UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AMANDA R. RODGERS,
Plaintiff-Appellee,

v.                                                                   No. 95-2815

FOOD LION, INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CA-95-214)

Argued: May 7, 1996

Decided: November 22, 1996

Before RUSSELL and MICHAEL, Circuit Judges, and NORTON,
United States District Judge for the District of South Carolina,
sitting by designation.

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Reversed and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Lisa Ann Bertini, MCGUIRE, WOODS, BATTLE &
BOOTHE, L.L.P., Norfolk, Virginia, for Appellant. Melvin J. Radin,
Norfolk, Virginia, for Appellee. ON BRIEF: Robert W. McFarland,
MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Norfolk, Vir-
ginia; Charles G. Meyer, III, MCGUIRE, WOODS, BATTLE &
BOOTHE, L.L.P., Richmond, Virginia, for Appellant.

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Unpublished opinions are not binding precedent in this circuit.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:

Amanda R. Rodgers injured herself when she slipped in a puddle
of water while shopping at a store owned by Food Lion Inc. ("Food
Lion"). A jury found Food Lion liable and awarded Rodgers
$31,205.62 in damages. Food Lion appeals the district court's award
and denial of Food Lion's motion for a directed verdict. We hold the
district court erred in denying Food Lion's motions for a directed ver-
dict, and reverse and vacate the district court's judgment.

I.

While shopping at a Food Lion store, Rodgers slipped in a puddle
of water, which she contends had pooled in the vicinity of a produce
display counter containing crushed ice. While she neither saw nor was
aware of the water before she slipped, she speculated that the water
resulted from ice chips dropping to the floor and melting when pro-
duce was removed from the display. Jack Mills, an assistant manager
who was on duty when Rodgers fell, testified that on previous occa-
sions he had seen crushed ice fall on the floor outside the display
case, but that it was usually mopped up before it melted. He further
testified that he saw a store employee spot-mop the floor beside the
display counter approximately one-half hour before Rodgers' fall.

No store employee testified to having seen crushed ice fall from the
display counter to the floor on the evening of Rodgers' mishap. But
Billy Smith, a grocery clerk who was not on duty the evening of Rod-
gers' fall, testified that he had previously seen crushed ice fall to the
floor beside the display counter as customers removed melons or
other items from the display counter.

Rodgers filed a personal injury action in the Circuit Court for the
City of Suffolk, Virginia. Food Lion removed the case to the United

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States District Court for the Eastern District of Virginia, which con-
ducted a jury trial. At the conclusion of Rodgers' case, Food Lion
moved for judgment as a matter of law under Rule 50 of the Federal
Rules of Civil Procedure. The district court denied the motion. At the
conclusion of Food Lion's evidence, Food Lion renewed its motion
for a directed verdict. Again, the district court denied Food Lion's
motion.

The jury returned a verdict for Rodgers in the amount of
$31,205.62, plus interest. Food Lion moved to set aside the verdict.
The district court denied its motion. Food Lion appealed, arguing that
it did not have actual or constructive notice of the dangerous condi-
tion causing Rodgers to slip and fall.

II.

In Virginia, the standard of care applicable to slip-and-fall cases is
well-settled:

          The [store owner] owe[s] 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 have 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].

Colonial Stores, Inc. v. Pulley, 125 S.E.2d 188, 190 (1962). Under
this standard of care, the plaintiff need not prove that the defendant
had actual notice of a hazardous object on its floor in time to remove
it; it is sufficient for the plaintiff to prove constructive notice. Memco
Stores, Inc. v. Yeatman, 348 S.E.2d 228, 231 (1986).

          If an ordinarily prudent person, given the facts and circum-
          stances [the defendant] knew or should have known, could
          have foreseen the risk of danger resulting from such circum-

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          stances, the [defendant] had a duty to exercise reasonable
          care to avoid the genesis of the danger.

Id.

In applying this standard to the facts before us, we find that Winn-
Dixie Stores, Inc. v. Parker, 396 S.E.2d 649 (Va. 1990), directs our
legal determination. In Winn-Dixie, the plaintiff slipped on a snap
bean on the floor in the produce section of the store. Nobody saw or
knew how the snap bean got onto the floor. Furthermore, a store
employee testified that he had dry-mopped the floor shortly before the
accident. The Supreme Court of Virginia held that the store was not
liable. The court explained:

          Nothing in the record even suggests that anyone connected
          with Winn-Dixie placed the bean on the floor, and it is not
          "obvious" from any evidence in the case that[the employee]
          missed the bean when he mopped through the produce sec-
          tion. Nor could the jury have inferred that [the employee]
          must have missed the bean simply because it was present on
          the floor when [the plaintiff] fell. To countenance such an
          inference would ignore the likelihood that the bean found its
          way to the spot where [the plaintiff] fell as the result of
          some action taken by another customer after [the employee]
          finished mopping the produce section.

Id. at 651.*
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*In Winn-Dixie, the Supreme Court of Virginia also eliminated the
"method of display" theory of proving constructive knowledge in a slip-
and-fall case. In Thomason v. Great Atlantic & Pacific Tea Co., 413 F.2d
51, 52 (4th Cir. 1969), we held that a plaintiff need not establish pre-
cisely how items of food got onto a store floor. Instead, we concluded
that it is enough to show that the store's method of display made it likely
that the object would fall on the floor. Under our holding, a store is liable
if "it is reasonably foreseeable that a dangerous condition is created by,
or may arise from, the means use to exhibit commodities for sale." Id.
The Supreme Court of Virginia expressly overruled Thomason. Winn-
Dixie, 396 S.E.2d at 651 n.3.

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Rodgers' case is indistinguishable from Winn-Dixie. The record
lacks any indication that Food Lion personnel placed the crushed ice
on the floor. And there is nothing in the record to suggest that when
the employee spot-mopped the floor around the display one half hour
before Rodgers' fall, he missed the crushed ice. The record reflects
Rodgers' failure to meet her burden of establishing that Food Lion
had either actual or constructive notice of the pooled water and failed
to remove it. Like the snap bean in Winn-Dixie , the puddle could have
been the result of some action taken by another customer after the
employee finished mopping the produce section.

Because Rodgers failed to show that Food Lion placed the foreign
substance on the floor or knew, or in the exercise of reasonable care
should have known, of its presence and failed to remove it, Food Lion
was entitled to a directed verdict. For the foregoing reasons the judg-
ment appealed from is reversed, the jury award vacated, and judgment
entered favoring Food Lion, Inc.

REVERSED AND REMANDED

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