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Store had no notice of defective bench

Virginia Lawyers Weekly//December 18, 2020

Store had no notice of defective bench

Virginia Lawyers Weekly//December 18, 2020

A Walmart customer who was injured when a bench broke while he was trying on shoes failed to show the store had notice about the bench’s dangerous condition. Although a store employee noticed that something “didn’t look exactly right,” as the bench appeared to have a “shadow,” a shadow or discoloration does not, without more, indicate a structural deficiency.


Mark Tyree was injured while trying on shoes in a Walmart in Lynchburg. He was sitting on a bench in the shoe department trying on shoes when the bench collapsed. Pending before the court is defendant’s motion for summary judgment.


Walmart argues that Tyree has not adduced evidence to establish three elements of a prima facie case of negligence: (1) the bench at issue constituted a dangerous condition; (2) the dangerous condition proximately caused the accident to happen or (3) Walmart had actual or constructive notice of the dangerous condition and failed to correct the problem within a reasonable period of time or to notify the plaintiff.

Tyree argues that “a reasonable jury could conclude, based on reasonable inferences, that the collapse or failure of the bench was foreseeable.” Tyree asserts that the morning of the day the bench collapsed, a Walmart employee, Ms. Leffler, “made specific note of the bench’s odd physical appearance. She felt the need to test the bench’s integrity by pressing on it but did not bother to determine what was actually wrong with the bench.”

The evidence on this issue taken in the light most favorable to Tyree as the nonmoving party, on the issue of prior actual or constructive notice is as follows. Leffler did notice earlier that day that something about the bench “didn’t look exactly right,” as it looked like there was a “shadow” across the bench. She testified she thought it was a shadow or “wanted to make sure it was a shadow.” Or she thought the bench could have had “dirt or something on it.” She “rubbed [her] hand across it,” and “put some pressure on it,” pressing “a little hard.” It “didn’t even cross [her] mind” whether the bench was sound, and she was satisfied that she “didn’t think it looked strange enough to do anything about” further.

Tyree has not raised a genuine issue of material fact based upon this evidence that Walmart “had actual or constructive notice, that is, whether they knew or should have known about the presence of the hazardous condition that caused the plaintiff’s fall and failed to remove it within a reasonable amount of time or warn of its presence.” Indeed, there is no evidence in the record that Leffler knew or had reason to believe there was anything dangerous or hazardous at all about the bench. A shadow or discoloration does not, without more, indicate a structural deficiency.

No reasonable inference can be drawn from such evidence that seeing what appeared to be a shadow or dirt or a bench put Walmart or any of its employees on constructive notice of a structural deficiency, or a hazard in the bench. Nor is there any testimony or evidence in the record about any prior incidents where this type of bench or others collapsed or needed repair. Further still, Tyree and his wife both testified that they did not see anything unusual about the bench, and that it did not appear to be sagging. This lack of evidence concerning knowledge of a dangerous condition contrasts this case with several identified by Tyree.

Tyree also argues that Leffler’s “actions stand out because Walmart has no policy of regularly monitoring or inspecting the furniture and fixtures offered to the public in any formal way, but instead relies on its employees to note, and report or remove any furniture or other fixtures in need of repair.” But this argument does not help Tyree in establishing that Walmart was on notice of a dangerous condition and failed to correct it.

As a general matter, “private rules” like those Walmart created addressing safety issues, “are inadmissible in evidence either for or against a litigant who is not a party to such rules.” In any event, nothing in this argument or Walmart’s policy as described by Tyree provides any factual support to show that Leffler or any other Walmart employee was on notice of a dangerous condition concerning the bench.

Defendants’ motion for summary judgment granted.

Tyree v. Wal-Mart Stores East Inc., Case No. 6:19-cv-00009, Nov. 30, 2020. WDVA at Lynchburg (Moon). VLW 020-3-592. 12 pp.

VLW 020-3-592

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