Deborah B. Adams v. Kroger Limited Partnership I, d/b/a K029 Kroger East/Mid-Atlantic

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1499
DEBORAH B. ADAMS,
Plaintiff – Appellant,
v.
KROGER LIMITED PARTNERSHIP I, d/b/a K029 Kroger
East/Mid−Atlantic; REPUBLIC NATIONAL DISTRIBUTING COMPANY,
LLC; CHARLIE GATTUSO,
Defendants – Appellees,
and
AUBURN REALTY, LLC,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:11-cv-00141-JRS)
Submitted: April 24, 2013 Decided: June 12, 2013
Before TRAXLER, Chief Judge, THACKER, Circuit Judge, and Ellen
L. HOLLANDER, United States District Judge for the District of
Maryland, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
Garrick A. Sevilla, WILLIAMS MULLEN, Raleigh, North Carolina,
for Appellant. Cathleen Kailani Memmer, Victor S. Skaff, III,

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GUYNN, MEMMER & DILLON, P.C., Salem, Virginia, for Appellee
Kroger Limited Partnership I. Alan R. Siciliano, DECARO, DORAN,
SICILIANO, GALLAGHER & DEBLASIS, LLP, Fairfax, Virginia, for
Appellee Republic National Distributing Company, LLC.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Deborah Adams (“Adams”) sustained injuries after slipping
in a Virginia grocery store in an area where a wine vendor had
spilled wine. She sued the wine vendor and the grocery store,
alleging negligence. After Adams put on her evidence at trial,
the district court granted the defendants’ motion for judgment
as a matter of law. Adams appeals. For the reasons set forth
below, we vacate the judgment of the district court and remand.
I.
Gary Judd (“Judd”) is a sales representative for Republic
National Distributing Company, LLC (“Republic”), which supplies
wine to grocery stores owned and operated by Kroger Limited
Partnership I (“Kroger”). On August 18, 2009, Judd was
restocking wine bottles on wine shelves in a Kroger grocery
store when he accidentally dropped a bottle of wine, spilling
its contents in an aisle of the grocery store. Judd did several
things to deal with the spill. First, he blocked off one side
of the spill area. Then he retrieved a broom and dustpan,
picked up the larger pieces of glass by hand, and swept the area
with the broom. Subsequently, he mopped the area and put up a
yellow warning cone. The cone was approximately two-and-a-half
feet tall and two feet wide.
Nearly six minutes after Judd finished, Adams entered the
wine aisle. After browsing the wine selection at the store, she

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slipped and fell in the spill area. Adams sustained injuries to
her knee and head, but the most significant harm was done to the
retina in her left eye. As a result of this damage, she
underwent four to five surgeries on her left eye, incurred
approximately $30,000 in medical bills, and is legally blind in
her left eye.
Adams filed a lawsuit in state court against Kroger,
alleging only negligence and seeking one million dollars in
damages. Kroger removed the action to federal court, Adams
amended her complaint to include Republic as a defendant, and
Kroger moved for summary judgment, which the district court
denied. A trial proceeded, and after the close of Adams’
evidence, Kroger and Republic moved for judgment as a matter of
law. The district court granted the motion, and this appeal
followed.
II.
We review the grant of a motion for judgment as a matter of
law de novo, viewing the evidence in the light most favorable to
Adams and drawing all reasonable inferences in her favor. See
Anderson v. G.D.C., Inc., 281 F.3d 452, 457 (4th Cir. 2002).
“Judgment as a matter of law is proper only if there can be but
one reasonable conclusion as to the verdict.” Id. (internal
quotation marks omitted). “[I]f reasonable minds could differ,
we must reverse.” A Helping Hand, LLC v. Balt. Cnty., Md., 515

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F.3d 356, 365 (4th Cir. 2008). In making this evaluation, we
“may not make credibility determinations or weigh the evidence,”
and we “must disregard all evidence favorable to the moving
party that the jury is not required to believe.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000).
III.
To prove that Republic was negligent, Adams must establish
that Judd owed her a duty to sufficiently and properly clean up
the spilled wine and that his breach of that duty resulted in
her injuries. See Kellermann v. McDonough, 684 S.E.2d 786, 790
(Va. 2009). There is no dispute that Republic owed Adams the
duty of reasonable care in cleaning up the spill. The district
court, however, concluded that Adams did not provide any
evidence from which a jury could conclude that Republic breached
this duty:
When [Judd] accidentally dropped the bottle, he
secured the area with boxes. He swept up the broken
glass, obtained a mop and bucket and mopped the floor.
Afterwards, he put a yellow caution cone in the area.
All of these beg the question: what else was Judd
supposed to do given what he had done? There is no
evidence in the record, expert or otherwise, that
establishes that Judd breached his duty of care.
J.A. 211. The court subsequently took the case away from the
jury by granting the defendants’ motion, noting that it would
“not allow the jury to speculate on what . . . might have been.”
J.A. 212.

