                                      UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-1424


ELLEN B. THOMAS,

             Plaintiff - Appellant,

      v.

OMNI HOTELS MANAGEMENT CORPORATION,

             Defendant - Appellee.


Appeal from the United States District Court for the Western District of Virginia, at
Harrisonburg. Elizabeth Kay Dillon, District Judge. (5:15-cv-00086-EKD-JCH)


Argued: May 9, 2018                                               Decided: August 2, 2018


Before WILKINSON and NIEMEYER, Circuit Judges, and Richard M. GERGEL,
United States District Judge for the District of South Carolina, sitting by designation.


Affirmed by unpublished opinion. Judge Gergel wrote the opinion in which, Judge
Wilkinson and Niemeyer joined.


ARGUED: Gregory Lee Lyons, LICHTENSTEIN LAW GROUP PLC, Roanoke,
Virginia, for Appellant. Gregory Franklin Holland, SETLIFF & HOLLAND, PC, Glen
Allen, Virginia, for Appellee. ON BRIEF: John E. Lichtenstein, Carrol M. Ching,
Joanna M. Meyer, LICHTENSTEIN LAW GROUP PLC, Roanoke, Virginia; R. Creigh
Deeds, R. CREIGH DEEDS, P.C., Hot Springs, Virginia, for Appellant.


Unpublished opinions are not binding precedent in this circuit.
GERGEL, District Judge:

      In this appeal dealing with premises liability, we consider whether the district

court properly granted Defendant Omni Hotels Management Corporation (“Omni”)

summary judgment of Plaintiff Ellen Thomas’s (“Thomas”) claims arising from personal

injuries sustained when she slipped and fell near a fountain at a hotel owned and

managed by Omni. For the reasons stated below, we affirm the district court’s order.

                                                I.

      On November 12, 2013, Thomas and her husband arrived as guests at the Omni

Homestead Resort (the “hotel”) in Hot Springs, Virginia. J.A. 102. The hotel contained

a decorative water fountain installed in the center of a partially enclosed outdoor

walkway that connected the hotel and its spa building. J.A. 428. The fountain pumped

water up a pedestal to cascade down from a smaller bowl into a larger reservoir. J.A.

358. The drop from the bowl to the reservoir was between thirty-four and forty inches,

and the reservoir was approximately one foot deep and five feet wide. J.A. 27, 411–12,

458, 462–63. The outdoor walkway around the fountain was composed of white cement-

like material. J.A. 359. The walkway and fountain were partially covered by a roof, and

partially surrounded by the spa building and a gate. J.A. 349–50, 395, 412.

      On the morning of November 13, 2013, Thomas and her husband left the hotel

between 8:30 and 8:45 a.m. to walk into town for breakfast. J.A. 108. To exit the hotel,

they walked through the gate, down the outdoor walkway where the fountain was located,

and through the spa building. J.A. 251–52. As they passed the fountain, Thomas and her

husband noticed icicles hanging from it. J.A. 108, 255. They did not notice at that time

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any ice or water at or near the walkway surrounding the fountain. J.A. 116, 270. On

their walk into town, Thomas’s husband observed a sign showing that the temperature

was 22 degrees Fahrenheit. J.A. 252.

      The Thomases returned from breakfast shortly before 9:30 a.m. and retraced their

route through the hotel spa and onto the outdoor walkway where the fountain was

located. J.A. 114–16. Thomas again observed icicles hanging from the fountain as she

approached it. J.A. 115–16. As Thomas walked past the fountain, she slipped and fell.

J.A. 119. Thomas told her husband at that time that she slipped on ice; neither Thomas

nor her husband saw ice on the walkway before her fall. J.A. 124–25, 278. Thomas and

her husband returned to the hotel lobby where an Omni employee arranged to transport

Thomas to the hospital. J.A. 133–34, 280. As a result of the fall, Thomas injured her

right hand and wrist, and fractured a rib. J.A. 473. At about 10:00 a.m., the hotel’s

Director of Loss Prevention inspected the area surrounding the fountain and observed ice

on the walkway where Thomas had fallen. J.A. 407–409.

