UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANN PRINDES,

Plaintiff-Appellant,

v. No. 96-1636

WINN-DIXIE RALEIGH, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CA-95-818)

Argued: March 6, 1997

Decided: April 23, 1997

Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Thomas Hunt Roberts, ROBERTS PROFESSIONAL

LAW CENTER, Richmond, Virginia, for Appellant. Robert Barnes

Delano, Jr., SANDS, ANDERSON, MARKS & MILLER, Richmond,

Virginia, for Appellee. ON BRIEF: John A. Conrad, Henry C. Spalding, III, SANDS, ANDERSON, MARKS & MILLER, Richmond,

Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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:

The instant appeal stems from a slip and fall accident in a WinnDixie grocery store. While shopping, Ann Prindes slipped on some

fluid in the aisle of a local Winn-Dixie store. As a result, she

sued

Winn-Dixie alleging negligence. Winn-Dixie filed a motion for summary judgment, and the district court granted the motion concluding

that no facts existed from which the jury could infer Winn-Dixie's

actual or constructive knowledge of the fluid on the floor that

caused

Prindes' injuries. We affirm.

I.

FACTS AND PROCEDURAL HISTORY

On January 20, 1993, Prindes entered the business premises of

Winn-Dixie in Chesterfield County, Virginia. As Prindes was shopping, she stepped in a substance which had formed a small puddle,

slipped and fell to the ground thereby sustaining serious

injuries.1

Both Prindes and Lako Y. Cokes, a customer who was in the area

and who came down the aisle just after Prindes fell, testified in

their

respective depositions that Winn-Dixie stock boys were in the aisle

when Prindes fell. In addition, both Prindes and Cokes testified

that

several boxes were stacked and placed in the aisle. In her

deposition,

Cokes stated that she observed a liquid substance of a yellowish

color

that appeared to be fruit juice. Prindes testified that the liquid

appeared to be from a juice package and was brownish-orange.

Prindes further testified that the liquid was sticky or dried at

the edges

of the small puddle.

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1 Prindes injured her back, hip, leg and heel in the fall.

2
David Ledford, Prindes' son, testified that he observed a brownishorange substance in a puddle that appeared to be dried. He further

testified that the puddle was readily observable and"hard to miss."

Christina Fagan, David Ledford's then fiancee, in her sworn

affidavit,

testified that she observed the liquid on the bottom of one of

Prindes'

shoes. Fagan also noted that the spill was streaked.

After Prindes' fall, Ernest Spates, the store manager, arrived.

After

Spates checked with Prindes about the extent of her injuries, he

called

an ambulance, and Prindes departed by ambulance to the hospital.

According to Cokes, when Spates arrived to assist Prindes, Spates

appeared to be trying to conceal the liquid with his foot as he was

talking to Prindes. Prindes, Fagan, and Ledford, testified that at

no

time prior to when Prindes left by ambulance did the Winn Dixie

employees attempt to remove the liquid or to warn other customers

of the hazard by either posting signs or placing cones where

Prindes

fell. Spates testified in his deposition that the aisle where

Prindes fell

had been inspected fifteen minutes before her arrival, and no

liquid

substance was present in the aisle.

On October 3, 1995, Prindes sued Winn-Dixie alleging in her complaint that she sustained personal injuries in a slip and fall

accident

while shopping at the Winn-Dixie store located in Chesterfield,

Virginia. On November 15, 1995, Winn-Dixie filed its answer denying

the allegations of negligence and asserting the defense of

contributory

negligence. After the conclusion of depositions, on March 8, 1996,

Winn-Dixie filed a motion for summary judgment. On April 9, 1996,

the district court granted Winn-Dixie's motion for summary judgment. Prindes now appeals.

II.

DISCUSSION

Summary judgment is proper if no genuine issue of material fact

exists and the moving party is entitled to judgment as a matter of

law.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The court

reviews the district court's grant of summary judgment de novo. See

Cooke v. Manufactured Homes, Inc., 998 F.2d 1256, 1260 (4th Cir.
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1993). The parties agree that Virginia law applies in the instant

diversity of citizenship action. Erie R.R. v. Tompkins, 304 U.S. 64

(1938).

In Winn-Dixie Stores v. Parker, 396 S.E.2d 649 (Va. 1990), the

court restated the following well-settled Virginia rule applicable

to

slip and fall cases such as the instant litigation:

The [store owner] owed 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 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].

Id. at 650 (quoting Colonial Stores v. Pulley, 125 S.E.2d 188 (Va.

1962)); Safeway Stores, Inc. v. Tolson, 121 S.E.2d 751, (Va.

1961)(store owner is not the insurer of safety of invitees upon its

premises). Moreover, in Memco Stores, Inc. v. Yeatman, 348 S.E.2d

228 (Va. 1986), the Virginia Supreme Court stated:

[The plaintiff] was not required to prove that the defendant

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

to remove it. It was sufficient to prove constructive notice.

