United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON UNITED STATES DISTRICT JUDGE.
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.
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. (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
(Id. at 6.)
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,  (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
STANDARD OF REVIEW
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.
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)).
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”).)
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 ...