Virginia Lawyers Weekly//August 9, 2022
Virginia Lawyers Weekly//August 9, 2022//
Where a shopper sued for injuries allegedly suffered when he slipped on dog food while shopping at a retail store, but there was no evidence the store was actually or constructively aware of the dog food prior to the accident, it was granted summary judgment.
On April 13, 2019, John Rife visited a Tractor Supply, intending to buy a dog leash. The plaintiff was accompanied by his son, who walked ahead of him toward the relevant section of the store. The aisle leading to that section contained bags of dog food, some of which were stacked on shelves low to the ground.
After taking four or five steps into the aisle, the plaintiff fell after stepping on something he described as feeling like marbles under his feet. Neither the plaintiff nor his son noticed anything on the ground prior to the fall. Immediately after the fall, however, the plaintiff and his son saw that dog food bits were scattered across the aisle, with several pieces being crushed.
A photograph taken by the plaintiff’s son after the plaintiff’s fall shows the dog food and what appears to be an opening in one of the dog food bags located on the lowest shelf. There is no evidence in the record indicating when the dog food spilled onto the floor. Rife filed this action against Tractor Supply, seeking damages for his injuries suffered in the fall. Following discovery, the defendant filed the present motion for summary judgment.
A plaintiff’s claim involving a slip and fall may “survive summary judgment if the evidence would allow a reasonable jury to conclude that the premises’ owner had actual or constructive notice of the unsafe condition that caused her injury.” The plaintiff has produced no evidence that any Tractor Supply employee had actual knowledge of the spilled dog food prior to the plaintiff’s fall. Thus, the crucial issue is whether the defendant had constructive knowledge of the spilled dog food.
Constructive knowledge of a defect or dangerous condition on the premises 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.” Here, the plaintiff has produced no evidence as to how long the dog food had been on the floor. Neither 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. Therefore, it is impossible to draw any inferences about when the dog food first appeared on the floor.
The plaintiff argues that the fact that the dog food bits were scattered across the aisle and some pieces were crushed suggests it could have been there long enough that a Tractor Supply employee should have noticed it. However, 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. 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 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.”
The plaintiff also contends that Tractor Supply failed to follow its policy and properly monitor for spills and that in essence, it negligently failed to maintain the premises. This conduct, or lack thereof, amounts to passive conduct, not affirmative conduct. In the absence of any affirmative conduct, more specific proof of notice is required than general notice of a reoccurring dangerous condition.
Defendant’s motion for summary judgment granted.
Rife v. Tractor Supply Company, Case No. 1:21-cv-00016, July 15, 2022. WDVA at Abingdon (Jones). VLW 022-3-297. 10 pp.