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

foreseen the risk of danger resulting from such circumstances, [the store] had a duty to exercise reasonable care to

avoid the genesis of danger.

Id. at 231. (Italics in original).

On appeal, Prindes contends that the district court failed properly

to apply Virginia law to the facts in the instant case. On the

other

hand, Winn-Dixie argues that the district court correctly applied

the

law to determine that no genuine issues of material fact existed,

and

thus, the district court should be affirmed. Alternatively,

Winn-Dixie

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argues that the district court should be affirmed because Prindes

was

guilty of contributory negligence for failing to observe an open

and

obvious danger.

The controversy in the instant case centers on whether Winn-Dixie

had constructive knowledge of the existence of the liquid substance

upon which Prindes slipped.2 The burden rests on Prindes to

establish

that Winn-Dixie was negligent and that such negligence was the

proximate cause of her injury. The Great Atlantic & Pacific Tea Co.,

Inc.

v. Berry, 128 S.E.2d 311, 313 (Va. 1962).

Prindes argues that Winn-Dixie's constructive knowledge is demonstrated by: (1) the fact that the liquid substance, apparently

fruit

juice, had begun to dry on the edges suggesting that the liquid had

been on the floor for some time, and (2) the fact that several

WinnDixie employees were engaged in stocking activity at the location

where Prindes fell on the liquid substance.

On appeal, Prindes primarily attacks the district court's reliance

on

Berry arguing that the district court misinterpreted Berry to

preclude

any inferences as to the time a substance is on the floor based on

the

condition of the substance.

In Berry, the plaintiff accompanied by her husband, went to the

store to buy groceries. Berry, 128 S.E.2d at 312. As the plaintiff

reached for an item, she slipped on a piece of celery, which apparently was located on the floor under the shelf. Id. The plaintiff

sued

the store for negligence.

Neither party alleged that the store had actual knowledge of the

piece of celery on the floor, but rather, the case turned on the

store's

constructive knowledge. Plaintiff attempted to support her

constructive knowledge theory by arguing that the darkened condition of the

piece of celery indicated that the celery had been on the floor for

a

period of time. Id. at 313.3 In denying plaintiff relief, the

Virginia

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2 Although Prindes' counsel at oral argument argued that Winn-Dixie

had both actual and constructive knowledge, no evidence exists in
the

record to support an actual knowledge finding.

3 Plaintiff also claimed that the existence of pieces of paper and

one or

two cigarette butts in the same general area of the celery

indicated that

an employee of the store had carelessly swept the aisle. Id. at

313.

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Supreme Court stated that "[t]o hold for the plaintiff on either

basis

would require pure speculation and conjecture." Id. at 313. The

court

reasoned that the plaintiff could have caused the discoloration of

the

piece of celery when she stepped on it; or the celery could have

been

dropped by a customer, rather than a store employee. The court also

noted that it was just as likely that a customer could have kicked

the

celery under the shelf as by a sweeping store employee. Id. Thus,

the

court addressing the probity of the condition of a foreign

substance

to demonstrate how long the substance had been present stated:

In some jurisdictions the courts permit juries to speculate

upon how long a foreign substance had been on the floor or

how it got there. Such decisions are in the minority. In these

minority decisions a description of the substance as"withered", "old looking," or "grimy," has been held sufficient to

allow the jury to infer that the substance had been on the

floor a sufficient length of time to require the defendant in

the exercise of reasonable care to have known of its presence. These decisions represent a liberal expansion of the

doctrine of "constructive notice" in the law of negligence

.... [M]ost jurisdictions do not follow this view. We

reject

it.

Id. at 313-314 (internal citation omitted).

Relying on Furr's Inc. v. Bolton, 333 S.W.2d 688 (Tx. Civ. App.

1960), Prindes urges the court to restrict the Berry rule to

non-liquid

substances. In Bolton the plaintiff slipped on grape juice while

shopping for groceries, plaintiff testified that the grape juice puddle

was

dried around the edges, and based on her past experience working in

a grocery store, generally, grape juice took 30 minutes to an hour

to

dry. While agreeing with the general rule that the withering,

blackening or deterioration of an article is insufficient to determine how

long

the article has been on the floor, the court established an

exception

when rather than an article, i.e. banana or celery, the situation

involved a liquid.

The court stated:
We think that, here, there can be a proper inference, based

upon the testimony referenced above -- that the juice had

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been there long enough so that the store keeper should have

known about it. The very nature of liquids such as these is

such that it would not have dried around the edges and then

fallen to the floor and presented the same appearance as an

object such as a banana or grape could do. The grape or

banana, or other such, may well have withered and blackened before it got on the floor, but we do not believe that

juice could dry around its edges and be transmitted to the

floor in the same condition.

Id. at 689.

Prindes argues that the district court read the Berry rule too

broadly

because the Berry case did not involve a liquid. Thus, Prindes

argues

that Berry does not prohibit using the condition of a liquid, i.e.

dried,

to demonstrate how long the substance had been present.

