                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-1499


DEBORAH B. ADAMS,

                Plaintiff – Appellant,

          v.

KROGER   LIMITED    PARTNERSHIP I,   d/b/a   K029   Kroger
East/Mid−Atlantic; REPUBLIC NATIONAL DISTRIBUTING COMPANY,
LLC; CHARLIE GATTUSO,

                Defendants – Appellees,

          and

AUBURN REALTY, LLC,

                Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:11-cv-00141-JRS)


Submitted:   April 24, 2013                 Decided:   June 12, 2013


Before TRAXLER, Chief Judge, THACKER, Circuit Judge, and Ellen
L. HOLLANDER, United States District Judge for the District of
Maryland, sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


Garrick A. Sevilla, WILLIAMS MULLEN, Raleigh, North Carolina,
for Appellant.  Cathleen Kailani Memmer, Victor S. Skaff, III,
GUYNN, MEMMER & DILLON, P.C., Salem, Virginia, for Appellee
Kroger Limited Partnership I. Alan R. Siciliano, DECARO, DORAN,
SICILIANO, GALLAGHER & DEBLASIS, LLP, Fairfax, Virginia, for
Appellee Republic National Distributing Company, LLC.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Deborah Adams (“Adams”) sustained injuries after slipping

in a Virginia grocery store in an area where a wine vendor had

spilled wine.        She sued the wine vendor and the grocery store,

alleging negligence.       After Adams put on her evidence at trial,

the district court granted the defendants’ motion for judgment

as a matter of law.        Adams appeals.         For the reasons set forth

below, we vacate the judgment of the district court and remand.

                                        I.

       Gary Judd (“Judd”) is a sales representative for Republic

National Distributing Company, LLC (“Republic”), which supplies

wine   to   grocery    stores   owned   and     operated     by    Kroger   Limited

Partnership    I     (“Kroger”).        On    August    18,       2009,   Judd   was

restocking    wine    bottles   on   wine     shelves   in    a    Kroger   grocery

store when he accidentally dropped a bottle of wine, spilling

its contents in an aisle of the grocery store.                    Judd did several

things to deal with the spill.               First, he blocked off one side

of the spill area.          Then he retrieved a broom and dustpan,

picked up the larger pieces of glass by hand, and swept the area

with the broom.        Subsequently, he mopped the area and put up a

yellow warning cone.        The cone was approximately two-and-a-half

feet tall and two feet wide.

       Nearly six minutes after Judd finished, Adams entered the

wine aisle.    After browsing the wine selection at the store, she

                                        3
slipped and fell in the spill area.                        Adams sustained injuries to

her knee and head, but the most significant harm was done to the

retina    in    her    left       eye.      As       a    result       of   this     damage,   she

underwent       four    to       five    surgeries        on     her    left     eye,   incurred

approximately $30,000 in medical bills, and is legally blind in

her left eye.

       Adams       filed     a    lawsuit       in       state    court       against      Kroger,

alleging       only    negligence         and    seeking         one    million      dollars    in

damages.        Kroger       removed      the    action          to    federal     court,    Adams

amended her complaint to include Republic as a defendant, and

Kroger    moved       for    summary      judgment,         which       the    district      court

denied.        A    trial        proceeded,      and      after       the   close     of    Adams’

evidence, Kroger and Republic moved for judgment as a matter of

law.     The district court granted the motion, and this appeal

followed.

                                                II.

       We review the grant of a motion for judgment as a matter of

law de novo, viewing the evidence in the light most favorable to

Adams and drawing all reasonable inferences in her favor.                                      See

Anderson v. G.D.C., Inc., 281 F.3d 452, 457 (4th Cir. 2002).

