Written By Chris Bergin, Esq.
Edited by Brian A. Cafritz, Esq.
Virginia business owners are not legally responsible for every single accident that occurs on their premises. Indeed, the Virginia Supreme Court has been clear: “A proprietor of a store is not an insurer of the safety of his customers.” Safeway Stores, Inc. v. Tolson, 203 Va. 13, 16 (1961). For a Plaintiff to establish a claim of premises liability against a business owner, he must prove two factual elements: that a hazardous condition existed on the premises, and that the defendant had notice of the hazardous condition.
The second issue—whether a business had notice of a dangerous condition—is more heavily litigated. There are three ways a Plaintiff can establish notice: (1) by proving that the defendant created the dangerous condition through its own affirmative conduct , (2) by proving that the defendant had actual notice of a dangerous condition and (3) by proving that the defendant should have known about the dangerous condition. Each method of establishing notice has its own specific legal standard that the Plaintiff must meet.
Most of the time, Plaintiffs are unable to prove that a storeowner either created a hazard or had actual knowledge of a hazard. Thus, the vast majority of litigation in Virginia focuses on whether a Plaintiff is able to prove constructive notice.
Fortunately for business owners, the constructive notice rule is straightforward, defense-friendly, and ironclad. To establish constructive notice, a Plaintiff must provide evidence showing how long the specific hazard in question existed prior to his accident. Other evidence is irrelevant. If the Plaintiff cannot show how long the hazard existed, his case fails as a matter of law.
On March 8, 2018 in the case of Diggs v. Wal-Mart Stores, Judge Moon from the District Court for the Western District of Virginia, made the unforgiving rigidity of this rule clear. In Diggs, a Plaintiff slipped and fell at a self-checkout scanner in a Wal-Mart Store. After falling, the Plaintiff noticed a greasy spot on her pants. A Wal-Mart employee rushed over and informed the Plaintiff that she had seen a previous customer eating chicken at the self-checkout scanner. The Wal-Mart employee then wiped up a five inch undisturbed puddle of chicken grease. The Plaintiff filed premises liability claim against Wal-Mart. Wal-Mart moved for summary judgement, arguing that the Plaintiff could not prove constructive notice.
The Plaintiff argued that Wal-Mart should have known about the chicken grease on the floor. Indeed, the Plaintiff noted that a Wal-Mart employee had seen a customer eating chicken at the self-checkout scanner before the Plaintiff had fallen. As Wal-Mart employees knew that a customer was eating chicken in the middle of the store, Plaintiff argued that Wal-Mart employees should have known that this customer was likely to leave behind puddles of chicken grease.
The District Court quickly dismissed the Plaintiff’s argument as irrelevant. It did not matter whether another customer had been eating chicken before the accident. It did not matter whether Wal-Mart employees knew that one of its customers was eating chicken in the middle of the store. The only evidence that mattered was evidence showing that the employee knew that the chicken grease had been on the floor prior to the sued-upon accident. Indeed, the mere fact that a customer was eating chicken in a certain spot does not logically mean that the customer spilled grease on the floor. Another unknown customer eating chicken could have spilled the grease, while the known customer did not. Allowing a jury to conclude that the known customer created the condition requires the jury to rely on speculation and conjecture. Since there was no evidence as to who spilled the grease, the Plaintiff was unable to show how long the chicken grease had been on to the floor. As such, his case failed as a matter of law.
Judge Moon’s opinion in Diggs is short, only three paragraphs. Yet, in this brief space, Judge Moon reinforces the stunning rigidity of the constructive notice rule: if a Plaintiff does not know how long a hazard existed, he cannot recover. All other evidence is irrelevant.