We need not address whether the Berry rule applies to both nonliquid and liquid substances because the difficulty with the

instant

case is that no one testified about the condition of the liquid at

the

time that Prindes fell. Prindes herself admitted that she did not

see the

puddle before she slipped. Other testimony offered by her son,

David

and his fiancee, Fagan was based on their observations of the

liquid

some 30 minutes after Prindes fell. Thirty minutes after Prindes'

fall,

both Prindes and her son testified that the liquid had begun to dry

around the edges.

As the district court recognized, Prindes had been writhing in pain

for some thirty minutes before anyone thought to examine the liquid

substance. During the preceding 30 minutes, the liquid could have

begun to dry. Thus, unlike in Bolton, where the plaintiff observed

the

liquid immediately or shortly after her fall, no such testimony

exists

in the present record. Hence, even if the condition of the liquid

could

be used to demonstrate the period of time the liquid had been on

the

floor, Prindes's failure to offer any evidence showing the

condition

of the liquid at the time of fall, vitiates against a finding of

constructive knowledge on Winn-Dixie's part.
As for Prindes' second point, the district court relying on Gauldin

v. Winn-Dixie, 370 F.2d 167 (4th Cir. 1996) (applying Virginia

law),

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stated that "the fact that there were employees in the area of the

dangerous substance cannot impute knowledge of the substance to the

defendant." Thus, the court held that "[b]ecause Prindes is unable

to

produce any evidence that would imply the defendant had actual or

constructive knowledge of the dangerous substance that caused her

fall," summary judgment in favor of Winn-Dixie was appropriate.

Prindes maintains that the district court's reliance on Gauldin was

misplaced. In Gauldin, the court refused to impute constructive

notice

to the defendant based on the fact that some of the defendant's

employees were within eight to ten feet of the spot where the

plaintiff

fell. Gauldin, 370 F.2d at 170.4 The court stated:

In the instant case there are no such facts to support such a

[constructive notice] finding. To permit the jury to conclude

that [defendant's employee], who was engaged in his duties

eight to ten feet from the point of the accident, should have

been on constant alert for a radish on the floor of the aisle

which he had so recently swept and to the point of neglecting his duty to tend the display counters, would . .. make

the defendant an insurer of the safety of its customers.

Id. at 170.

Prindes contends that Gauldin is inapposite because in Gauldin the

employees on the scene were more numerous and nearer to the dangerous condition, and more importantly, the employees were directly

involved in causing the hazard.

Rather, Prindes contends that the instant case is similar to Memco

Stores, Inc. v. Yeatman, 348 S.E.2d 228, (Va. 1986). In Memco

Stores, the plaintiff sustained injuries when she slipped on a leaf

from

a peperomia plant, and fell sustaining injuries. The plaintiff sued

Memco Stores, and the jury returned a verdict in her favor finding

the

store had constructive knowledge of the leaf's presence. On appeal,

the Virginia Supreme Court stated that constructive notice may be

established "[i]f an ordinarily prudent person, given the facts and

cir-

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4 In Gauldin, the plaintiff slipped on a radish located in an aisle

at a

Winn-Dixie store.

8
cumstances Memco knew or should have known, could have foreseen

the risk of danger resulting from such circumstances, Memco had a

duty to exercise reasonable care to avoid the genesis of the

danger."

In affirming the district court's decision to not set aside the

verdict,

the court held:

the jury could have found that Memco, a merchandiser of

peperomia plants, should have known that a change in location, temperature, and light would cause such a succulent

plant to shed moist leaves; that Memco positions the plant

on the furniture display in such a manner that the leaves

could and did fall in the aisle; that Memco should have foreseen that this could create a risk of harm to customers using

the aisle; that Memco violated its duty to have its premises

in reasonably safe condition; and, consequently, that Memco

was guilty of negligence which was the proximate cause of

the injuries Mrs. Yeatman suffered.

Id. at 231.

Prindes argues that like Memco Stores, a fact finder in the instant

case could conclude that "Winn-Dixie and its employees should have

foreseen the risks of restocking the canned fruit section and

undertaken to police the area to ensure that the premises remained

in

reasonably safe condition, either by posting warning signs or

policing

the restocking process more vigorously." Appellant's Brief, at 13.

We disagree. All Prindes can arguably demonstrate is that the stock

boys were in the aisle at the time that Prindes fell. The stock

boys'

presence does not demonstrate in any fashion, except for pure

speculation, that the stock boys had knowledge of the liquid substance,

and

hence, that knowledge could be imputed to Winn-Dixie. Moreover, in

Memco Stores, the employees engaged in an affirmative act of moving the plant; Prindes has pointed to no such evidence in the

present

case, thus Memco Stores is readily distinguishable from the case at

hand.

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III.

CONCLUSION

For the reasons expressed above, the judgment of the district court

is

AFFIRMED.5

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5 Winn-Dixie also argues, alternatively, that Prindes was

contributorily

negligent. In light of our conclusion that no negligence has been

proven,

no negligence exists to which Prindes could be shown to have been

contributorily negligent.

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