“Judgment as a matter of law is proper only if there can be but

one reasonable conclusion as to the verdict.”                                  Id.      (internal

quotation marks omitted).                 “[I]f reasonable minds could differ,

we must reverse.”            A Helping Hand, LLC v. Balt. Cnty., Md., 515

                                                 4
F.3d 356, 365 (4th Cir. 2008).               In making this evaluation, we

“may not make credibility determinations or weigh the evidence,”

and   we   “must   disregard   all   evidence     favorable   to    the   moving

party that the jury is not required to believe.”                     Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000).

                                      III.

      To prove that Republic was negligent, Adams must establish

that Judd owed her a duty to sufficiently and properly clean up

the spilled wine and that his breach of that duty resulted in

her injuries.       See Kellermann v. McDonough, 684 S.E.2d 786, 790

(Va. 2009).        There is no dispute that Republic owed Adams the

duty of reasonable care in cleaning up the spill.                  The district

court,     however,   concluded      that    Adams   did   not     provide   any

evidence from which a jury could conclude that Republic breached

this duty:

      When [Judd] accidentally dropped the bottle, he
      secured the area with boxes.    He swept up the broken
      glass, obtained a mop and bucket and mopped the floor.
      Afterwards, he put a yellow caution cone in the area.
      All of these beg the question: what else was Judd
      supposed to do given what he had done?     There is no
      evidence in the record, expert or otherwise, that
      establishes that Judd breached his duty of care.

J.A. 211.     The court subsequently took the case away from the

jury by granting the defendants’ motion, noting that it would

“not allow the jury to speculate on what . . . might have been.”

J.A. 212.


                                       5
       Adams argues on appeal that the jury could have found that

Republic breached its duty in the following ways: mopping an

area much larger than the spill area, failing to dry the area

after mopping, using a slippery hand-sanitizer-like substance to

clean the floor, using only a cone to mark the area, and placing

the    cone    in    an    unreasonable     place.       In    response      to   these

arguments, the defendants rely on the district court’s statement

that Adams presented no evidence from which the jury could have

found a breach.            But this is simply not the case.            For example,

Adams       presented      evidence     showing   that    Judd       used    a    hand-

sanitizer-like product to clean the floor, and the jury could

have       found    that    to   be   unreasonable. 1     Likewise,         there   was

evidence that Judd did not dry the floor after cleaning the

spill, and the jury could have found that Judd’s failure to dry

the floor was unreasonable.                Contrary to the district court’s

suggestion, if a jury were to make these findings, they would

not be mere “speculation and conjecture.”                      Doe v. Houser, 194

S.E.2d 754, 755 (Va. 1973).                 Rather they would be based on

evidence      in    the    record.      See,   e.g.,    J.A.    91   (Kroger      store

       1
       We acknowledge that Judd contends he cleaned the spill
area using only water.    But we reemphasize that our review at
this stage in the litigation requires us to view the evidence in
a light most favorable to Adams and draw all reasonable
inferences in her favor.     Accordingly, for purposes of this
appeal, we must accept the testimony that Judd used a hand-
sanitizer-like substance to clean the spill area.



                                           6
manager testifying that important part of cleaning up a spill is

“to    get   the   floor    as   dry       as    possible”);     J.A.       115    (Adams

testifying     that     substance     on    floor     “felt     like    .    .     .   hand

sanitizer”).

       “Ordinarily, negligence is a jury issue.”                   Artrip v. E.E.

Berry Equip. Co., 397 S.E.2d 821, 823 (Va. 1990).                      Because there

is evidence in the record from which a reasonable jury could

find in favor of Adams, the district court erred in weighing the

evidence and in granting the defendants’ motion.                        Accordingly,

we vacate the judgment of the district court as to Republic.

                                           IV.

       Having determined that a reasonable jury could have found

that Republic breached a duty to Adams, we turn to Kroger’s

potential liability.        “Under Virginia law . . . an owner . . .

of    real   property    owes    to    an       invitee   the   duty    to        exercise

reasonable care to make the premises safe.”                        Gauldin v. Va.

