Peter Jarmak v. Rebecca Ramos , 497 F. App'x 289 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2159
PETER S. JARMAK,
Plaintiff – Appellant,
v.
REBECCA H. RAMOS, a/k/a Rebecca Clarke, a/k/a Rebecca Johnson,
Defendant – Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:10-cv-00048-NKM)
Argued: October 23, 2012 Decided: November 16, 2012
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Vacated and remanded by unpublished opinion. Judge Shedd wrote
the opinion, in which Judge Gregory concurred. Judge Davis
wrote a dissenting opinion.
ARGUED: James J. O'Keeffe, IV, GENTRY, LOCKE, RAKES & MOORE,
Roanoke, Virginia, for Appellant. John Lester Cooley, Jr.,
WOOTENHART, PLC, Roanoke, Virginia, for Appellee. ON BRIEF:
Monica Taylor Monday, H. David Gibson, GENTRY, LOCKE, RAKES &
MOORE, Roanoke, Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
In this negligence action, Peter S. Jarmak contends that he
was injured when he fell through a rotted hammock while staying
as a guest at Rebecca H. Ramos’ rental cabin. The district court
entered summary judgment for Ramos, concluding she was not
negligent as a matter of law because Jarmak failed to establish
she had actual or constructive notice of the hammock’s unsafe
condition. Jarmak now appeals this ruling, arguing he presented
sufficient evidence to withstand summary judgment. Because we
agree with Jarmak, we vacate the summary judgment and remand for
further proceedings.
I
We recount the material facts appearing in the record in
the light most favorable to Jarmak, the nonmoving party. Henry
v. Purnell, 652 F.3d 524, 527 (4th Cir.) (en banc), cert.
denied, 132 S.Ct. 781 (2011). Ramos’ primary residence was the
cabin, which sits on a lot overlooking the Blue Ridge Mountains
in Virginia. In 2007, Ramos began occasionally renting her cabin
to guests to earn additional income. When guests occupied the
cabin, Ramos stayed elsewhere. A cotton rope hammock hung
between two trees in Ramos’ backyard, and she advertised the
hammock as an amenity in seeking rental customers.
2
Jarmak and his wife Lesia rented the cabin for several days
in early October 2008. In an email sent to Ramos before their
rental period began, Lesia stated that Jarmak planned to use the
hammock during their visit. At the time of this rental, Ramos
was unaware of any problem with the hammock.
One afternoon during the rental period, as Jarmak sat down
in the hammock, some of the hammock ropes snapped, causing him
to fall through to the ground. Jarmak had not used the hammock
before this incident, and he did not examine it or notice
anything wrong with it before sitting in it. Afterwards,
however, he noticed that the snapped ropes were frayed. Although
he felt sore, he did not seek immediate medical attention.
Upon departing the cabin, Jarmak left a note for Ramos in
which he stated, among other things, that the ropes on the
hammock were rotted and some had snapped when he sat on it.
Ramos responded by email, thanking the Jarmaks for informing her
about the hammock and stating that she planned to order a new
one. Ramos stated in a later email that she had purchased a new
hammock and intended to examine it more often in the future.
Before Jarmak indicated his intent to file this lawsuit, Ramos
disposed of the broken hammock. 1
1
Because Ramos disposed of the hammock, Jarmak argued below
that the district court should sanction her for spoliation of
evidence. See generally Hodge v. Wal-Mart Stores, Inc., 360 F.3d
(Continued)
3
In his deposition, Jarmak was asked whether he would have
seen the problem with the hammock had he looked at it before
sitting in it. Prefacing his answer with the fact that he is not
“a hammock expert,” he answered that he did not think he would
have seen the problem. J.A. 37-38. Jarmak also testified that,
apart from the broken hammock ropes, he did not examine any
other hammock ropes after he fell.
In her deposition, Ramos was asked whether she inspected
her property before renting it to ensure it is in a safe
condition. She responded that she cleaned the property and did
yard work, and she “assumed that if there was something wrong,
[she] would have noticed it.” J.A. 66. She also testified that
she had no reason to believe that she did any other type of
property inspection before renting the cabin to the Jarmaks.
Regarding the hammock specifically, Ramos testified she
“looked at it on a regular basis,” J.A. 69, and “saw it very
frequently,” J.A. 127. However, she could not recall the last
time she looked at the hammock before the Jarmaks’ rental. When
asked about the last time she had “inspected” the hammock before
the Jarmaks’ rental, she stated: “Well, it depends upon what you
446, 450 (4th Cir. 2004) (discussing the spoliation rule). The
court rejected that argument, and Jarmak does not challenge that
ruling on appeal.
4
mean by inspect. I would look at the hammock. Basically, you
know, I would do yard work in the vicinity, very close vicinity
frequently [and] I would notice whether or not there was
anything broken.” J.A. 125. Although Ramos sometimes used the
hammock, she could not recall when she last did so before the
Jarmaks’ rental, stating: “It could have been a few days. It
could have been weeks. I don’t know.” J.A. 125. 2 She further
testified that although she tried to protect the hammock by
storing it in a shed during inclement weather, she could not
recall the last time before the Jarmaks’ rental that she had
either put the hammock in the shed or taken it out. Ramos also
could not specify how old the hammock was, noting only that she
purchased it sometime after February 2004.
