Negligence – Jury to decide if business had notice of spill

Where there were disputed material facts over whether a business had actual or constructive knowledge of a spill, its motion for summary judgment was denied.

Background

Caitlin O’Brien sued Wal-Mart Stores East, LP, asserting one claim for premises liability, after she slipped and fell at a store. Under Virginia law, to prevail on a slip-and-fall premises liability claim, plaintiff must demonstrate that: (1) Wal-Mart owed plaintiff an ordinary duty of care that (2) Wal-Mart breached, and the breach (3) proximately caused an (4) injury to plaintiff. Wal-Mart has filed a motion for summary judgment.

Imputed notice

Plaintiff argues that the court should impute notice on defendant because “Defendant created the hazardous conditions by affirmatively placing the pallet and bin of spoilable produce [i.e., watermelons] in the middle of a central aisle of the store, and because Defendant does not appear to have regularly monitored the produce after placing it in the middle of the central aisle.”

However, this court and the Supreme Court of Virginia have consistently and “squarely rejected the so-called ‘method theory,’ under which proof of actual or constructive notice of a specific dangerous condition can be omitted ‘if it is reasonably foreseeable that a dangerous condition is created by, or may arise from, the means used to exhibit commodities for sale.’”

Accordingly, Wal-Mart’s choice to place the watermelon bin in a “high traffic area” is insufficient to impute notice of the hazard on Wal-Mart. Instead, plaintiff must demonstrate that defendant had actual or constructive notice of the liquid leaking from the bin and pooling on the ground.

Actual notice

Plaintiff alternatively contends that Wal-Mart had actual notice of the liquid pooling on the ground because one of defendant’s employees stood near the watermelon bin for several seconds after the liquid was allegedly visible. “Whether a business actually knew-had actual notice-of a hazard is a straightforward question to ask.” However, on this record, this is no straightforward answer.

Although plaintiff argues that Wal-Mart had actual notice of the hazardous condition, there is no testimony or sworn declaration wherein an employee concedes that they knew about the liquid pooling on the ground or other evidence to that effect. During the April 24, 2026, hearing, when the court asked what evidence supported the theory that Wal-Mart had actual notice of the liquid on the floor, plaintiff’s counsel conceded that there is no direct evidence of actual notice.

Constructive notice

There is no dispute that plaintiff fell at approximately 7:49:20 a.m. There is, however, a genuine dispute of fact regarding how long the liquid was on the floor before plaintiff’s fall, with plaintiff arguing it began pooling at 7:41:00 a.m. and Wal-Mart arguing it was 7:42:00 a.m.

Defendant argues that these facts are not truly in dispute because there is objective video evidence that “plainly depicts the events at issue.” Upon the court’s review of the footage, the factual disputes are not plainly resolved because the video is “difficult to interpret” because the location of the surveillance camera does not give a detailed view of the clear liquid at issue on the floor, making it challenging to discern when the substance began pooling or became noticeable.

Accordingly, a reasonable fact finder could review the evidence in the record and conclude that Wal-Mart’s employee who was near the watermelon bin at approximately 7:41:25 a.m. should have seen the liquid on the floor. That factfinder may also determine that the liquid was present for an unreasonable amount of time before plaintiff’s fall and that a business exercising reasonable care would have discovered the liquid more quickly.

Additionally, as a second avenue to establish constructive notice, plaintiff may seek to proffer evidence that irrespective of how long the hazard existed, an employee was near the hazard, “working at the site of the hazard,” “directly over the condition” or otherwise uniquely situated to detect the specific hazard. Once more, the video evidence does not resolve the genuine dispute between the parties regarding how close the employees were to the liquid, and whether the pooling liquid was sufficiently noticeable that those employees should have seen it. A reasonable factfinder may conclude that one or more of those three employees was in sufficient proximity to the location of the liquid on the floor to establish constructive notice.

Defendant’s motion for summary judgment denied.

O’Brien v. Wal-Mart Stores East, LP, Case No. 1:25-cv-1345, May 27, 2026. EDVA at Alexandria (Vaala). VLW 026-3-237. 13 pp.

Full-Text Opinion
VLW 026-3-237