Bishop v. Lowe's Home Centers, Inc. ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MELENA BISHOP, 
Plaintiff-Appellant,
v.
 No. 01-2324
LOWE’S HOME CENTERS,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
Glen M. Williams, Senior District Judge.
(CA-00-29-2)
Submitted: March 21, 2002
Decided: April 8, 2002
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
H. Patrick Cline, CLINE, ADKINS & CLINE, Norton, Virginia, for
Appellant. Charles H. Smith, III, Monica L. Taylor, GENTRY,
LOCKE, RAKES & MOORE, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 BISHOP v. LOWE’S HOME CENTERS
OPINION
PER CURIAM:
Melena Bishop appeals the district court’s grant of summary judg-
ment to Appellee Lowe’s Home Centers, Inc. ("Lowe’s"). Bishop
sued Lowe’s for negligence in a Virginia circuit court. Lowe’s
removed the action to federal court, based on diversity of citizenship.
The court ruled that Bishop was contributorily negligent for failing to
avoid an open and obvious danger when she tripped over a cart placed
between two riding mowers in a Lowe’s store.
Summary judgment is only appropriate when there is no genuine
issue of material fact, given the parties’ burden of proof at trial. Fed.
R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
49 (1986). In determining whether the moving party has shown that
there is no genuine issue of material fact, a court must assess the fac-
tual evidence and all inferences to be drawn therefrom in the light
most favorable to the non-moving party. Id. at 255; Smith v. Virginia
Commonwealth Univ., 84 F.3d 672, 675 (4th Cir. 1996). Moreover,
this Court reviews a grant of summary judgment de novo. Myers v.
Finkle, 950 F.2d 165, 167 (4th Cir. 1991).
Under Virginia law, a store owner has the duty to exercise ordinary
care in providing a reasonably safe premises for its invitees. See
Winn-Dixie Stores, Inc. v. Parker, 240 Va. 180, 182, 396 S.E.2d 649,
651 (1990). However, a store owner has no duty to warn its invitees
of an unsafe condition that is open and obvious to a person exercising
ordinary care. Fobbs v. Webb Building, Inc., 232 Va. 227, 229, 349
S.E.2d 355, 357 (1986). Moreover, a person "who trips and falls over
an open and obvious condition or defect is guilty of contributory neg-
ligence as a matter of law." Scott v. Lynchburg, 241 Va. 64, 66, 399
S.E.2d 809, 810 (1991).
We have carefully reviewed the district court’s opinion and the
materials submitted by the parties. We conclude that the district
court’s grant of summary judgment was proper. The evidence estab-
lishes that the cart was clearly visible to an attentive customer and
that Bishop failed to adequately examine the floor area where the cart
was located prior to tripping over the cart. Moreover, there is insuffi-
BISHOP v. LOWE’S HOME CENTERS 3
cient evidence in this case for a jury to conclude that distractions or
other environmental factors would have prevented a reasonable per-
son from surveying the floor area and spotting the cart. Thus, we find
that the cart was an open and obvious obstacle that a customer exer-
cising ordinary care would have avoided.
Accordingly, we affirm the judgment of the district court. We dis-
pense with oral argument, because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED