Abbott v. Kroger Company

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSEPH C. ABBOTT, 
Plaintiff-Appellant,
v.  No. 01-1485
THE KROGER COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CA-00-783-7)
Submitted: August 14, 2001
Decided: October 12, 2001
Before NIEMEYER and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
G. David Nixon, Stephen W. Athanson, HUFFMAN & NIXON, P.C.,
Roanoke, Virginia, for Appellant. C. Kailani Memmer, GENTRY,
LOCKE, RAKES & MOORE, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 ABBOTT v. THE KROGER COMPANY
OPINION
PER CURIAM:
Joseph Abbott was injured when he slipped and fell in a puddle of
liquid at a Kroger store. He filed this action alleging that his injuries
were caused by Kroger’s negligence. The district court granted
Kroger’s motion for summary judgment, and Abbott appeals.
Abbott contends on appeal that the district court erred in granting
summary judgment. He argues that the issue of whether the spill was
on the floor long enough for Kroger to have constructive knowledge
of its existence is an issue of fact for the jury. However, we agree
with the district court that evidence regarding when a defect such as
a spill occurred is part of the prima facie case for negligence. Winn-
Dixie Stores, Inc. v. Parker, 396 S.E.2d 649, 651 (Va. 1990). Virginia
law does not allow speculation on the issue. Great Atl. & Pac. Tea
Co. v. Berry, 128 S.E.2d 311, 313-14 (Va. 1962). See also Colonial
Stores Inc. v. Pulley, 125 S.E.2d 188, 190 (Va. 1962) (holding verdict
requiring "surmise, speculation and conjecture" about foreign object
that caused fall could not stand).
Abbott also asserts that Kroger had a duty to warn customers about
possible spills because another, much smaller spill had been cleaned
up within five minutes of Abbott’s fall at another part of the store.
Again, however, Abbott’s theory requires pure speculation to formu-
late a set of possible facts that might constitute negligent failure to
warn. Here, as in a similar case decided by the Supreme Court of Vir-
ginia, "there was no showing that the defendant[ ] actually knew of
the existence of a hazardous condition before [the plaintiff] fell or that
the condition had existed long enough that the defendant[ ] should
have known of its existence in time to remove it or warn [the plain-
tiff] of the danger." Ashby v. Faison & Assoc., Inc., 440 S.E.2d 603,
605 (Va. 1994). Therefore, we reject this argument as well.
We affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED