United States District Court, S.D. West Virginia, Huntington Division
RHONDA K. SHROPSHIRE, and BYRON K. SHROPSHIRE, Plaintiffs,
THE KROGER CO., Defendant
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, CHIEF JUDGE.
before the Court is Plaintiffs' Objection to the
Magistrate's Proposed Findings and Recommendations
(“PF&R”), recommending that Defendant's
Motion for Summary Judgment be granted and Plaintiffs'
cased be dismissed with prejudice. For the following reasons
the Court rejects Plaintiffs' objection and adopts the
PF&R in all respects.
January 16, 2014, Plaintiff Rhonda Shropshire slipped and
fell on a plastic shopping bag at a Kroger supermarket on
Fifth Avenue in Huntington, West Virginia. Shropshire
fractured her tenth rib and suffered a contusion to her chest
and abdomen along with low back, neck, and pelvic pain.
Shropshire, along with her husband and co-Plaintiff Byron
Shropshire, brought suit to recover compensatory and punitive
slipped on the bag near the cashiers. Kyle Parlett, a nearby
cashier, was attending to customers just before Shropshire
slipped. By Parlett's account, just seconds before
Shropshire slipped, he noticed the bag on the ground. When he
looked back in that direction Shropshire was already on the
ground. He explained that the bag had not moved since he
first noticed it. Another Kroger employee attempted to assist
Shropshire but she refused any help, electing to lie on the
floor until an ambulance arrived. Shropshire was taken to St.
motion for summary judgment the Magistrate determined that
Shropshire was a non-trespassing visitor to the Kroger and
therefore Kroger owed her a duty of reasonable care.
Kroger's duty, the Magistrate held, included taking
reasonable steps to lessen the risks posed by a hazard of
which Kroger had either actual or constructive knowledge.
Although the Magistrate found that there was no dispute that
Shropshire fell and injured herself because she slipped on
the plastic bag, the Magistrate also found that Shropshire
presented no evidence that Kroger knew the bag was on the
floor or had time to remove it. Without some evidence that
Kroger both knew the bag was on the floor and had time to
collect it, the Shropshire's cannot maintain their suit.
Shropshire's argue that a business owes a duty of
reasonable care to all non-trespassing visitors and to comply
with this duty the Kroger store at issue here had a floor
sweeping and maintenance policy. The Shropshire's contend
that the reason Kroger implemented this policy was to comply
with their common law duty of care but that in this case
Kroger did not follow its own policy.
obtain summary judgment, the moving party must show that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In considering a motion for summary
judgment, the Court will not “weigh the evidence and
determine the truth of the matter.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead,
the Court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
nonmoving party nonetheless must offer some “concrete
evidence from which a reasonable juror could return a verdict
in his [or her] favor.” Anderson, 477 U.S. at
256. Summary judgment is appropriate when the nonmoving party
has the burden of proof of an essential element of his or her
case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The
nonmoving party must satisfy this burden of proof by offering
more than a mere “scintilla of evidence” in
support of his or her position. Anderson, 477 U.S.
Court notes that the Shropshire's are pro se
plaintiffs and therefore the Court will read their objections
broadly and charitably. Still, the Shropshire's do not
raise any defects in the Magistrate's PF&R. The
presence of the bag on the ground and Kroger's
maintenance policy, even if not followed in this instance,
would not permit a fact finder to conclude that Kroger
breached its duty of reasonable care. As correctly explained
by the Magistrate, Kroger must have had knowledge, actual or
constructive, of the bag on the floor and an opportunity to
clean it up. Here, although there is some evidence that
Kroger, by way of a cashier, knew the bag was on the floor,
there is no evidence that Kroger had notice of more than a
few seconds before Shropshire fell. In this case, the
Magistrate held that without some evidence supporting a claim
that Kroger had an opportunity to remove the bag, no fact
finder could conclude that Kroger had acted unreasonably.
illustrate the point, imposing a duty on Kroger to remove any
hazard immediately upon notice to Kroger would be comparable
to imposing a duty on property owners to clear every part of
a walkway of snow the moment any amount accumulated on its
surface. Otherwise, the owner could be held liable for an
injury caused by the snow even if it was physically
impossible for the property owner to clear the walkway before
the injury. It is an unachievable standard that society has
wisely chosen not to impose, save activities subject to
strict liability not applicable here. Instead, society
expects businesses and property owners to act reasonably in
the care of their property. Hersh v. E-T Enters., Ltd.
P'ship, 752 S.E.2d 336, Syl Pt. 4 ( W.Va. 2013)
(quoting Mallet v. Pickens, 522 S.E.2d 436, Syl. Pt.
6 ( W.Va. 1999)). As a corollary, some accidents that result
in injury are just that-accidents, for which no party bears
fault so long as the duty bound party acted reasonably.
Shropshire has not presented evidence that Kroger acted
Court is sympathetic to Shropshire's injuries and does
not doubt their seriousness. Nevertheless, an injury caused
by some “foreign substance, ” by itself, does not
support an inference of negligence. Scarberry v. Target
Corp., No. 5:12-cv-57, 2013 WL 3326458, at *2-3 (N.D.
W.Va. July 1, 2013) (quoting Rankin v. S.S. Kresge
Co., F.Supp. 613, 617 (N.D. W.Va. 1945)). The
Shropshire's must produce evidence on every essential
element of their claim for which they bear the burden of
proof such that a reasonable trier of fact could find in
their favor. Celotex, 477 U.S. at 322-23. They have
failed to come forward with evidence supporting the essential
element that Kroger not only knew of the hazard but also had
an opportunity to remedy it but did not. Had they produced
evidence that the bag was on the floor for more than a few
seconds, that Kroger placed it there intentionally, that
other patrons had slipped on the bag (which might also tend
to show that the bag was there for more than a few seconds),
or that Kroger habitually failed to keep the entrances of
that particular store clean and safe, the Shropshire's
might have avoided summary judgment. They have failed to
produce any such evidence and accordingly, summary judgment
is proper in this case.
foregoing reasons the Court ACCEPTS and ADOPTS the findings
in the Magistrates PF&R, ECF No. 30, and GRANTS
Defendant's Motion for Summary Judgment, ECF No. 21.
Accordingly, Plaintiffs' case is DISMISSED.
Court DIRECTS the Clerk to send a copy of this Order to
counsel of ...