                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-1167


HEIDI STROBEL,

                  Plaintiff - Appellant,

             v.

W.B.W. ENTERPRISES, INCORPORATED, doing business as Dayton
Farmer’s Market,

                  Defendant - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.     B. Waugh Crigler,
Magistrate Judge. (5:07-cv-00044-BWC)


Submitted:    October 28, 2008              Decided:   November 24, 2008


Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


H. Bishop Dansby, Keezletown, Virginia, for Appellant. Cathleen
Kailani Memmer, GUYNN, MEMMER & DILLON, P.C., Salem, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Heidi Strobel appeals from the district court’s order

granting summary judgment to the Defendant in her civil action

for tort damages related to premises liability.           Strobel slipped

and fell when she was exiting the Dayton Farmer’s Market (the

Market).   Defendant W.B.W. Enterprises managed the Market.              The

issue in this case is whether Strobel’s evidence of causation

established a reasonable inference that a door mat caused her

fall and resulting injuries.         We conclude that there exists a

genuine issue of material fact as to whether the door mats in

question   were   defective   and   caused   Mrs.    Strobel’s   fall.    We

therefore vacate the order granting summary judgment and remand

for further proceedings.

           Mrs. Strobel filed an action for personal injuries,

alleging that the negligence of the Defendant caused her injury.

Specifically, she alleged that she tripped over defective mats

when exiting the Market.        After completion of discovery, the

Defendant moved for summary judgment.               The Defendant alleged

that the mat was not defective or dangerous, the condition was

open and obvious, there was no actual or constructive notice,

there was insufficient evidence of causation, and that Strobel

was guilty of contributory negligence.              The court heard oral




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argument and granted the Defendant’s motion from the bench. 1                               The

court held that there was insufficient evidence to establish

that the mats were rippled or buckled more than one-half inch or

that       they        were    permanently         rippled.            The   court        found

insufficient evidence of causation, citing conjecture that the

mats       in   the     photograph    were   the        same    mats    involved      in    the

accident and that they were in a similar condition.                                If Strobel

had established causation, the court found there was sufficient

evidence of notice, and at least a genuine issue of material

fact as to whether she was contributorily negligent.

                 The    non-moving     party       must    produce       “specific        facts

showing that there is a genuine issue for trial.                              Fed. R. Civ.

P. 56(e).         Summary judgment should be affirmed only where there

are    no       material      facts   in   dispute        and   the     moving      party    is

entitled to judgment as a matter of law.                          Celotex v. Catrett,

477 U.S. 317, 322 (1986).                  The court examines the evidence in

the light most favorable to the non-moving party. 2                          Id.




       1
        The parties              consented         to     the   jurisdiction         of     the
magistrate judge.
       2
       The court held that there was sufficient evidence of
notice and an issue of material fact as to whether Strobel was
contributorily negligent.    Mrs. Strobel’s brief addresses all
issues surrounding the motion for summary judgment, as does the
Appellee’s brief. However, the only appealable issue raised is
causation, based on the district court’s ruling.



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               To prove negligence in a premises liability case, the

plaintiff       must   first     prove      the   existence        of    an     unsafe     or

dangerous condition on the premises.                 Kendrick v. Vaz, Inc., 421

S.E.2d 447, 449 (Va. 1992).              Mrs. Strobel contends that the mats

were defective because they had pre-existing distortions.                                 The

Market contends that the record is devoid of evidence of the

condition of the floor mats immediately prior to Strobel’s fall.

Assuming that the mats were defective at the time of Strobel’s

accident, she must also show that the defect in the mats caused

her to trip and fall.                 In Virginia, to prove a defendant’s

negligence, a plaintiff must prove “why and how the incident

happened.      .   .   .   And   if   the   cause    of     the    event      is   left   to

conjecture,        guess,   or    random     judgment,       the    plaintiff         cannot

recover.”       Town of West Point v. Evans, 299 S.E.2d 349, 351 (Va.

1983).

               We conclude that there is a genuine issue of material

fact as to whether the mats were defective and whether they

caused Mrs. Strobel’s fall.                 The photograph of the mats shows

that the edges of the mats, in some places, were not flush with

the floor and that there were ripples across the top of the

mats.        Although the district court was concerned that it could

not     be    categorically       determined        which     mat       may    have    been

involved, both mats were in a similar condition.                              Further, the

court seemed troubled that the mats may not have been in the

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same condition as in the photograph as the day of the accident.

A   manager,    however,     testified       in    deposition       that     after    the

accident the mats were rolled up and placed in secure storage,

and   a   shopkeeper      testified   that        the    mats    were   in    the    same

condition at the time of the accident as they were portrayed in

the photograph, which showed rippling of the mat.

            Finally, witness statements and deposition testimony

established that there were problems with the mats in the two

days they were placed before the accident, and the problems were

noticed    by   several    shopkeepers       in    the    Market.       We   therefore

conclude that there is a genuine issue of fact as to whether the

mats were defective and caused Mrs. Strobel’s fall.

            We vacate the summary judgment order and remand to the

district court for further proceedings.                    We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                                VACATED AND REMANDED




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