‘Surmise, speculation and conjecture’: No proof store had notice of spilled dog food

A federal court in Virginia has dismissed the claims of a plaintiff who claimed he slipped and fell on dog food that had spilled in a retail store aisle.

Judge James P. Jones of the Western District of Virginia said a jury would need to speculate about how long the dog food had been spilled, and that a store cleaning policy only implied the general foreseeability of spills.

“Based on the undisputed facts, I find that the plaintiff has not shown that the store owner had constructive knowledge of the condition and thus will grant the defendant’s Motion for Summary Judgment,” Jones said.

The July 15 opinion is John Rife v. Tractor Supply Company (VLW 022-3-297).

The fall

In April 2019, John Rife and his son visited Tractor Supply Company to buy a dog leash. With his son walking ahead, Rife entered an aisle where bags of dog food were stacked on low shelves.

Neither of them noticed anything on the floor.

After four or five steps, Rife fell after slipping on what he said felt like marbles under his feet. Immediately after falling, Rife claimed he found dog food scattered and crushed in the aisle.

They took a picture showing dog food on the aisle floor and what appeared to be an opened bag on the lowest shelf.

After Rife sued Tractor Supply, the store manager said in a deposition that employees were to look for hazards every hour to hour and a half, and that a store policy required further monitoring and cleanup in pet supply sections.

Tractor Supply couldn’t identify the last time the aisle in question was checked.

Following discovery, Tractor Supply moved for summary judgment on the grounds that no reasonable jury could conclude from the evidence that it knew of the spill.

Constructive knowledge

Jones noted that well-settled law in Virginia says a property owner “must use ordinary care to keep his premises reasonably safe for an invitee, although he is not an insurer of the invitee’s safety.”

Pursuant to that duty, the judge said a store is required “to remove, within a reasonable time, foreign objects from its floors which it may have placed there or which it knew, or should have known, that other persons had placed there.”

Here, Rife offered no evidence that any Tractor Supply employee had actual knowledge of the spill before his fall.

The judge then examined whether Tractor Supply had constructive knowledge of the spill, which “may be established by evidence that the condition ‘was noticeable and had existed for a sufficient length of time to charge its possessor with notice of its defective condition.’”

In this case, “[n]either the plaintiff, nor his son, saw the dog food prior to the fall and therefore, do not know whether the dog food was there at the time of their arrival,” Jones wrote. “Therefore, it is impossible to draw any inferences about when the dog food first appeared on the floor.”

Rife claimed the scattered and crushed nature of the dog food suggested it could have been there long enough to establish constructive knowledge.

Jones disagreed.

“It is just as logical to assume that (1) the dog food spilled shortly before the plaintiff fell and (2) the plaintiff’s fall caused the dog food to scatter and crush as it [would be] to infer that Tractor Supply employees should have known about the dog food in the exercise of reasonable care. Without more evidence on the record, a jury could only reach such a conclusion ‘as the result of surmise, speculation and conjecture.’”

– Judge James P. Jones

“The condition of a foreign object or substance is inadequate to establish that it had been there a sufficient length of time to create constructive notice,” he explained.

The judge pointed to a 2007 decision from the Western District that didn’t impute constructive notice to a store based on the condition of spilled cherries because “the jury would be asked to speculate or guess as to how long the cherries were on the floor.”

Jones found the same is true here.

“It is just as logical to assume that (1) the dog food spilled shortly before the plaintiff fell and (2) the plaintiff’s fall caused the dog food to scatter and crush as it [would be] to infer that Tractor Supply employees should have known about the dog food in the exercise of reasonable care” he said. “Without more evidence on the record, a jury could only reach such a conclusion ‘as the result of surmise, speculation and conjecture.’”

Store policy

Rife also argued that Tractor Supply violated its own store policy to specifically monitor the dog food aisle. He relied on Tractor Supply’s deposition testimony that dog food spills regularly and that store policy is to clean it up immediately.

Because the store couldn’t provide evidence they complied with the policy, Rife said that summary judgment must be denied.

But Jones said this assertion is “misplaced.”

“The evidence regarding the frequency of dog food spills and the policies in place regarding monitoring and cleanup times go to whether dog food spills were foreseeable in general, and not whether Tractor Supply had actual or constructive notice of the dog food spill that allegedly injured the plaintiff,” he said.

Although the Supreme Court of Virginia has held that failure to comply with store policy may establish the foreseeability of a dangerous condition, Jones said that applied only in cases involving an employee’s affirmative conduct.

Here, Tractor Supply’s “conduct, or lack thereof, amounts to passive conduct, not affirmative conduct,” the judge wrote. “In the absence of affirmative conduct, more specific proof of notice is required than general notice of a reoccurring dangerous condition.”

Finding that the evidence failed to establish a prima facie case, the judge granted summary judgment and dismissed the case.

‘Very close call’

Nicholas Simopoulos of Simopoulos Law in Richmond, whose practice includes plaintiffs’ personal injury work, said that in his view, the case was a “very close call” because the evidence could allow a jury to infer that the store had not cleaned up the spill for at least a half hour, “which is an unreasonable length of time in store foot traffic.”

But he noted Virginia’s “longstanding principle” that failure to follow a company policy does not automatically impute liability.

“The rationale for this principle is that, oftentimes, companies create policies that require its employees to exercise a level of care above what common law requires,” he said. “To hold a company liable for violating its own more stringent policy would be contrary to public policy and disincentivize efforts to exercise more care than the law necessitates.”