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U.S. District Court for the Western District of Virginia finds that plaintiff cannot recover for personal injuries sustained during a slip and fall at Virginia resort

Ellen B. Thomas v. Omni Hotels Management Corp.
Civil Action No. 5:15-cv-00086 (March 7, 2017) United States District Court for the Western District of Virginia

by Julia L. Houp, Law Clerk
Semmes, Bowen & Semmes (

Available at:

On November 12, 2013, the plaintiff and her husband, Carl Thomas, Sr., arrived at the Omni Homestead Resort (the Homestead) in Hot Springs, Virginia. When they arrived, the weather was windy and sunny, with temperatures in the 40s or 50s. The next morning, around 8:45 a.m., the Thomas’ walked into the town of Hot Springs for breakfast. The temperatures were below freezing, but there was no indication that there had been any rain.

On their way out of the resort, the Thomas’ walked by a fountain, where the plaintiff would eventually fall. Omni employees described the fountain as a “bubbling type” fountain, where water fills the upper bowl from the fountain, and then flows from the upper bowl into the reservoir at the fountain’s base. Around the fountain was a walkway made out of cement-like material. The walkway and fountain area were partially covered by a roof, and partially bordered a spa building, with a gate along the rest of the Homestead property. When opening the spa, employees would also visually inspect the fountain area. On this particular morning, there were icicles hanging from the upper bowl of the fountain, but neither the plaintiff nor her husband noticed ice on the walkway.

After returning from breakfast around 9:30 a.m., the Thomas’ again walked by the fountain. However, this time the plaintiff’s feet “flew out from under [her]” and she fell, landing with her right side on the ledge of the fountain and her right arm in the fountain. The plaintiff stated that she fell on ice, although the Thomas’ never saw ice around the area in which the plaintiff fell. Approximately 30 minutes later, around 10:00 a.m., Omni employees who went to inspect the fountain observed clear ice on a portion of the walkway around the fountain.

The plaintiff sued Omni, claiming that Omni was negligent in failing to maintain the fountain and failing to remove ice from the surrounding area. Omni moved for summary judgment, arguing that the plaintiff failed to establish that Omni had notice of dangerous conditions.

“Summary judgment is appropriate only if taking the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party, ‘no material facts are disputed and the moving party is entitled to judgment as a matter of law.’” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011).

Under Virginia law, “[a]ll negligence causes of action are based on allegations that a person having a duty of care to another person violated that duty of care through actions that were the proximate cause of injury to the other person.” Jarmak v. Ramos, 497 F. App’x 289, 291 (4th Cir. 2012). While Virginia law recognizes a special relationship between innkeepers and guests, this special relationship does not make an innkeeper the insurer of a guest’s safety. Taboada v. Daly Seven, Inc., 626 S.E.2d 428, 432–33 (Va. 2006). In order to recover, an injured guest “must show that the owner had knowledge, actual or constructive, that a defect existed and that such defect created an unsafe condition.” Roll ‘R’ Way Rinks, Inc. v. Smith, 237 S.E.2d 157, 161 (Va. 1977).

Constructive notice can be shown “by evidence that the defect was noticeable and had existed for a sufficient length of time to charge its possessor with notice of its [unsafe] condition.” Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 454 (4th Cir. 2004). Omni argued that the plaintiff had no evidence that Omni had constructive knowledge of icy conditions around the fountain. The plaintiff argued that Omni’s inspection of the fountain was inadequate. However, Omni can only be liable if it had constructive notice of a dangerous condition that an adequate inspection would have revealed. Jarmak, 497 497 F. App’x at 294.

The United States District Court for the Western District of Virginia found that the plaintiff failed to establish constructive notice because she did not show that the ice around the fountain existed for an ample amount of time. While the evidence does show that the conditions necessary for ice to form had existed, the evidence did not show when the specific ice on which she fell formed. Even if the ice came from water blown by the fountain, this could have easily happened briefly before the plaintiff slipped. In fact, the evidence that the plaintiff and her husband walked by the same fountain merely 45 minutes prior—without slipping or noticing ice—supports this very conclusion. Given that a jury could reach this same conclusion, the court held that the plaintiff’s theory cannot survive summary judgment.

The plaintiff also argued that because water takes time to freeze, a jury could infer that the ice she slipped on had been there for a substantial amount of time. However, the plaintiff offers no evidence or authority for this position. Moreover, the plaintiff did not show that the ice at issue would have taken a significant amount of time to form. There was no evidence regarding the size or thickness of the ice that caused the plaintiff’s fall. Because the plaintiff did not show that the ice existed for long enough to charge Omni with constructive notice, her claim must fail.

Finally, the plaintiff argued that Omni created the dangerous condition through its own affirmative conduct. When a premises owner affirmatively creates a dangerous condition, the courts apply a “foreseeability standard,” which imputes notice on the owner of reasonably foreseeable dangers resulting from such conduct. Again, the court disagreed. The court found that the plaintiff did not clearly establish Omni’s affirmative conduct—whether it was placing a water fountain in this particular area, failing to turn the water off when it was cold outside, or continuing to run the water when it was cold outside.

Additionally, the court held that even if Omni engaged in affirmative conduct, the plaintiff did not present any evidence that ice on the walkway was foreseeable. There was no evidence that this fountain could cause water or ice to build up on the surrounding walkway. The plaintiff failed to produce evidence demonstrating the wind speeds necessary to blow water from the fountain, or that the fountain was exposed to sufficiently strong winds.1 Even if the winds were as strong as plaintiff suggested, the court did not find that this was foreseeable because Omni employees testified that they had never received complaints of ice or water surrounding the fountain.

For these reasons, the court found that the plaintiff’s claims cannot survive and granted Omni’s motion for summary judgment.


1The plaintiff submitted certified weather data showing that it was consistently windy and below freezing from the evening of November 12, 2013, until the time when the plaintiff tripped. Because the weather data was collected at an airport roughly 1,500 feet above the Homestead in elevation, and because the fountain area was sheltered, the court found that these records were irrelevant to the weather conditions at the site of the plaintiff’s fall and did not consider them.