UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JONATHAN RAY TAYLOR, an infant
who sues by his mother and next
friend, Karen Taylor; KAREN DENISE
TAYLOR; JOHN RICHARD TAYLOR,
Plaintiffs-Appellants,
v.
WAL-MART STORES, INCORPORATED; No. 01-1508
CR/PL, L.L.C.; RICK VOGEL; VOGEL
PLUMBING AND HEATING,
Defendants-Appellees,
and
J. P. MILLER,
Defendant.
Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
James P. Jones, District Judge.
(CA-99-68-2)
Submitted: December 18, 2001
Decided: January 14, 2002
Before LUTTIG and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
2 TAYLOR v. WAL-MART STORES
COUNSEL
Timothy W. McAfee, MCAFEE LAW FIRM, P.C., Norton, Virginia,
for Appellant. Paul C. Kuhnel, WOOTEN & HART, Roanoke, Vir-
ginia; Brian R. Jones, JONES & GLENN, P.L.C., Roanoke, Virginia,
for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jonathan Ray Taylor and his parents, Karen Denise Taylor and
John Richard Taylor, appeal the district court’s orders granting sum-
mary judgment in favor of Rick Vogel d/b/a Vogel Plumbing & Heat-
ing (Vogel), CR/PL, L.L.C. (Crane), and Wal-Mart Stores, Inc. (Wal-
Mart). Jonathan Taylor, a six-year old, sustained injuries when a lava-
tory in the men’s restroom at the Wal-Mart store in Big Stone Gap,
Virginia, dislocated from the wall.
The district court granted summary judgment in favor of Vogel, the
plumbing contractor, and Crane, the manufacturer of the lavatory,
finding the lawsuit was untimely under Virginia’s five-year statute of
repose for improvements to real property, Va. Code Ann. § 8.01-250
(Michie Supp. 2001), and denied Taylor’s cross-motion for partial
summary judgment against Crane. The district court further granted
summary judgment in favor of Wal-Mart, finding Plaintiffs failed to
show Wal-Mart had actual or constructive knowledge of a defect in
the lavatory or its installation.
We affirm the orders granting summary judgment in favor of Vogel
and Crane. We vacate the order granting summary judgment in favor
of Wal-Mart and remand for further proceedings.
TAYLOR v. WAL-MART STORES 3
We review de novo the district court’s order granting summary
judgment and view the facts in the light most favorable to the non-
moving party. Kubicko v. Ogden Logistics Servs., 181 F.3d 544, 551
(4th Cir. 1999). Summary judgment is appropriate when no genuine
issue of material fact exists and the moving party is entitled to judg-
ment as a matter of law. Fed. R. Civ. P. 56(c). Once the moving party
discharges its burden by showing the absence of evidence to support
the nonmoving party’s case, the nonmoving party must come forward
with specific facts showing a genuine issue for trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986); Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Summary judg-
ment will be granted unless a reasonable jury could return a verdict
for the nonmoving party on the evidence presented. Anderson v. Lib-
erty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
On appeal, Taylor claims the statute of repose does not protect
Crane and Vogel, contending they are the manufacturer and suppliers
of equipment, rather than the installer and designer of ordinary build-
ing materials incorporated into the design or construction of an
improvement to realty. The undisputed facts establish the lavatory
was installed by Vogel, using his discretion and component parts, and
was affixed to the wall and connected to the plumbing system for the
future benefit of the premises. In light of these facts, the district court
did not err in determining the lavatory constituted an ordinary build-
ing material incorporated in an improvement to real property under
the statute of repose, thereby shielding Vogel and Crane from suit.
See Wiggins v. Proctor & Schwartz, Inc., 330 F. Supp. 350 (E.D. Va.
1971); Eagles Court Condo. Unit Owners Ass’n v. Heatilator, Inc.,
389 S.E.2d 304, 305 (Va. 1990); Grice v. Hungerford Mech. Corp.,
374 S.E.2d 17, 19 (Va. 1988). Because Taylor did not present any
evidence establishing the lavatory was installed after the 1991 remod-
eling, the district court did not err in finding no genuine issue of mate-
rial fact existed as to when the lavatory was installed. Therefore, we
affirm the district court’s orders granting summary judgment in favor
of Vogel and Crane.
However, we find the district court erred in granting summary
judgment in favor of Wal-Mart. In premises liability cases, the plain-
tiff must introduce evidence of the responsible person’s actual or con-
structive knowledge of a defective condition on the premises to
4 TAYLOR v. WAL-MART STORES
establish a prima facie case of negligence. Grim v. Rahe, Inc., 434
S.E.2d 888, 889 (Va. 1993). Because Taylor offered no evidence of
Wal-Mart’s actual knowledge of the defective lavatory, Taylor had to
establish Wal-Mart’s constructive knowledge of the defective condi-
tion. Id. at 889-90. To establish constructive knowledge, Taylor had
to show the defect was noticeable and had existed for a sufficient
length of time to charge Wal-Mart with notice. Id. at 890.
Based on the deposition testimony of Taylor’s father, a plumbing
consultant, and a mechanical engineer, we find material issues of fact
exist as to whether the lavatory’s defective condition was noticeable
and whether the condition existed for a sufficient length of time to
charge Wal-Mart with notice. Because there is a genuine issue of
material fact as to whether, given the condition of the lavatory prior
to the incident, Wal-Mart could have foreseen the risk of danger and
should have exercised its duty to exercise reasonable care to remedy
the danger, see Memco Stores, Inc. v. Yeatman, 348 S.E.2d 228, 231
(Va. 1986), summary judgment was inappropriate as to this claim.
Accordingly, while we indicate no view of the ultimate merits, we
vacate the district court’s order granting summary judgment in favor
of Wal-Mart and remand for further proceedings as to those claims.
We affirm the district court’s orders in all other respects. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART; VACATED AND REMANDED IN PART