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Adams argues on appeal that the jury could have found that
Republic breached its duty in the following ways: mopping an
area much larger than the spill area, failing to dry the area
after mopping, using a slippery hand-sanitizer-like substance to
clean the floor, using only a cone to mark the area, and placing
the cone in an unreasonable place. In response to these
arguments, the defendants rely on the district court’s statement
that Adams presented no evidence from which the jury could have
found a breach. But this is simply not the case. For example,
Adams presented evidence showing that Judd used a hand-
sanitizer-like product to clean the floor, and the jury could
have found that to be unreasonable.1 Likewise, there was
evidence that Judd did not dry the floor after cleaning the
spill, and the jury could have found that Judd’s failure to dry
the floor was unreasonable. Contrary to the district court’s
suggestion, if a jury were to make these findings, they would
not be mere “speculation and conjecture.” Doe v. Houser, 194
S.E.2d 754, 755 (Va. 1973). Rather they would be based on
evidence in the record. See, e.g., J.A. 91 (Kroger store
1 We acknowledge that Judd contends he cleaned the spill
area using only water. But we reemphasize that our review at
this stage in the litigation requires us to view the evidence in
a light most favorable to Adams and draw all reasonable
inferences in her favor. Accordingly, for purposes of this
appeal, we must accept the testimony that Judd used a hand-
sanitizer-like substance to clean the spill area.

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manager testifying that important part of cleaning up a spill is
“to get the floor as dry as possible”); J.A. 115 (Adams
testifying that substance on floor “felt like . . . hand
sanitizer”).
“Ordinarily, negligence is a jury issue.” Artrip v. E.E.
Berry Equip. Co., 397 S.E.2d 821, 823 (Va. 1990). Because there
is evidence in the record from which a reasonable jury could
find in favor of Adams, the district court erred in weighing the
evidence and in granting the defendants’ motion. Accordingly,
we vacate the judgment of the district court as to Republic.
IV.
Having determined that a reasonable jury could have found
that Republic breached a duty to Adams, we turn to Kroger’s
potential liability. “Under Virginia law . . . an owner . . .
of real property owes to an invitee the duty to exercise
reasonable care to make the premises safe.” Gauldin v. Va.
Winn-Dixie, Inc., 370 F.2d 167, 169 (4th Cir. 1966). To find
Kroger independently liable, Adams must establish that Kroger
“had actual or constructive notice” of the dangerous condition.
Ashby v. Faison & Assocs., Inc., 440 S.E.2d 603, 605 (Va. 1994).
Adams does not contend that Kroger had actual notice, so we are
only concerned with constructive notice. Under Virginia law,
“constructive knowledge or notice . . . may be shown by evidence
that the defect was noticeable and had existed for a sufficient

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length of time to charge its possessor with notice of its
defective condition.” Grim v. Rahe, Inc., 434 S.E.2d 888, 890
(Va. 1993).
The district court did not address whether the condition
was “noticeable,” and there was no evidence that the spill area
was somehow hidden, but Kroger argues nonetheless that Judd’s
efforts in cleaning up the spill made the spill area not
dangerous, such that there was no dangerous condition to be
noticed. We disagree. Deborah Farmer, a Kroger store manager,
testified that if a Kroger employee observes a spill caused by a
vendor, that employee should tell the vendor to “stay with the
spill” while the Kroger employee “get[s] something to clean it
up.” J.A. 76 (internal quotation marks omitted). She further
testified that Kroger does not instruct its vendors on how to
clean up a spill. Accordingly, Judd’s efforts in cleaning up
the spill would not necessarily preclude Kroger from noticing
the spill area as a dangerous condition, and a jury could
reasonably reach that conclusion.
On the issue of whether sufficient time had passed to
charge Kroger with constructive notice, approximately nineteen
minutes elapsed from the time of the spill to the time of the
fall. Because we know the exact amount of time that passed,
this case is distinguishable from other Virginia cases where
plaintiffs have failed to establish negligence because they

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could not establish when the dangerous condition developed.
See, e.g., Grim, 434 S.E.2d at 890. Nevertheless, the district
court concluded that “[t]he unquestionable evidence presented at
trial is that Kroger lacked . . . constructive notice of the
spill which occurred in its store or Judd’s attempt to clean the
spill.” J.A. 208. Adams argues on appeal that the jury, and
not the court, should have determined whether nineteen minutes
was a sufficient amount of time to charge Kroger with
constructive notice of the dangerous condition. We agree. In
this case, video from a Kroger surveillance camera depicted the
spill area for nineteen minutes. In our view, a reasonable jury
could have found constructive notice under these circumstances,
and the court erred in reaching the opposite conclusion.2
2 The defendants argue in the alternative that we should
review Adams’ constructive notice argument for plain error
because she failed to raise it below. Because Adams’
constructive notice argument is arguably encompassed within her
amended complaint and because the district court addressed the
issue, we decline the invitation to treat the issue as
unpreserved. See WMTC, Inc. v. G.A. Braun, Inc., 247 F.3d 114,
116 n.2 (4th Cir. 2001) (“[T]he district court's opinion
discussed this issue at length. Thus it cannot be said that [the
party] failed to preserve” the issue.); H.E. Wolfe Constr. Co.
v. Fersner, 58 F.2d 27, 29 (4th Cir. 1932) (suggesting issue
preserved so long as “passed upon” by district court).

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V.
For the foregoing reasons, we vacate the district court’s
grant of judgment as a matter of law and remand for proceedings
consistent with this order.3
VACATED AND REMANDED
3 Relying on two statements made by the district court,
Adams also argues that the district court erroneously required
her to put on expert evidence about the proper standard of care
for cleaning up a spill. Because we vacate the grant of
judgment as a matter of law and remand the case for different
reasons, we need not address this issue.

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