      Thomas filed suit against Omni in the Bath County Circuit Court, claiming that

Omni was negligent in its inspection and maintenance of the walkway around the

fountain. J.A. 9. Omni removed the case to the United States District Court for the

Western District of Virginia based on diversity jurisdiction.     After completion of

discovery, Omni filed a motion for summary judgment, arguing that Thomas’s

allegations did not create a genuine dispute of material fact of whether Omni had actual

or constructive notice of the walkway’s dangerous condition. J.A. 13–26. The district

court granted summary judgment for Omni, finding that Thomas failed to create a

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genuine dispute of material fact of whether Omni had actual or constructive notice of icy

conditions or water escaping from the fountain at or near the walkway at any time prior to

Thomas’ fall. J.A. 566–76.

                                             II.

       We review the district court’s grant of summary judgment de novo, applying the

same legal standards as the district court and viewing the evidence in the light most

favorable to the nonmoving party. Martin v. Lloyd, 700 F.3d 132, 135 (4th Cir. 2012).

       “All 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.” Steward ex rel. Steward v. Holland

Family Props., LLC, 726 S.E.2d 251, 254 (Va. 2012). Virginia law imposes a special

duty of care on innkeepers, which requires them to “use the utmost care and diligence of

very cautious persons” and holds them “liable for the slightest negligence which human

care, skill, and foresight could have foreseen and guarded against.” Norfolk & W. R. Co.

v. Birchfield, 54 S.E. 879, 883 (Va. 1906) (internal quotation marks omitted).

       An innkeeper under Virginia law is not, however, strictly liable for any injury to a

guest on its premises. In order to recover, a plaintiff must show that the innkeeper 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);

see also Taboada v. Daly Seven, Inc., 626 S.E.2d 428, 435 (Va. 2006) (reversing lower

court to find innkeeper liable for third party’s intentional assault on guest in hotel parking

lot where police previously notified hotel that guests were at “specific imminent harm”).

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       A plaintiff can demonstrate the presence of an innkeeper’s constructive knowledge

in a number of ways. Constructive knowledge “may 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) (alteration in original) (internal quotation marks omitted).

Or constructive knowledge may be shown where the innkeeper’s own actions created a

reasonably foreseeable dangerous condition. See, e.g., Harrison v. Kroger Co., 737 F.

Supp. 2d 554, 557 (W.D. Va. 2010) (granting summary judgment for Kroger grocery

store where customer who slipped and fell on liquid “offer[ed] no evidence to establish

that any affirmative act by Kroger caused” the liquid to form).

                                           III.

                                            A.

       The record evidence did not demonstrate any prior actual knowledge by Omni of

the formation of icy conditions or the presence of escaping water accumulating on the

walkway near the fountain. To the contrary, the uncontested record evidence was that

Omni had not previously received any reports or observed water escaping from the

fountain or ice forming on the walkway near the fountain. J.A. 428, 438, 441. Since

there is no evidence of prior actual knowledge by Omni of water forming on the walkway

near the fountain, Plaintiff seeks to infer notice of dangerousness from certain climate

conditions existing on the day of the fall. The evidence shows that the temperature that

morning had fallen to 22 degrees Fahrenheit and that icicles had formed on the fountain

itself. J.A. 252, 259. These facts certainly demonstrate the conditions upon which ice

                                            5
could form generally, but they are not sufficient to impose actual or constructive notice to

Omni that ice would form on the walkway beside the fountain that morning when neither

ice nor standing or escaping water had previously been observed in that location.

       Plaintiff next contends that because ice takes time to form, a reasonable jury could

conclude that the ice Thomas slipped on existed for a sufficient period that it would have

been discovered by Omni upon reasonable investigation. J.A. 572–73. This argument

fails because, again, Virginia courts apply ordinary constructive notice principles to the

presence of a dangerous condition, such as ice, to require evidence of how long that

specific hazard was present. See, e.g., Adkinson v. Frizzell, No. 1:11CV00098, 2012 WL

4127617, at *3–4 (W.D. Va. Aug. 14, 2012) (granting summary judgment for premises

owner where plaintiff was “unable to show when the ice formed” and because he was

“unable to show when a defect occurred on the premises, he has not made a prima facie

case”) (emphasis in original).     There must be record evidence to show when the

dangerous condition first arose because the “[a]ppearence of an item cannot be used to

infer that it had been on the floor long enough” to create constructive notice. Powers v.