II
Under Virginia law, which applies in this diversity case,
“[a]ll 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
2
Ramos’ testimony suggests that she infrequently used the
hammock. She explained: “I just know that I would sit in it when
I had the time. I just don’t have as much time to sit in a
hammock as I would like.” J.A. 125.
5
Family Properties, LLC, 726 S.E.2d 251, 254 (Va. 2012). “In
every case, it is for the court to determine, as a question of
law, from all the circumstances, if it is controverted, whether
the plaintiff falls within the class of those to whom the
defendant owes a duty.” Dudley v. Offender Aid & Restor. of
Richmond, Inc., 401 S.E.2d 878, 883 (Va. 1991). “If that
question is answered affirmatively, it is for the jury, properly
instructed, to determine as an issue of fact whether the
defendant breached the duty.” Id.Of course, under this framework, this case may proceed to
the jury only if Jarmak has met his burden at the summary
judgment stage. Summary judgment is appropriate if taking the
evidence and all reasonable inferences drawn therefrom in the
light most favorable to the nonmoving party, “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a);
Henry, 652 F.3d at 531. Although summary judgment is “favored as
a mechanism” to avoid an unnecessary trial, it “must be used
carefully so as not . . . to foreclose trial on genuinely
disputed, material facts.” Thompson Everett, Inc. v. National
Cable Adv., LP, 57 F.3d 1317, 1322-23 (4th Cir. 1995). “The
question at the summary judgment stage is not whether a jury is
sure to find a verdict for the plaintiff; the question is
whether a reasonable jury could rationally so find.” Hoyle v.
6
Freightliner, LLC, 650 F.3d 321, 334 (4th Cir. 2011) (emphasis
in original).
Jarmak contends that (1) Ramos owed him a duty of care to
maintain her property in a reasonably safe condition and (2) she
breached that duty by failing to discover and protect him from
the rotted hammock. Pertinent to this appeal, Ramos moved for
summary judgment on the grounds that Jarmak failed to establish
a prima facie case of negligence because he failed to establish
that she had actual or constructive notice of the hammock’s
unsafe condition.
Ruling on the motion, the district court defined the nature
of the relationship between Ramos and Jarmak as being that of
innkeeper and guest. Then, after correctly noting that Jarmak
does not contend that Ramos had actual notice, the court held
that a reasonable jury could not conclude that she had
constructive notice of the hammock’s unsafe condition “because
there is no evidence that the condition was detectable” at the
time of the incident. J.A. 115. The court made two important
subsidiary findings to support this holding: (1) Ramos had
adequately inspected the hammock before Jarmak fell and (2)
there is no evidence to establish that the unsafe condition of
the hammock would have been visible to her. We review the order
granting summary judgment de novo. Henry, 652 F.3d at 531.
7
A.
For purposes of this appeal, the parties accept, as we do,
the district court’s determination that Ramos was an innkeeper
and Jarmak was her guest. “Once the technical relation of
innkeeper . . . and guest has been established, the parties
become subject to the duties, responsibilities and liabilities
which attach to the relationship.” Alpaugh v. Wolverton, 36
S.E.2d 906, 908 (Va. 1946). This is important because, relative
to many other legal relationships, an innkeeper’s duty of care
to its guest is heightened. See Taboada v. Daly Seven, Inc., 626
S.E.2d 428, 433 (Va. 2006) (noting that “the nature of the
landlord-tenant relationship is not congruent with the
relationship of innkeeper and guest”); Alpaugh, 36 S.E.2d at 908
(holding that a hotel’s duty to its guest differs from its duty
to a hotel restaurant patron).
Although an innkeeper is not an “absolute insurer” of the
personal safety of its guests, a “special relationship” exists
between the innkeeper and guest, and an “elevated duty” of care
on the innkeeper’s part requires it “so far as human care and
foresight can provide . . . to use the utmost care and diligence
of very cautious persons;” therefore, the innkeeper “will be
held liable for the slightest negligence which human care, skill
and foresight could have foreseen and guarded against.” Taboada,
8
626 S.E.2d at 434 (internal punctuation edited). 3 The rationale
underlying this principle is that “the guest of an innkeeper
entrusts his safety to the innkeeper and has little ability to
control his environment. The guest relies upon the innkeeper to
make the property safe. . . .” Id. Thus, “[t]he responsibility
for the premises is primarily on the innkeeper, and the guest
may generally assume that they are safe.” Crosswhite v. Shelby
Operating Corp., 30 S.E.2d 673, 674 (Va. 1944) (internal
quotation marks omitted).
Like other property holders, an innkeeper’s duty to use
reasonable care in maintaining its property “encompasses the
duty to make reasonable inspections to determine if and when
repairs are needed.” Gumenick v. United States, 193 S.E.2d 788,
795 (Va. 1973). Under Virginia law, the term “inspect” is
generally defined as “to view closely and critically” or to make
a “careful examination.” Meadows v. Commonwealth, 544 S.E.2d
876, 878 (Va. App. 2001) (internal punctuation and citations
edited). “Whether or not reasonable care was used in making
inspections depends upon the facts and circumstances in each
case and upon the evidence adduced.” Gumenick, 193 S.E.2d at
795.
