UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1753
RONNIE SANDERSON,
Plaintiff - Appellant,
versus
BODDIE-NOELL ENTERPRISES, INCORPORATED, d/b/a
Hardees of Emporia,
Defendant - Appellee,
and
ALVIN TEETER; SYLVIA GRAY,
Defendants,
versus
YOUNG BROADCASTING OF RICHMOND, INCORPORATED,
Party in Interest.
---------------------------------
JOEL D. BIEBER,
Movant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CA-04-888-3)
Submitted: February 2, 2006 Decided: February 28, 2006
Before WILKINS, Chief Judge, WILLIAMS, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joel D. Bieber, Richmond, Virginia, for Appellant. C. Kailani
Memmer, Elizabeth K. Dillon, GUYNN, MEMMER & DILLON, P.C., Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Ronnie Sanderson appeals the district court’s grant of summary
judgment to Boddie-Noell Enterprises, Inc. on Sanderson’s
negligence claim. Because we conclude that the district court
properly granted summary judgment, we affirm.
I.
At approximately 6:30 a.m. on January 27, 2004, Sanderson
stopped at a Hardee’s restaurant in Emporia, Virginia, for
breakfast. It had snowed recently, and because of the road
conditions Sanderson drove to the Hardee’s with his vehicle in
four-wheel drive. Sanderson noticed that the restaurant’s parking
lot had been plowed and that the sidewalk had been cleared. As
Sanderson stepped from the parking lot onto the sidewalk to enter
the restaurant, he slipped and fell.
Sanderson’s amended complaint alleged that Boddie-Noell, the
owner of the Hardee’s, was negligent for failing to clear the
sidewalk of snow and ice and failing to warn of the danger.
Depositions were taken of Elizabeth Brown, Alvin Cheatham, Fancis
Murr, and Sylvia Gray, all of whom are employees of Boddie-Noell.
Each employee testified that Cheatham had salted the sidewalk prior
to Sanderson’s arrival. In addition, two employees testified that
warning signs had been placed on the sidewalk before Sanderson’s
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arrival; the others could not remember whether the signs were
there.
Sanderson testified in his deposition that he did not know
whether salt and ice melt had been placed on the sidewalk before
his arrival and that he had no reason to dispute that salt or ice
melt had been used on the sidewalk. He also testified that he did
not “think” he saw warning signs on the sidewalk. After
considering these depositions, the district court concluded that
“the record [was] legally insufficient to establish that Boddie-
Noell breached its obligation.” (J.A. at 356.)
II.
“Summary judgement is appropriate when a party, who would bear
the burden on the issue at trial, does not forecast evidence
sufficient to establish an essential element of the case . . . such
that there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law . . . .”
Wells v. Liddy, 186 F.3d 505, 520 (4th Cir. 1999) (internal
quotation marks and citations omitted). “Viewing the facts in the
light most favorable to the non-moving party, we review the grant
of summary judgment de novo.” Id.
“The essential elements of a negligence claim in Virginia, as
elsewhere, are (1) the identification of a legal duty of the
defendant to the plaintiff; (2) a breach of that duty; and (3)
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injury to the plaintiff proximately caused by the breach.” Talley
v. Danek Medical, Inc., 179 F.3d 154, 157 (4th Cir. 1999) (citing
Locke v. Johns-Manville Corp., 275 S.E.2d 900, 904 (Va. 1981)). In
this case, the district court concluded that Sanderson was an
invitee on the premises of Boddie-Noell and that Boddie-Noell owed
a duty to Sanderson to “maintain the premises in a reasonably safe
condition and to warn him of hidden dangers.” (J.A. at 355.)
Under Virginia law, however, a business “may wait until the
end of a storm and a reasonable time thereafter before removing ice
and snow from an outdoor entrance, walk, platform, or steps.” Amos
v. Nationsbank, N.A., 504 S.E.2d 365, 366 (Va. 1998). The district
court concluded that there existed a genuine issue of material fact
whether the storm had ceased, thereby triggering Boddie-Noell’s
duty to remove the snow and ice. Although Boddie-Noell contends
the district court erred on this point, we need not address that
contention because the district court was correct to conclude that
the record was legally insufficient to show that Boddie-Noell
breached its duty to maintain the premises in a reasonably safe
condition.
The depositions of the Boddie-Noell employees established that
the sidewalk had been scraped and salted and that warning signs had
been placed prior to Sanderson’s arrival. Sanderson presented no
evidence to contradict these facts. Under Virginia law, “scraping
the snow . . . soon after the storm and attempting thereafter to
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remove systematically the remaining spots of ice . . . [is] all
that ordinary care required to maintain [the] premises in a
reasonably safe condition for [Sanderson’s] visit.” Wynne v.
Spainhour, 205 S.E.2d 634, 635 (Va. 1974).
Because Boddie-Noell did not breach its duty to Sanderson,
Sanderson’s negligence claim fails as a matter of law. We
therefore affirm the district court’s grant of summary judgment to
Boddie-Noell. 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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