wide black manhole cover located in the middle of a light gray sidewalk and recessed M inch below the surface of the sidewalk is likely an "open and obvious" condition as a matter of law, but if a pedestrian steps onto the cover and one side of it drops three inches, causing injury, the hidden danger cannot be said to be open and obvious as a matter of law. 14 one-sided that one party must prevail as a matter of law.'" Stewart, 581 F. App'x at 247 {quoting Anderson, 477 U.S. at 251- 52) . as Virginia law provides that matters involving line-drawing to whether a condition/defect/hazard is should typically be left to the jury. demonstrate that the facts of this "open and obvious" Here, Defendant fails to case permit a matter of law similar to those cases where a curb, visible depression create an obvious ruling as a large box, or trip hazard such that a plaintiff can be said to be contributorily negligent as a matter of law for failing "condition/defect" to at avoid issue such in this hazard. case, as Rather, the portrayed by the evidence advanced by Plaintiff, was a relatively deep hole that encroached onto the edge of a paved path and was long grass that created a seemingly level surface. obscured by Whether the grassy area was an "open and obvious" danger that Plaintiff had a duty to avoid is a question properly reserved for the jury. IV. For the judgment schedule is foregoing DENIED. with the CONCLUSION reasons. ECF No. Defendant's motion for 21. Magistrate Counsel Judge the settlement conference prior to the trial date. 15 are summary INSTRUCTED resumption of to a The Clerk is DIRECTED to send a copy of this Opinion and Order to a l l counsel of record. IT IS SO ORDERED. Mark S. Davis United States District Judge March 3 , 2017 Norfolk, Virginia 16
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