UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AMANDA R. RODGERS,

Plaintiff-Appellee,

v. No. 95-2815

FOOD LION, INCORPORATED,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry C. Morgan, Jr., District Judge.

(CA-95-214)

Argued: May 7, 1996

Decided: November 22, 1996

Before RUSSELL and MICHAEL, Circuit Judges, and NORTON,

United States District Judge for the District of South Carolina,

sitting by designation.

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Reversed and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Lisa Ann Bertini, MCGUIRE, WOODS, BATTLE &

BOOTHE, L.L.P., Norfolk, Virginia, for Appellant. Melvin J. Radin,

Norfolk, Virginia, for Appellee. ON BRIEF: Robert W. McFarland,

MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Norfolk, Virginia; Charles G. Meyer, III, MCGUIRE, WOODS, BATTLE &

BOOTHE, L.L.P., Richmond, 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Unpublished opinions are not binding precedent in this circuit.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:

Amanda R. Rodgers injured herself when she slipped in a puddle

of water while shopping at a store owned by Food Lion Inc. ("Food

Lion"). A jury found Food Lion liable and awarded Rodgers

$31,205.62 in damages. Food Lion appeals the district court's award

and denial of Food Lion's motion for a directed verdict. We hold the

district court erred in denying Food Lion's motions for a directed verdict, and reverse and vacate the district court's judgment.

I.

While shopping at a Food Lion store, Rodgers slipped in a puddle

of water, which she contends had pooled in the vicinity of a produce

display counter containing crushed ice. While she neither saw nor was

aware of the water before she slipped, she speculated that the water

resulted from ice chips dropping to the floor and melting when produce was removed from the display. Jack Mills, an assistant manager

who was on duty when Rodgers fell, testified that on previous occasions he had seen crushed ice fall on the floor outside the display

case, but that it was usually mopped up before it melted. He further

testified that he saw a store employee spot-mop the floor beside the

display counter approximately one-half hour before Rodgers' fall.

No store employee testified to having seen crushed ice fall from the

display counter to the floor on the evening of Rodgers' mishap. But

Billy Smith, a grocery clerk who was not on duty the evening of Rodgers' fall, testified that he had previously seen crushed ice fall to the

floor beside the display counter as customers removed melons or

other items from the display counter.

Rodgers filed a personal injury action in the Circuit Court for the

City of Suffolk, Virginia. Food Lion removed the case to the United

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States District Court for the Eastern District of Virginia, which conducted a jury trial. At the conclusion of Rodgers' case, Food Lion

moved for judgment as a matter of law under Rule 50 of the Federal

Rules of Civil Procedure. The district court denied the motion. At the

conclusion of Food Lion's evidence, Food Lion renewed its motion

for a directed verdict. Again, the district court denied Food Lion's

motion.

The jury returned a verdict for Rodgers in the amount of

$31,205.62, plus interest. Food Lion moved to set aside the verdict.

The district court denied its motion. Food Lion appealed, arguing that

it did not have actual or constructive notice of the dangerous condition causing Rodgers to slip and fall.

II.

In Virginia, the standard of care applicable to slip-and-fall cases is

well-settled:

The [store owner] owe[s] the [customer] the duty to exercise

ordinary care toward her as its invitee upon its premises. In

carrying out this duty it was required to have the premises

in a reasonably safe condition for her visit; to remove,

within a reasonable time, foreign objects from its floors,

which it may have placed there or which it knew, or should

have known, that other persons have placed there; to warn

the [customer] of the unsafe condition if it was unknown to

her, but was, or should have been, known to the[store

owner].

Colonial Stores, Inc. v. Pulley, 125 S.E.2d 188, 190 (1962). Under

this standard of care, the plaintiff need not prove that the defendant

had actual notice of a hazardous object on its floor in time to remove

it; it is sufficient for the plaintiff to prove constructive notice. Memco

Stores, Inc. v. Yeatman, 348 S.E.2d 228, 231 (1986).

If an ordinarily prudent person, given the facts and circumstances [the defendant] knew or should have known, could

have foreseen the risk of danger resulting from such circum-

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stances, the [defendant] had a duty to exercise reasonable

care to avoid the genesis of the danger.

Id.

In applying this standard to the facts before us, we find that WinnDixie Stores, Inc. v. Parker, 396 S.E.2d 649 (Va. 1990), directs our

legal determination. In Winn-Dixie, the plaintiff slipped on a snap

bean on the floor in the produce section of the store. Nobody saw or

knew how the snap bean got onto the floor. Furthermore, a store

employee testified that he had dry-mopped the floor shortly before the

accident. The Supreme Court of Virginia held that the store was not

liable. The court explained:

Nothing in the record even suggests that anyone connected

with Winn-Dixie placed the bean on the floor, and it is not

"obvious" from any evidence in the case that[the employee]

missed the bean when he mopped through the produce section. Nor could the jury have inferred that [the employee]

must have missed the bean simply because it was present on

the floor when [the plaintiff] fell. To countenance such an

inference would ignore the likelihood that the bean found its

way to the spot where [the plaintiff] fell as the result of

some action taken by another customer after [the employee]

finished mopping the produce section.

Id. at 651.*

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*In Winn-Dixie, the Supreme Court of Virginia also eliminated the

"method of display" theory of proving constructive knowledge in a slipand-fall case. In Thomason v. Great Atlantic & Pacific Tea Co., 413 F.2d

51, 52 (4th Cir. 1969), we held that a plaintiff need not establish precisely how items of food got onto a store floor. Instead, we concluded

that it is enough to show that the store's method of display made it likely

that the object would fall on the floor. Under our holding, a store is liable

if "it is reasonably foreseeable that a dangerous condition is created by,

or may arise from, the means use to exhibit commodities for sale." Id.

The Supreme Court of Virginia expressly overruled Thomason. WinnDixie, 396 S.E.2d at 651 n.3.

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Rodgers' case is indistinguishable from Winn-Dixie. The record

lacks any indication that Food Lion personnel placed the crushed ice

on the floor. And there is nothing in the record to suggest that when

the employee spot-mopped the floor around the display one half hour

before Rodgers' fall, he missed the crushed ice. The record reflects

Rodgers' failure to meet her burden of establishing that Food Lion

had either actual or constructive notice of the pooled water and failed

to remove it. Like the snap bean in Winn-Dixie , the puddle could have

been the result of some action taken by another customer after the

employee finished mopping the produce section.

Because Rodgers failed to show that Food Lion placed the foreign

substance on the floor or knew, or in the exercise of reasonable care

should have known, of its presence and failed to remove it, Food Lion

was entitled to a directed verdict. For the foregoing reasons the judgment appealed from is reversed, the jury award vacated, and judgment

entered favoring Food Lion, Inc.

REVERSED AND REMANDED

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