UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ARLENE W. NEWCOMB,

Plaintiff-Appellant,

v. No. 95-3044

FOOD LION, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Danville.

Jackson L. Kiser, Chief District Judge.

(CA-95-16-D)

Argued: July 10, 1996

Decided: August 20, 1996

Before WILKINS and LUTTIG, Circuit Judges, and

G. ROSS ANDERSON, JR., United States District Judge for the

District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Carrington Thompson, Chatham, Virginia, for

Appellant. Jim Harold Guynn, Jr., GUYNN & BRITT, P.C., Roanoke,

Virginia, for Appellee. ON BRIEF: Mark M. Caldwell, III, PETTUS

& CALDWELL, P.C., Keysville, Virginia for Appellant.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

On a rainy September 22, 1994, Arlene Newcomb went to the grocery store, a Food Lion. Newcomb knew it had been raining since

early that morning. As she approached the store, Newcomb saw

patrons standing outside the store, under an overhang, shaking their

umbrellas. Newcomb paused outside the doors and removed her rain

cap. Newcomb admits that she "didn't do anything special that day

because it was raining." She then entered the store.

To her left was the shopping cart corral and under her feet was a

carpeted floor mat. Newcomb then took one step off the mat and her

feet "shot out" from under her. Newcomb states that at the time she

fell, her sight was focused on the shopping carts on her left. After she

fell, Newcomb noticed that the floor mat was wet by feeling its wetness against her body. Similarly, Newcomb noticed"several dozen"

wet footprints leading from the floor mat to the interior of the store.

She noticed these footprints only after she fell. Newcomb also stated

that had she been looking at the floor when she stepped off the mat,

she could have seen the foot prints. She was also aware that water is

often tracked indoors when it rains. There were no"wet floor" caution

signs placed near the entrance of the store.

Newcomb brought this action alleging that Food Lion owed her, as

a business invitee, a duty of care to remove or warn of hazards created

by the rain.

Food Lion moved for summary judgment because the footprints

were "open and obvious" and by failing to avoid them, Newcomb was

contributorily negligent as a matter of law. The trial court agreed and

granted summary judgment. Thus, the issue presented is whether the

trial court properly granted summary judgment on these facts.

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Since this is in the context of a motion for summary judgment, this

Court reviews the decision of the trial court de novo. Further, all disputes in the facts, and inferences from the facts, must be considered

in a light most favorable to the non-movant--here the Plaintiff.

Under Virginia law, a store owner owes its customers a duty to

exercise ordinary care toward them when they enter the premises.

Winn-Dixie Stores, Inc. v. Parker, 240 Va. 180, 396 S.E.2d 649

(1990). The owner must maintain its premises in a reasonably safe

condition, and must warn a customer of any unsafe condition that is

unknown to the customer but that is, or should be, known to the

owner. Id.; see also Colonial Stores Inc. v. Pulley, 203 Va. 535, 125

S.E.2d 188 (1962). An owner of the premises, however, is not an

insurer of the invitee's safety. The invitee must look out for her own

safety by avoiding "open and obvious" dangers. Rocky Mount Shopping Center Associates v. Steagall, 235 Va. 636, 369 S.E.2d 193

(1988).

Failing to avoid "open and obvious" dangers may render the plaintiff contributorily negligent. In Virginia, a Plaintiff is contributorily

negligent if he or she "failed to act as a reasonable person would have

acted for his own safety under the circumstances." Artrip v. E.E.

Berry Equip. Co., 240 Va. 354, 397 S.E.2d 821 (1990).

Contributory negligence in this case is determined by whether the

hazard, a wet floor as evinced by footprints, was"open and obvious."

If the wet floor was "open and obvious", then the plaintiff may be

contributorily negligent as a matter of law. Normally, both contributory negligence in general, and the open and obvious nature of the

hazard in specific, are jury questions. Id. at 358, 397 S.E.2d at 823.

Scott, 241 Va. at 572, 575, 74 S.E.2d 51, 53 (1953). In clear cases,

however, the contributory negligence of the plaintiff may be established as a matter of law.

There is no requirement that a pedestrian must look down while

stepping forward. Little Creek Investment Corp. v. Hubbard, 249 Va.

258, 455 S.E.2d 244 (1995). That is, "the circumstances of each case

must be considered to determine whether a pedestrian who failed to

look nevertheless produced sufficient evidence to support a finding

that the pedestrian exercised reasonable care for his or her safety

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under the circumstances. If such evidence is produced, a jury question

is presented." Id. at 249 Va. 261, 455 S.E.2d 246.

Thus, we are called to answer whether under the circumstances

here, and with all reasonable inferences drawn for the plaintiff, the

wet floor immediately inside the front door of the store, on a rainy

day and evinced by footprints, was an open and obvious hazard that

every reasonable person would have noticed and avoided. We hold

that the wet floor was sufficiently open and obvious in this case.

Patrons in a store are not allowed to be oblivious to the state of

their environment. As a matter of law, the Plaintiff should have been

on guard for a wet floor, evinced by footprints, on a rainy day in an

area directly inside the entrance to the store. Because the plaintiff

failed to look out for her own safety, the Plaintiff was contributorily

negligent as a matter of law under the specific facts presented here.

The court is aware of Nuckoles v. F.W. Woolworth , 372 F.2d 286

(4th Cir. 1967). In Nuckoles, this court held that whether a box, similar in color to the floor in a store, located in an aisle, and potentially

obscured by the presence of a store clerk, presented a jury question

as to the plaintiff's contributory negligence. Nuckoles is different than

the instant case.

Here, it is reasonable to hold that plaintiff should have been on the

look out for a wet floor in an area immediately inside the front of the

store when it had been raining all day. In Nuckoles, it was not reasonable to expect a floor-colored box in an aisle that may have been partially hidden by a store clerk.

Accordingly, based on the specific facts of this case, plaintiff was

contributorily negligent as a matter of law. Judgment of the District

Court is

AFFIRMED.

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