A woman who alleges injury from slipping in water near a dairy freezer while she shopped for frozen pizza at a Virginia Beach Kroger store cannot show the store was negligent; plaintiff testified she saw the yellow warning cone near the allegedly dripping freezers and proceeded with caution before falling within two feet of the warning cone, and the Norfolk U.S. District Court Magistrate Judge says no reasonable juror could conclude Kroger failed to warn of the defect.
Plaintiff alleges she noticed a yellow wet floor cone between the pizza freezer and an adjacent ice cream freezer when she slipped while passing about one and one-half feet from the cone. She reported her fall to a store manager who took photos and prepared an incident report. According to plaintiff, the manager then stated “they knew they had been having issues with these coolers because they were getting ready to go through a whole store reset because of them.” Other than this comment regarding “issues” with the coolers plaintiff was unable to testify about who placed the cone, when it had been placed or whether it had been moved by any person prior to her fall. She did state the Kroger manager who completed the report told her the cone had previously been placed closer to the dairy freezer. But neither she nor the manager had any information regarding who moved the cone, when it had been moved or how long prior to plaintiff’s fall it had been moved.
According to her testimony, plaintiff was no more than two feet from the cone when she fell. No other witness testified that the cone was nearer or farther from her fall. A party against whom summary judgment is sought cannot create a jury issue by identifying discrepancies in his own account of the facts. The undisputed facts establish that plaintiff fell immediately adjacent to the warning cone deployed by Kroger to warn customers of the precise defect which she claims caused her fall. Plaintiff acknowledged seeing the warning, and understanding its purpose was to warn customers the nearby floor could be wet.
Plaintiff testified she saw the warning, understood its purpose and proceeded cautiously as a result. Despite her caution she fell. But the happening of an accident does not establish negligence.
Plaintiff’s fall is not compensable under Virginia law.
Loomis v. Kroger LP I (Miller) No. 2:14cv536, June 17, 2015; USDC at Norfolk, Va. VLW 015-3-326, 10 pp.