VIRIGINIA: Distracting Display is No Excuse for Fall

In the recent case of James Allen Cameron, Administrator of the Estate of Arlene C. Cameron v. K Mart Corporation, Judge Norman K. Moon of the United States District Court for the Western District of Virginia, Charlottesville division, granted summary judgment in favor of the Defendant in a case in which the Plaintiff fell over a long, flat box containing a disassembled armoire.  The Defendant, K-Mart, moved for summary judgment on the basis of the Plaintiff’s contributory negligence as a matter of law for not seeing, and then tripping over, the box on the floor.  The Plaintiff contended that she was distracted by sales displays and therefore was not guilty of contributory negligence in failing to see the box that she tripped over.  Judge Moon observed that a property owner has no duty to warn invitees “of an unsafe condition which is open and obvious to a reasonable person exercising ordinary care for his own safety.”  Based on the photographs of the scene taken on the day of the accident, Judge Moon concluded that the box that the Plaintiff fell over was an open and obvious condition.  In finding the Plaintiff guilty of contributory negligence as a matter of law, Judge Moon observed that “Virginia law does not recognize distraction by shopping displays as an excuse for failing to exercise proper care in placing one’s feet.”

This case is an interesting reaffirmation of the principal that Virginia law does not recognize distraction by shopping displays as an excuse for the Plaintiff’s failure to watch where he is walking.  This case is also interesting because of the importance that the scene photographs taken on the day of the accident played in the judge’s decision.  Without those clear photographs taken on the day of the accident and showing exactly what the Plaintiff fell over, the judge may have had more difficulty in reaching the conclusion that the Plaintiff should have seen and avoided the alleged hazard.