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Masoero v. Food Lion, LLC & Delhaize American, LLC
4:12CV128, 2013 WL 1192040, U.S. District Court, New Port News, Eastern District of Virginia, (March 21, 2013)

by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (

Defendants Food Lion, LLC and Delhaize American, LLC (jointly, “Defendants”) filed a motion for summary judgment in a slip and fall case on the basis that Plaintiff had no admissible evidence to support the allegation of an unsafe condition.

Plaintiff Celeste Masoero entered a Food Lion store on July 11, 2011, and headed to the flower case, which was 20-25 feet inside the store entrance. A 4’x 6’ rubber mat had been placed in front of the flower case. Plaintiff alleged that, as she was in mid-stride walking to the flower case, she fell suffering severe injuries. Plaintiff alleged the rubber mat was folded over, creating an unsafe condition. Plaintiff acknowledged that the mat would have been readily visible if she had looked at it, but conceded that she had not looked at the mat prior to her fall, because her "focus was to go to the flower bin and get flowers out.” Other than the allegations in the complaint and interrogatory answers, there was no other evidence that the mat was folded over. Defendants filed a motion for summary judgment alleging there was insufficient evidence of an unsafe condition.

The Court for the U.S. District Court for the Eastern District of Virginia, first noted that under Virginia law “a store owner owes its customers a duty to exercise ordinary care to correct or warn of dangerous conditions on the premises of which it knows or should know." In order to “establish a prima facie case of negligence, Plaintiff must demonstrate that: (1) Defendants owed Plaintiff a duty of care; (2) the floor mat by the flower case constituted an unsafe condition; (3) the unsafe condition was the proximate cause of Plaintiff’s fall; (4) Defendants had actual or constructive notice of the alleged unsafe condition, and failed to warn customers or correct the defect within a reasonable period of time; and (5) Plaintiff suffered damages as a result of Defendants' breach.” The Court then observed that a rubber mat is not, in itself, an unsafe condition, and the Plaintiff had clearly stated in her deposition that she did not look at the mat prior to her fall, and did not see the mat folded over after her fall. The allegation that the mat was folded over was based on mere supposition, inadmissible and insufficient to defeat summary judgment. The Court granted the motion for summary judgment, noting that “Plaintiff will also be unable to establish that Defendants had actual or constructive notice of the alleged unsafe condition—i.e., the folded-over floor mat. Plaintiff cannot say that the floor mat was in a flipped-up position, much less explain how it came to be in that position, or for how long it was in the position prior to the fall.”