Present: All the Justices
DORIS KNIGHT FULTZ
OPINION BY
v. Record No. 080782 JUSTICE LAWRENCE L. KOONTZ, JR.
June 4, 2009
DELHAIZE AMERICA, INC.,
D/B/A FOOD LION, INC., ET AL.
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Cheryl V. Higgins, Judge
Doris Knight Fultz, a customer at a Food Lion grocery
store, injured herself when she tripped over a metal bar
attached to the floor and extending along the side and to the
front of an automated teller machine (“ATM”) located inside
the grocery store. The sole issue we consider in this appeal
is whether Fultz was contributorily negligent as a matter of
law. Specifically, we consider whether the circuit court
erred in determining that the issue whether Fultz was
reasonably distracted before injuring herself on an open and
obvious hazard was appropriate for summary judgment.
BACKGROUND
Pursuant to Rule 3:20, we examine the facts as presented
in the pleadings, the orders made at a pretrial conference,
and the party admissions. After completing her shopping at
the Food Lion grocery store located on the 4000 block of
Franklin Road in Roanoke on August 7, 2004, Fultz walked
directly to the ATM located in the front vestibule area of the
store. The ATM had been installed and maintained by
Nationwide Money Services, Inc. Actual dimensions of the ATM
and the bars were not included in the record. However,
Fultz’s answers to interrogatories and three photographs of
the ATM and bars filed as exhibits illustrate the overall
appearance, color, shape, and general placement of the ATM and
the bars. The interrogatory answers and photographic exhibits
depict two bars, each approximately twice the length of the
ATM, bolted to the floor on either side of the machine. Less
than four inches of space exists between the bars and the ATM.
The bars extend into the walkway from either side of the ATM
three feet in front of the machine. The bars are bolted to
the floor by four metal struts attached to each bar. The bars
sit approximately five inches off of the floor. The bars
appear to be wrought of a dark smooth metal and to be more
than two, but less than five inches in diameter. The
photographs depict off-white or beige floor tiles beneath the
ATM and the bars.
In order to use the ATM, an individual would first have
to step over one of the bars if approaching the ATM from the
side, or walk directly between the bars if approaching from
the front of the machine. The placement of the bars forced a
user of the ATM like Fultz, to stand between both bars while
using the machine.
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Fultz’s three-year old grandson accompanied her when she
approached the ATM. While using the ATM, Fultz’s grandson
suddenly moved away from her. Fultz turned, moved toward her
grandson, and tripped over one of the metal bars. The impact
from the fall fractured three bones in Fultz’s right elbow.
Fultz thereafter filed in the Circuit Court of the City
of Albemarle an amended complaint against Delhaize America,
Inc., the parent company of Food Lion, Inc., Food Lion, LLC,
and Nationwide Money Services, Inc. (collectively, “the
defendants”), seeking damages for her injuries from her fall. ∗
Ultimately, the circuit court held that the bars protruding
from the sides of the ATM represented an open and obvious
hazard, and that Fultz was contributorily negligent as a
matter of law when she tripped over one of those bars and
injured herself. Accordingly, the circuit court granted the
defendants’ motion for summary judgment. We awarded Fultz
this appeal.
∗
The record does not reflect which of the defendants
installed the metal bars and under what circumstances this was
done. Based upon a review of the photographic exhibits,
however, it is a reasonable inference that the bars were
installed to protect the ATM from being damaged by grocery
carts stored next to it. In the procedural posture of the
case, and for purposes of resolving this appeal, we will
merely assume that the defendants acted jointly.
Additionally, we note that venue is not an issue in this case.
