Although a wine distributor’s employee who was restocking merchandise at a Kroger store moved to mop up a spill from a broken wine bottle and place a yellow cone near the spill, the Richmond U.S. District Court denies summary judgment to defendant Kroger in this negligence action by a woman who slipped and fell, injuring her head, eye and leg.
The court finds plaintiff’s theory amounts to more than mere speculation and is well supported by the record. It is undisputed that the Republic employee broke a bottle in the wine area, attempted to clean it with a mop and remained in the area to warn individuals of the condition. The record also supports the fact that plaintiff fell in the same vicinity where the spill occurred. Based on the facts as presented, and viewing in the light most favorable to plaintiff, the court finds plaintiff has marshaled sufficient evidence for a reasonable jury to conclude that the spill at the Kroger store was an unsafe condition which proximately caused plaintiff’s injury.
Kroger argues that the Republic employee – who was at most an independent contractor involved in the sale and merchandising of wine, and not floor care – created the dangerous condition, and Kroger is not responsible for his negligent acts.
As an initial matter, it appears Kroger may be either held independently liable for its own negligence or vicariously liable for the acts of the Republic employee. For the purposes of this analysis, the court assumes, as Kroger argues, that the relationship is at most that of owner and independent contractor.
There is enough record evidence for a jury to conclude that cleaning spills at the Kroger store is part of Kroger’s nondelegable duty to maintain its property in a reasonably safe condition. Kroger contracted with Republic to restock wine merchandise at the Kroger store. Yet, Kroger still had the legal duty to ensure the safety of its premises. Hence, a jury may reasonably conclude that Kroger is liable to plaintiff for failing to maintain its premises in a reasonably safe condition. The court further finds plaintiff has provided sufficient evidence for a reasonable jury to find that Kroger failed to take the necessary precautions and is vicariously liable for plaintiff’s injury.
Because it appears there is sufficient evidence to support a jury finding of vicarious liability, the court denies Kroger’s motion and allows the case to proceed to trial. Although Kroger contends plaintiff was contributorily negligent, the evidence is that reasonable minds could differ on whether plaintiff was contributorily negligent. If plaintiff’s testimony is believed, a jury may find the condition was either not open or obvious, or alternatively, plaintiff was excused from observing it because she had just come around the aisle.
Adams v. Kroger LP I (Spencer) No. 3:11cv141, Feb. 27, 2012; USDC at Richmond, Va. VLW 012-3-106, 10 pp.