Winn-Dixie, Inc., 370 F.2d 167, 169 (4th Cir. 1966).                              To find

Kroger independently liable, Adams must establish that Kroger

“had actual or constructive notice” of the dangerous condition.

Ashby v. Faison & Assocs., Inc., 440 S.E.2d 603, 605 (Va. 1994).

Adams does not contend that Kroger had actual notice, so we are

only concerned with constructive notice.                      Under Virginia law,

“constructive knowledge or notice . . . may be shown by evidence

that the defect was noticeable and had existed for a sufficient

                                            7
length      of    time   to   charge         its       possessor   with    notice     of     its

defective condition.”               Grim v. Rahe, Inc., 434 S.E.2d 888, 890

(Va. 1993).

       The district court did not address whether the condition

was “noticeable,” and there was no evidence that the spill area

was somehow hidden, but Kroger argues nonetheless that Judd’s

efforts      in    cleaning        up    the    spill       made   the    spill    area      not

dangerous,        such   that      there       was     no   dangerous     condition     to    be

noticed.         We disagree.           Deborah Farmer, a Kroger store manager,

testified that if a Kroger employee observes a spill caused by a

vendor, that employee should tell the vendor to “stay with the

spill” while the Kroger employee “get[s] something to clean it

up.”     J.A. 76 (internal quotation marks omitted).                             She further

testified that Kroger does not instruct its vendors on how to

clean up a spill.             Accordingly, Judd’s efforts in cleaning up

the spill would not necessarily preclude Kroger from noticing

the    spill      area   as   a     dangerous           condition,   and    a    jury   could

reasonably reach that conclusion.

       On   the     issue     of    whether          sufficient    time    had    passed      to

charge Kroger with constructive notice, approximately nineteen

minutes elapsed from the time of the spill to the time of the

fall.       Because we know the exact amount of time that passed,

this case is distinguishable from other Virginia cases where

plaintiffs        have   failed         to   establish        negligence     because       they

                                                   8
could       not   establish    when    the       dangerous    condition   developed.

See, e.g., Grim, 434 S.E.2d at 890.                     Nevertheless, the district

court concluded that “[t]he unquestionable evidence presented at

trial is that Kroger lacked . . . constructive notice of the

spill which occurred in its store or Judd’s attempt to clean the

spill.”       J.A. 208.       Adams argues on appeal that the jury, and

not the court, should have determined whether nineteen minutes

was     a    sufficient       amount   of        time    to   charge    Kroger     with

constructive notice of the dangerous condition.                        We agree.    In

this case, video from a Kroger surveillance camera depicted the

spill area for nineteen minutes.                  In our view, a reasonable jury

could have found constructive notice under these circumstances,

and the court erred in reaching the opposite conclusion. 2




      2
       The defendants argue in the alternative that we should
review Adams’ constructive notice argument for plain error
because she failed to raise it below.             Because Adams’
constructive notice argument is arguably encompassed within her
amended complaint and because the district court addressed the
issue, we decline the invitation to treat the issue as
unpreserved. See WMTC, Inc. v. G.A. Braun, Inc., 247 F.3d 114,
116 n.2 (4th Cir. 2001) (“[T]he district court's opinion
discussed this issue at length. Thus it cannot be said that [the
party] failed to preserve” the issue.); H.E. Wolfe Constr. Co.
v. Fersner, 58 F.2d 27, 29 (4th Cir. 1932) (suggesting issue
preserved so long as “passed upon” by district court).



                                             9
                                V.

     For the foregoing reasons, we vacate the district court’s

grant of judgment as a matter of law and remand for proceedings

consistent with this order. 3

                                           VACATED AND REMANDED




     3
       Relying on two statements made by the district court,
Adams also argues that the district court erroneously required
her to put on expert evidence about the proper standard of care
for cleaning up a spill.       Because we vacate the grant of
judgment as a matter of law and remand the case for different
reasons, we need not address this issue.



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