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DISCUSSION
Under well-settled principles, we review the record
applying the same standard a trial court must adopt in
reviewing a motion for summary judgment, accepting as true
those inferences from the facts that are most favorable to the
nonmoving party, unless the inferences are forced, strained,
or contrary to reason. Dickerson v. Fatehi, 253 Va. 324, 327,
484 S.E.2d 880, 882 (1997); Carson v. LeBlanc, 245 Va. 135,
139-40, 427 S.E.2d 189, 192 (1993). In this context, we have
repeatedly held that summary judgment is a drastic remedy,
available only when there are no material facts genuinely in
dispute. Stockbridge v. Gemini Air Cargo, Inc., 269 Va. 609,
618, 611 S.E.2d 600, 604 (2005); Smith v. Smith, 254 Va. 99,
103, 487 S.E.2d 212, 215 (1997); Slone v. General Motors
Corp., 249 Va. 520, 522, 457 S.E.2d 51, 52 (1995). Thus, if
the evidence is conflicting on a material point or if
reasonable persons may draw different conclusions from the
evidence, summary judgment is not appropriate. See Jenkins v.
Pyles, 269 Va. 383, 388, 611 S.E.2d 404, 407 (2005)(applying
this principle to motion to set aside jury verdict).
Furthermore, we have previously observed that we are
increasingly confronted with appeals of cases in which a trial
court incorrectly has short-circuited litigation pretrial and
has decided the dispute without permitting the parties to
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reach a trial on the merits. Renner v. Stafford, 245 Va. 351,
352, 429 S.E.2d 218, 219 (1993); see also CaterCorp, Inc. v.
Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279
(1993). This is another such case.
It is well-established that Virginia law requires
storeowners to maintain reasonably safe facilities for their
invitees’ visits. As we explained long ago, a storeowner is
not an insurer of the invitee’s safety on the premises, but
must use ordinary care to render them reasonably safe for the
invitee's visit. Knight v. Moore, 179 Va. 139, 145, 18 S.E.2d
266, 269 (1942)(citing cases). Further, while a storeowner
“must give notice or warning of an unsafe condition which is
known to him and is unknown to the invitee, such notice is not
required where the dangerous condition is open and obvious,
and is patent to a reasonable person exercising ordinary care
for his own safety.” Id. at 146, 18 S.E.2d at 269 (citing
Eastern Shore of Va. Agric. Ass’n v. LeCato, 151 Va. 614, 619-
20, 144 S.E. 713, 714 (1928)). In addition, an invitee also
“has the right to assume that the premises are reasonably safe
for his visit,” and “[i]n the absence of knowledge or warning
of danger, . . . is not required to be on the lookout for it.”
Id. at 146, 18 S.E.2d at 270 (citing cases).
For purposes of our resolution of this appeal, we will
assume, without deciding, that the protruding metal bars
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constituted an open and obvious dangerous condition on the
premises. We note, however, that “[w]hen the defect is of
such a character that reasonable and prudent [persons] may
reasonably differ as to whether an accident could or should
have been reasonably anticipated from its existence or not,
then the case is generally one for the jury.” City of Roanoke
v. Sutherland, 159 Va. 749, 758, 167 S.E. 243, 246 (1933).
Thus, assuming the metal bars constituted an open and obvious
dangerous condition, the focus of this appeal is whether the
facts as presented in the pleadings and the party admissions
support the circuit court’s grant of summary judgment in favor
of the defendants on the ground that Fultz was contributorily
negligent as a matter of law.
In Moses v. Southwestern Va. Transit Management Co., 273
Va. 672, 643 S.E.2d 156 (2007), we recently reviewed the well-
established principles of law that define contributory
negligence and its determination. As pertinent here, we
recounted that “[c]ontributory negligence is an affirmative
defense that must be proved according to an objective standard
whether the plaintiff failed to act as a reasonable person
would have acted for his or her own safety under the
circumstances. The essential concept of contributory
negligence is carelessness. The issue whether a plaintiff is
guilty of contributory negligence is ordinarily a question of
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fact to be decided by the fact finder. The issue becomes one
of law for the circuit court to decide only when reasonable
minds could not differ about what conclusion could be drawn
from the evidence.” Id. at 678, 643 S.E.2d at 159-60
(internal citations and quotation marks omitted).