Wal-Mart Stores, Inc., No. CIVA 2:05CV00070, 2006 WL 2868320, at *4 (W.D. Va.

Oct. 5, 2006); see also Colonial Stores Inc. v. Pulley, 125 S.E.2d 188, 190 (Va. 1962).

       The record here contains no evidence indicating when ice may have formed near

Omni’s fountain prior to Thomas’s fall. In the absence of prior notice of a dangerous

condition caused by the fountain and no evidence when the icy condition around the

fountain arose prior to Thomas’ fall, the presence of ice at the time of the fall is not

sufficient to demonstrate that with reasonable diligence Omni staff should have

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discovered the icy condition before Thomas suffered her injury. See, e.g., Winn-Dixie

Stores, Inc. v. Parker, 396 S.E.2d 649, 651 (Va. 1990) (setting aside jury verdict for

plaintiff who slipped on vegetable on supermarket floor because without “any showing of

the length of time [the bean] may have been there” it “is just as logical to assume that it

was placed on the floor an instant before [Parker] struck it as it is to infer that it had been

there long enough that [Winn-Dixie] should, in the exercise of reasonable care, have

known about it”) (internal quotations omitted, alterations in original). As a result, a jury

could reach a conclusion about how and when this ice appeared on the walkway only by

impermissible “speculation and conjecture.” Great Atl. & Pac. Tea Co. v. Berry, 128

S.E.2d 311, 313 (Va. 1962) (rejecting plaintiff’s argument that celery’s discoloration was

evidence it had been on supermarket floor for long enough to impute constructive notice,

because “it is just as probable that it had been there for a short period of time as for a

lengthy period”).

       Thomas asks the court to accept a series of inferences to conclude when the ice

she believes she slipped on escaped from the fountain and formed into ice. Specifically,

Thomas infers that (i) the ice on the walkway was formed by water blown out of the

fountain by the wind, because conditions were windy as measured at the local airport at a

significantly higher elevation, (ii) temperatures dropped below freezing the night before,

and the fountain was running in the freezing temperature, (iii) ice takes time to form and

this ice appeared thick approximately thirty minutes after Thomas’s fall, and therefore

(iv) Omni would have discovered the ice before the fall had it looked. Appellant’s Br. at

20. Here, the ruling from the District Court for the Eastern District of Virginia in

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Jefferson v. Regal Cinemas, C.A. No. 3:10CV166, 2010 WL 3894127 at *4 (E.D. Va.

2010), is instructive. In Jefferson, the Plaintiff slipped on a popcorn bag inside a movie

theater and attempted to establish constructive notice through a chain of inferences:

              Although Jefferson contends that the popcorn bag was on the
              floor for a period of seventeen hours prior
              to Jefferson’s injury, the record does not support this
              assertion. Jefferson argues that no one entered Auditorium 15
              between the last showing on December 15, 2010 and the 2:35
              p.m. showing of Hitman on December 16, 2010 aside
              from Jefferson and his family. Because Jefferson and his
              family did not purchase any popcorn, Jefferson argues that
              the popcorn bag must have been left by a customer the
              evening before. Jefferson further contends that because six
              inspections of the theater should have been performed
              according to routine procedure and all six inspections missed
              the popcorn bag, Regal was on constructive notice of the
              defective condition. Jefferson also wants the Court to infer
              that he and his family did not see the popcorn bag on the floor
              in the corridor upon their entrance into Auditorium 15
              because the lights were dim and the bag blended into the
              carpet pattern.

The Jefferson court found that these “assertions of ‘material facts’ constitute inferences”

insufficient to demonstrate how long the hazard existed. Id. at *5. Here, Thomas’

argument falls short because, as in Jefferson, “genuine issues of material fact cannot be

based on mere speculation or the building of one inference upon another.” Id. (quoting

Barwick v. Celotex Corp., 736 F.2d 946, 963 (4th Cir. 1984)).

