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Horton v. Family Dollar Stores of West Virginia, Inc.

United States District Court, S.D. West Virginia, Charleston Division

May 26, 2017

LENORA HORTON, et al., Plaintiffs,



         Pending before the Court is Defendant Family Dollar Stores of West Virginia, Inc.'s (“Family Dollar”) Motion for Summary Judgment. (ECF No. 24.) For the reasons provided below, the Court GRANTS the motion.[1]

         I. BACKGROUND

         Plaintiffs Lenora Horton and Arthur Horton brought this action against Family Dollar and John/Jane Doe, alleging causes of action arising out of a fall that Ms. Horton suffered at a Family Dollar store located in Charleston, West Virginia. (See ECF No. 1-2 at 2.) Plaintiffs filed the Complaint in the Circuit Court of Kanawha County, West Virginia, on March 18, 2016. (See id.) The Complaint alleges that on May 25, 2014, Ms. Horton visited a Family Dollar store wherein she fell and injured herself due to a negligently maintained mat.[2] (Id. at 3 ¶¶ 4-6.) According to the Complaint, “Family Dollar, owner of the premises, or Doe, an employee/manager, should have known of the dangerous surface because a ‘reasonable' person taking care of the property would have discovered and removed or repaired it.” (Id. at 3-4 ¶ 10.) Plaintiffs assert the following four causes of action: (1) negligence, (2) premises liability, (3) loss of consortium, and (4) punitive damages. (See Id. at 3-5 ¶¶ 9-21.) They request an array of relief in the following forms:

[L]ost wages and benefits, back pay, front pay, damages for indignity, embarrassment, humiliation, annoyance, inconvenience, emotional distress, and punitive damages . . . [p]ast/present/future: lost wages, loss of consortium, medical bills, pain/suffering, loss of enjoyment of life . . . [p]re[-] and post[-]judgment interest . . . attorneys' fees and costs . . . damages for intentional injury . . . punitive damages for intentional injury . . . [d]amages for outrage/intentional infliction of emotional distress[, ] and [s]uch other and further relief as this Court may deem just and equitable.

(Id. at 6.)

         On June 14, 2016, Family Dollar removed the case to this Court pursuant to 28 U.S.C. §§ 1332, 1441. (ECF No. 1.) Family Dollar filed the current Motion for Summary Judgment on April 24, 2017. (ECF No. 24.) Plaintiffs responded to the motion on May 10, 2017, [3] (ECF No. 33), and Family Dollar filed a reply memorandum in support of its motion on May 12, 2017, (ECF No. 34). The motion is fully briefed and ripe for adjudication.


         Summary judgment is proper where the pleadings, depositions, and affidavits in the record show that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If factual issues exist that properly can be resolved only by a trier of fact because they may reasonably be determined in favor of either party, summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Pulliam Inv. Co., Inc. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). The moving party bears the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Id.

         When determining whether there is an issue for trial, the Court must view all evidence in the light most favorable to the nonmoving party. Mellen v. Brunting, 327 F.3d 355, 363 (4th Cir. 2003). “[T]he issue of material fact required by Rule 56[a] to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 248-49. The nonmoving party may not rest on the pleadings alone and must show that specific material facts exist by offering more than a mere “scintilla of evidence” in support of his or her position. Id. at 252. Lastly, the nonmoving party may not avoid summary judgment “by submitting an affidavit that conflicts with earlier deposition testimony.” Alba v. Merrill Lynch & Co., 198 F. App'x 288, 300 (4th Cir. 2006) (citing Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984)).


         Family Dollar moves for summary judgment, arguing that there is no issue of material fact regarding the state of the mat upon which Ms. Horton allegedly fell and that no negligent conduct has been proven. (See ECF No. 25 at 1-2.) Further, Family Dollar argues that Plaintiffs have not shown that Ms. Horton's alleged injuries were proximately caused by her fall on May 25, 2014. (See id.) Plaintiffs contend in their response that “there is a factual dispute as to the reason for the event (trip and fall), notice of the defective condition, and injuries sustained.” (ECF No. 33 at 1.) Plaintiffs attach an affidavit by Ms. Horton in support of their argument that a factual dispute exists to preclude summary judgment. (See ECF No. 33-1.) In its reply, Family Dollar reiterates the arguments within its initial memorandum and notes that “Plaintiffs' Response fails to bring forth any record evidence to attempt to even establish these alleged material facts or that a genuine issue of material fact remains for any of their claims and damages to survive summary judgment.” (ECF No. 34 at 2.) Family Dollar argues that Ms. Horton's affidavit attached to Plaintiffs' response “goes completely against the record evidence, which includes Plaintiff Lenora Horton's deposition testimony and discovery responses.” (Id. (categorizing the exhibit as a “self-serving, sham Affidavit”).)

         The law governing negligence in West Virginia is well settled. See, e.g., Wheeling Park Comm'n v. Dattoli, 787 S.E.2d 546, 551 ( W.Va. 2016). “[I]t is incumbent upon the plaintiff to establish, by a preponderance of the testimony, three propositions: (1) [a] duty which the defendant owes him; (2) [a] negligent breach of that duty; [and] (3) injuries received thereby, resulting proximately from the breach of that duty.” Id. (quoting Webb v. Brown & Williamson Tobacco Co., 2 S.E.2d 898, 899 ( W.Va. 1939)); see also Grose v. W.Va. Alloys, Inc., No. 15-3818, 2016 WL 2587190, at *3 (S.D. W.Va. May 4, 2016) (citing Hersh v. E-T Enters., Ltd. P'ship, 752 S.E.2d 336, 341 ( W.Va. 2013)). “Liability of a person for injury to another cannot be predicated on negligence unless there has been on the part of the person sought to be charged some omission or act of commission in breach of duty to the person injured.” Morrison v. Roush, 158 S.E. 514, 515 ( W.Va. 1931). Significantly, the West Virginia Supreme Court of Appeals has held the following:

The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that ...

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