Turley v. Costco Wholesale Corp.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1273
ROGER TURLEY,
Plaintiff - Appellant,
versus
COSTCO WHOLESALE CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:05-cv-00518-JCC)
Submitted: February 13, 2007 Decided: March 6, 2007
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gilbert K. Davis, DAVIS & ASSOCIATES, L.L.C., Fairfax, Virginia,
for Appellant. William B. Tiller, J. Matthew Haynes, Jr.,
BEATYTILLER, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roger Turley appeals an order granting summary judgment to
Costco Wholesale Corporation (“Costco”) on Turley’s slip-and-fall
negligence claim. Because there is no evidence that Costco knew or
should have known of the alleged dangerously wet condition in the
vestibule of its warehouse, we affirm.
I.
Costco operates a warehouse shopping facility in Manassas,
Virginia. The warehouse is a stand-alone facility with its own
parking lot. Members1 enter the warehouse via a covered vestibule,
at the sides of which are stored rows of nested shopping carts.
Past the vestibule, members enter the shopping area via a second
set of entrance doors. A sidewalk stretches across the front of
the warehouse, outside the vestibule.
On December 7, 2002, Turley’s wife drove him to the warehouse,
stopping in the fire lane parallel to the sidewalk, with the
driver’s side nearest the warehouse. Turley exited and walked
around the front of his truck, trudging through four to six inches
of snow that had accumulated during the course of the few days
1
Generally, access to the warehouse is restricted to members,
who pay an annual fee for shopping privileges.
2
prior.2 After entering the vestibule, Turley slipped and fell when
attempting to retrieve a shopping cart.
Turley later testified that he “d[id]n’t know what it was”
that caused his fall, J.A. 140, but “[i]t had to be show, ice or
water,” J.A. 141. Neither Turley’s wife nor Patricia Glenn, the
Costco manager who responded to the accident, was able to identify
the cause of the fall. Glenn had performed an inspection about
thirty minutes prior to the fall; she had found that though the
porous concrete floor in the vestibule was damp at the entrance,
the area near the carts was not damp, nor was there any standing
water in the vestibule. Later, upon responding to the fall, Glenn
touched the concrete with her bare hands, confirming that it was
“wet from wet carts,” J.A. 345, but noticing no visible puddles or
ice.
Costco moved for summary judgment, arguing that Turley could
not prove negligence because firstly, he “cannot prove why and how
he fell and secondly, [he] has no evidence that Costco knew or
should have known of the alleged defect.” Turley v. Costco
Wholesale Corp., No. 1:05CV518, 2006 WL 306646, at *2 (E.D. Va.
Feb. 6, 2006). The district court found that Turley presented
sufficient evidence that he slipped on some phase of water, even if
he was “[u]nab[le] to distinguish what form the water took at the
2
Turley passed, in his vehicle or on foot, at least three
signs warning Costco members of the possible presence of snow and
ice during the winter.
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point that [he] slipped.” Id. Nevertheless, the district court
granted the motion for summary judgment because there was neither
evidence that Costco knew of the dangerous condition in the
vestibule, nor evidence “that the wet conditions in the vestibule
existed long enough that [Costco] should have known of its
existence in time to remedy it.” Id. at *4.
Turley timely appealed.
II.
A.
“We review the district court’s grant of summary judgment de
novo, applying the same legal standards as the district court and
viewing the facts and inferences drawn from the facts in the light
most favorable to . . . the nonmoving party.” Evans v. Techs.
Applications & Svc. Co., 80 F.3d 954, 958 (4th Cir. 1996). Summary
judgment is appropriate only when “there is no genuine issue as to
any material fact and the moving party is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of
material fact exists “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party bears the initial burden of showing the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Once the motion is properly
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supported, however, the burden shifts to the non-moving party to
show that a genuine dispute exists. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The non-
moving party must present more than a “mere . . . scintilla of
evidence” to forestall summary judgment. Anderson, 477 U.S. at
252. Thus, “unsupported speculation . . . . is not sufficient to
defeat a summary judgment motion.” Ash v. United Parcel Svc.,
Inc., 800 F.2d 409, 411-12 (4th Cir. 1986).
B.
Because this federal action is based upon diversity of
citizenship, the forum state’s law controls. Limbach Co. LLC v.