When, as here, the issue of the plaintiff’s contributory
negligence arises from the plaintiff’s injury by an open and
obvious dangerous condition, the plaintiff has the burden to
show conditions outside herself which prevented her seeing the
dangerous condition or which would excuse her failure to
observe it. Southern Floors & Acoustics, Inc. v. Max-Yeboah,
267 Va. 682, 686, 594 S.E.2d 908, 910-11 (2004)(jury issue
presented when plaintiff tripped over stack of tiles after
contractor’s employees yelled and pointed). In other words,
when the plaintiff was distracted and suffered injuries from
an open and obvious defect, a jury issue as to the plaintiff’s
contributory negligence can be created. However, “‘more is
needed than a simple allegation of a distraction to create a
jury issue. It [is] necessary for [the] plaintiff to
establish that [her] excuse for inattention was reasonable,
i.e., that the distraction was unexpected and substantial.’ ”
Id. at 686, 594 S.E.2d at 910 (quoting citing West v. City of
Portsmouth, 217 Va. 734, 737, 232 S.E.2d 763, 765 (1977)).
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In West, a pedestrian injured himself after walking into
a water meter box on a public sidewalk. West argued that
customers entering and exiting an adjacent bakery had
distracted him. Id. at 737, 232 S.E.2d at 765. He contended
that this evidence was sufficient to establish a condition and
a distraction “outside of himself” which prevented him from
seeing the defect in the sidewalk. Id. According to West, a
question of fact for the jury was presented as to whether he
exercised ordinary care under the circumstances. We rejected
this contention, reasoning that “[a] careful review of the
evidence compels the conclusion that [West] was simply not
observant and neglected to see what was . . . open and
obvious, and what, by maintaining a lookout commensurate with
the circumstances then existing, he should have seen.” Id. at
739, 232 S.E.2d at 767.
Nonetheless, we have specifically declined to hold that,
as a matter of law, a pedestrian’s failure to look down while
stepping forward necessarily constitutes contributory
negligence in every case. Little Creek Inv. Corp. v. Hubbard,
249 Va. 258, 261, 455 S.E.2d 244, 246 (1995)(citing City of
Suffolk v. Hewitt, 226 Va. 20, 28, 307 S.E.2d 444, 448
(1983)). Furthermore, as we stated in Little Creek, “the
circumstances of each case must be considered to determine
whether a pedestrian who failed to look nevertheless produced
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sufficient evidence to support a finding that the pedestrian
exercised reasonable care for his or her safety under the
circumstances. If such evidence is produced, a jury question
is presented.” 249 Va. at 261, 455 S.E.2d at 246. See also
Miracle Mart, Inc. v. Webb, 205 Va. 449, 452, 137 S.E.2d 887,
890 (1964) (invitee injured by slipping on wet floor of a
store not barred from recovery by contributory negligence
where a store employee had distracted her).
In the present case, Fultz did not trip on the metal bars
while walking from one point to another as she approached the
ATM. The thrust of her allegations is that once she arrived
at the ATM, she was distracted from the hazard the metal bars
presented both by her use of the ATM and the sudden movement
of her grandson. It is a matter of common knowledge and
experience that manipulating the user interface of an ATM
requires a degree of concentration, that young children
frequently accompany adults while shopping at grocery stores,
and that such children frequently require the attending adults
to respond to the children’s sudden and unexpected movements.
Whether the occurrence of such circumstances would excuse
inattentiveness to an open and obvious dangerous condition,
such as the protruding metal bars here, would depend upon the
circumstances of the particular case.
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We are of opinion that reasonable minds could differ as
to whether under the circumstances of this case, Fultz acted
as a reasonable person would have acted for her own safety.
Thus, we hold that the circuit court erred in determining that
Fultz was guilty of contributory negligence as a matter of
law.
CONCLUSION
For these reasons, the circuit court erred in granting
the defendants’ motion for summary judgment. Accordingly, we
will reverse the judgment of the circuit court and remand this
case for further proceedings consistent with this opinion.
Reversed and remanded.
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