A guest at the Omni Homestead did not demonstrate that the hotel had either actual notice of ice she slipped on or constructive notice, based on the hazardous condition allegedly caused by operating the outdoor fountain in sub-freezing conditions.
In November 2013, Plaintiff Ellen Thomas arrived as a guest at the Omni Homestead Resort in Hot Springs. The hotel featured a decorative water fountain in the center of a partially enclosed outdoor walkway, connecting the hotel to its spa building.
As Thomas walked past the fountain around 9:30 a.m., she slipped and fell. An Omni employee arranged to transport her to the hospital. She injured her right hand and wrist and fractured a rib. Another employee later observed ice on the walkway where Thomas had fallen.
Thomas sued Omni in state court for negligent inspection and maintenance of the walkway around the fountain. After removal, the district court granted summary judgment to Omni, finding no genuine dispute of material fact regarding whether Omni had notice of icy conditions or water escaping the fountain at any time prior to Thomas’s fall.
The record does not demonstrate Omni’s prior actual knowledge either that icy conditions had formed or that escaping water was accumulating on the walkway near the fountain. To the contrary, Omni had not previously received any such reports.
Without evidence of prior knowledge, Thomas seeks to infer notice of dangerousness from certain climate conditions on the day of the fall. The temperature that morning was 22 degrees, and icicles had formed on the fountain itself. While these facts demonstrate the general condition upon which ice could form, they are not sufficient for actual or constructive notice to Omni that ice would form on the walkway beside the fountain that morning, when neither ice nor standing or escaping water had previously been observed there.
Thomas next contends that because ice takes time to form, a reasonable jury could conclude that the ice existed for a sufficient period to have been discovered by Omni upon reasonable investigation. But Virginia courts apply ordinary constructive notice principles to the presence of a dangerous condition, such as ice, to require evidence of how long that specific hazard was present. The record here contains no evidence indicating when ice may have formed.
Without prior notice or evidence of when the icy condition arose, the presence of ice at the time of the fall is not sufficient to demonstrate that, with reasonable diligence, Omni staff should have discovered it before the fall. Similarly, Thomas’s argument that Omni failed to inspect the walkway is unavailing without evidence that the ice existed long enough that Omni would or should have discovered it.
Thomas argues that Omni created the dangerous condition by positioning the fountain on the white cement-like walkway and running the water in sub-freezing temperatures. But as the district court found, there is no reliable evidence to show what caused the icy conditions near the fountain walkway on the morning Thomas fell.
It is similarly unclear how the ice was foreseeable to Omni. Its employees testified that they had never observed the fountain causing splashes, condensation, or moisture on the surrounding walkway, nor received complaints of water or ice there. In contrast to the Supreme Court of Virginia’s holding in Memco Stores Inc. v. Yeatman, 232 Va. 50 (1986), the record contains no evidence that Omni actively caused the formation of icy conditions on the walking surface or that this slipping hazard was foreseeable.
Thomas v. Omni Hotels Mgm’t Corp., Case No. 17-1424, Aug. 2, 2018. 4th Cir. (Gergel), from WDVA at Harrisonburg (Dillon). Gregory Lee Lyons for Appellant; Gregory Franklin Holland for Appellee. VLW No. 018-2-163, 11 pp.