Zurich Am. Ins. Co., 396 F.3d 358, 361 (4th Cir. 2005). The
parties agree that Virginia state law governs the underlying
negligence claim here.
In slip-and-fall negligence cases, Virginia law differentiates
between dangerous conditions caused by “affirmative conduct” of the
defendant, and those resulting from “passive conduct.” See Ashby
v. Faison & Assocs., Inc., 440 S.E.2d 603, 605 (Va. 1994)
(comparing the affirmative moving of a plant, which action jostled
loose a “slimy” leaf upon which the plaintiff slipped, with the
passive conduct of allowing water to accumulate in a lobby). When,
as here, the dangerous condition resulted from passive conduct, the
plaintiff may prevail only if he shows that “the defendants had
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actual or constructive notice” of the dangerous condition. Id.Therefore, as in Ashby, Turley must show that Costco “knew or
should have known[] of the presence of the water that caused [his]
fall and failed to remove it within a reasonable time or to warn of
its presence.”3 Id.Turley has pointed to no evidence that Costco actually knew
that water (in some phase) had accumulated near the carts.
Nevertheless, Turley insists that the accumulation of snow in the
parking lot during the several days prior to the accident put
Costco on notice that a dangerously wet condition might arise in
the vestibule. In particular, Turley argues that Costco should
have known that the cycle of shopping carts from store to parking
lot to vestibule would lead to an accumulation of water near the
rows of carts.
The Virginia Supreme Court case Cannon v. Clarke, 167 S.E.2d
352 (Va. 1969), is instructive here. In Cannon, a neighbor trudged
through the snow en route to the defendants’ front door. The
neighbor did not see any snow or ice on the front porch, but
slipped and fell on something slippery, causing injury. The
Virginia Supreme Court held “[i]t is just as probable that . . .
the snow or ice adhered to [the neighbor’s] shoe or shoes and was
3
Costco does not concede that accumulated water, ice or snow
was the cause of Turley’s fall. Because we find that Turley cannot
show that Costco had actual or constructive knowledge of such a
hazard, we need not decide whether such a hazard actually existed
and caused Turley’s fall.
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deposited therefrom on the surface of the porch as it is that it
was left there by the inattention of the defendants.” Id. at 355.
Here, Turley has offered no evidence that the water causing
his fall was present in the vestibule before he arrived. Instead,
he admitted walking through the snow several feet before arriving
in the vestibule.
Similarly, Turley argues that the hazard must have been
present in the vestibule “more than long enough for Costco to
appreciate the danger.” Appellant’s Br. at 20. Because wet
weather conditions had persisted for several days, he infers that
the hazard must likewise have existed for a sufficient time such
that Costco should have discovered it, and that Glenn’s inspection
of the vestibule just prior to the accident should have revealed
the hazard.
Turley’s argument fails under Virginia precedent. The Cannon
court found the plaintiff’s case doomed by the fact that “there is
an entire lack of evidence as to how long the snow or ice, if any,
had been there.” 167 S.E.2d at 355. Similarly, a plaintiff who
slipped and fell in an office building lobby could not prevail
without “showing that the . . . hazardous condition . . . had
existed long enough that the defendants should have known of its
existence in time to remove it or to warn [the plaintiff] of the
danger.” Ashby, 440 S.E.2d at 605.
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Turley has offered no evidence to suggest that the water had
been pooling in front of the carts so long that Costco should have
discovered it. Instead, he asks the court to speculate as to how
long the water hazard had existed prior to his fall. However, such
“unsupported speculation . . . . is not sufficient to defeat a
summary judgment motion.” Ash, 800 F.2d at 411-12. Furthermore,
it is “not ‘obvious’ from any evidence in the case that [Glenn]
missed the [water]” when she inspected the vestibule thirty minutes
prior to the accident. See Winn-Dixie Stores, Inc. v. Parker, 396
S.E.2d 649, 651 (Va. 1990) (noting that “such an inference would
ignore the likelihood” that the hazard arose after the defendant’s
employee inspected the area of the fall).
Because Turley has not met his evidentiary burden with respect
to an essential element of his claim, summary judgment was
appropriately awarded to Costco.
III.
We affirm the district court’s granting of Costco’s motion for
summary judgment. We dispense 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
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