       Last, Plaintiff’s argument that Omni failed to inspect the walkway is unavailing

without having demonstrated that this ice existed long enough that Omni would have

discovered it prior to Thomas’s fall. See, e.g., Moran Towing & Transp. Co., 409 F.2d

961, 963 (4th Cir. 1969) (noting that “a finding of negligence in failing to send an


                                             8
inspector . . . is dangling, for it is unaccompanied by any finding that such an inspector,

exercising due care, should, or even might, have found any deficiency which had any

proximate relation” to the defect); City of Richmond v. Hood Rubber Prods. Co., 190 S.E.

95, 100 (Va. 1937) (noting that the crucial inquiry for constructive notice is “the

susceptibility to discovery and the length of time the defect may exist that would be

sufficient to charge . . . notice”).

                                               B.

       Plaintiff separately contends that Omni was constructively aware of the slippery

walkway because Omni created the dangerous condition by positioning the fountain on

the white cement-like walkway and running the water in sub-freezing temperatures.

Appellant’s Br. at 28-33. When a premises owner affirmatively creates a dangerous

condition, Virginia courts apply a foreseeability standard to charge the owner with

constructive knowledge of a reasonably foreseeable hazard caused by its own conduct.

See, e.g., Austin v. Shoney’s, Inc., 486 S.E.2d 285, 288 (Va. 1997) (premises owner is

“charged with constructive knowledge of the risk because it had a duty to exercise

reasonable care to avoid the genesis of the danger” it created).

       Here, as the district court noted, there is no reliable evidence in the record to show

what caused the icy conditions near the fountain walkway on the morning Thomas fell.

J.A. 573–75. For example, there are no facts to support a finding that by placing this

fountain in a partially covered and enclosed outdoor area, or by failing to turn the water

off in cold temperatures, Omni caused water or ice to escape from the fountain and

accumulate on the surrounding walkway at the time of Thomas’s fall.

                                             9
       It is similarly unclear from the record how ice on the walkway was foreseeable to

Omni. The uncontested testimony of Omni employees is that they had never observed

the fountain causing splashes, condensation, or moisture on the surrounding walkway,

nor received complaints of water or ice on the walkway. J.A. 371, 378, 412, 438, 441; cf.

O’Brien v. Everfast, Inc., 491 S.E.2d 712, 715 (Va. 1997) (danger foreseeable when

heavy bolt of fabric leaning against a table, in plain view of employee and in violation of

store’s safety policy, fell and injured customer).

       The Supreme Court of Virginia’s ruling in Memco Stores, Inc. v. Yeatman is

instructive on both affirmative conduct and foreseeability. 348 S.E.2d 228 (Va. 1986).

There, the court found the evidence presented sufficient to show that the store had

constructive notice of a foreseeable slipping hazard caused by its own affirmative

conduct. By actively moving plants known to shed their leaves when stirred, it was

foreseeable to the store that a slippery leaf could fall to the floor, requiring the store to

use reasonable care to avoid this or to remove the leaf from a customer’s path:

              Memco, a merchandiser of peperomia plants, should have
              known that a change in location, temperature, and light would
              cause such a succulent plant to shed moist leaves; that
              Memco positioned the plant on the furniture display in such a
              manner that the leaves could and did fall in the aisle; that
              Memco should have foreseen that this would create a risk of
              harm to customers using the aisle; that Memco violated its
              duty to have its premises in a reasonably safe condition; and,
              consequently, that Memco was guilty of negligence which
              was the proximate cause of the injuries Mrs. Yeatman
              suffered.




                                             10
Id. at 231. Here, by contrast, the record does not contain evidence that Omni actively

caused the formation of icy conditions on the walking surface for guests, or that this

slipping hazard was foreseeable to Omni.

                                           IV.

      The record evidence does not contain evidence of Omni’s actual or constructive

knowledge of the risk of icy conditions on the walkway adjacent to its fountain or that

Omni’s affirmative conduct caused the creation of a foreseeable hazard. Consequently,

the district court’s grant of summary judgment was appropriate and that judgment is

                                                                           AFFIRMED.




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