UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1332
EDWARD KIJEWSKI,
Plaintiff - Appellant,
versus
BIG LOTS STORES,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CA-04-774-3)
Submitted: September 29, 2005 Decided: October 5, 2005
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David E. Noll, CRAVENS & NOLL, P.C., Richmond, Virginia, for
Appellant. William B. Tiller, J. Matthew Haynes, Jr., BEATYTILLER,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Edward Kijewski appeals from the district court's order
granting summary judgment in favor of Big Lots Stores, Inc. (“Big
Lots”) in Kijewski’s trip and fall premises liability case.
Following discovery and the arguments of counsel for the parties on
Big Lots’ summary judgment motion, the district court granted
summary judgment in favor of Big Lots, finding that the case was a
classic case covered by Southern Floors and Acoustics, Inc. v.
Anthony Max-Yeboah, 594 S.E.2d 908 (Va. 2004). Our review of the
record and the district court's opinion discloses that this appeal
is without merit.
Factually, there is no genuine issue of material fact in
dispute. Kijewski sustained injury when he tripped on a piece of
steel or “metal rubber tread” that was sticking up “between three-
quarters to an inch” off the ground at the door threshold as he
exited the store for the second time in a twenty-five minute
period. Specifically, Kijewski had entered the store by the left
exit door because it was open and the right side entrance door was
under construction at the time and had brown plastic tape across
it. He then exited through the same door he had entered,
discovered that he had forgotten an item, re-entered the store to
purchase the item, and exited the store for the second time through
the same exit door through which he had entered. It was during his
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second exit of the store that he tripped and fell, sustaining
injury.
On appeal, Kijewski asserts that the Southern Floors case
is distinguishable because the exit door through which he was
passing when he tripped and fell was not being worked on by the
door company.1 He contends that the ingress and egress in which he
tripped was being used by all Big Lots patrons while the
construction workers worked on the set of doors immediately next to
the open ingress/egress. He testified that he did not know how
long the alleged defective condition existed before he fell, nor
did he know who or what caused the condition. Nor did Kijewski
present any evidence of actual or constructive notice of the
alleged defect by Big Lots. This court reviews de novo the
district court’s grant of summary judgment. Shaw v. Stroud, 13
F.3d 791, 798 (4th Cir. 1994).
While Kijewski distinguishes the facts of his case from
those in Southern Floors, making much of his argument that the
doorway in which he tripped was not under actual construction at
the time of his fall,2 he does not offer any evidence that Big Lots
had any actual or constructive notice of the defect, which was the
legal theory supporting the reversal of liability against Food Lion
1
The company conducting the construction was an entity
separate from Big Lots and was not made a party to the litigation.
2
In Southern Floors, the plaintiff fell in the same aisle and
area that was under construction. 594 S.E.2d at 910.
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in Southern Floors, and which is the point of law on which the
district court in this case based its decision. See also Winn-
Dixie Stores v. Parker, 396 S.E.2d 649 (Va. 1990) (under Virginia
law, a plaintiff in a trip and fall case must show evidence of
actual or constructive notice by the premises owner of a dangerous
condition to establish a prima facie case of negligence).
Kijewski’s failure to demonstrate evidence of actual or
constructive notice of the condition that caused his fall is fatal
to his prima facie case and supports the district court’s adverse
grant of summary judgment.
Accordingly, because there is no genuine issue of
material fact in dispute, we affirm the district court’s order
granting Big Lots’ summary judgment motion. 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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