3
We have described the innkeeper’s duty under Virginia law
as “a specially [sic] high duty of care.” Ely v. Blevins, 706
F.2d 479, 481 (4th Cir. 1983).
9
One factor to be considered in determining whether an
inspection is reasonable is whether the item to be inspected is
susceptible to deterioration. See, e.g., Williamson v. Wellman,
158 S.E. 777, 780 (Va. 1931) (in discussing the duty to inspect,
the court noted that it “is a matter of common knowledge that
timber, exposed to the weather and so placed that water will
collect in cracks where it is fastened together, will rapidly
decay”); Erle v. City of Norfolk, 123 S.E. 364, 366 (Va. 1924)
(in discussing the duty to inspect, the court noted that
“[m]unicipal corporations must take notice of the tendency of
timber to decay, or to weaken or break when subjected to
constant use”). Moreover, the circumstances of a given case may
establish that a visual inspection alone is insufficient to
satisfy the duty of reasonable care. See, e.g., Gumenick, 193
S.E.2d at 794 (ample evidence existed for jury to find that
landlord failed to adequately inspect rotten wood railing,
including testimony that the latent rotten condition could have
been detected by sounding, tapping, or probing the wood);
Lincoln v. Reksten Mgmt., 354 F.3d 262, 267-68 (4th Cir. 2003)
(vacating summary judgment in negligence action based on jury
question concerning reasonableness of inspection of wooden ship
10
deck where evidence tended to establish that sounding decayed
wood with a hammer could have identified the unsafe condition). 4
Because an innkeeper owes a duty of care to its guests to
inspect and discover unsafe conditions, it can be held liable to
a guest under the theory of constructive notice. See Kirby v.
Moehlman, 30 S.E.2d 548, 551 (Va. 1944) (explaining that an
innkeeper’s “qualified duty of ordinary care may become an
absolute duty and does become an absolute duty where a
proprietor knew or should have known of a danger that might have
been easily removed”). Thus, if an unsafe condition on the
property was noticeable and had existed for a sufficient length
of time so that it would have been discovered by the exercise of
reasonable diligence, then the innkeeper can be held responsible
for it. See City of Richmond v. Holt, 563 S.E.2d 690, 694 (Va.
2002) (constructive notice generally). The plaintiff bears the
burden of proving constructive notice. Revell v. Deegan, 65
S.E.2d 543, 546 (Va. 1951). Although constructive notice cannot
be established by mere speculation, Great Atl. & Pac. Tea Co. v.
Berry, 128 S.E.2d 311, 314 (Va. 1962), it is usually, if not
always, established by circumstantial evidence, Appalachian
Power Co. v. Sanders, 349 S.E.2d 101, 105 (Va. 1986).
4
The cases cited in the text deal with wood and its
tendency to decay, but the same principles undoubtedly apply to
other items, including rope.
11
Applying these principles, and viewing the facts in the
light most favorable to Jarmak, we hold that a genuine issue of
material fact exists regarding whether Ramos should be charged
with constructive notice of the hammock’s unsafe condition. This
holding precludes summary judgment for Ramos.
B.
In light of Ramos’ elevated duty of care as an innkeeper,
we first conclude that a jury question exists as to whether she
adequately inspected the hammock before Jarmak fell. It is
common knowledge that rope deteriorates over time when exposed
to nature, and Ramos’ testimony that she typically attempted to
place the hammock in a shed during inclement weather
demonstrates her awareness of this fact. Ramos was also on
notice that the Jarmaks intended to use the hammock during their
rental period. Nonetheless, although she testified that she
looked at the hammock frequently from various areas in her yard,
she could not specify when, before Jarmak fell, she had last
done so. Likewise, she could not specify when she had last sat
in the hammock before Jarmak fell, and her testimony suggests
that she sat in it infrequently.
Based on this evidence, a jury reasonably could conclude
that Ramos’ casual observation and occasional use of the hammock
did not fulfill her innkeeper’s duty to perform an adequate
12
inspection of her premises. 5 Stated more directly, a jury could
reasonably conclude that by not examining the hammock “closely
and critically,” Meadows, 544 S.E.2d at 878, she did not utilize
“utmost care” to ensure the safety of her guests, Taboada, 626
S.E.2d at 434. In this regard, contrary to the district court’s
reasoning, we conclude that Ramos’ duty to inspect the hammock
may have encompassed more than a mere visual examination or
casual use. It is for a jury to decide that matter based on the
facts presented at trial, and a jury might reasonably conclude
that Ramos had an obligation to examine the hammock in a more
thorough “hands-on” manner.
C.
This conclusion does not, however, end the analysis because
“a negligent failure to inspect does not result in the
imposition of liability unless it is established that a
5
In Williamson, the plaintiff, who was an invitee, sued a
landlord for damages he suffered as a result of the collapse of
an exterior stairway and porch. The collapse was caused by the
decay of the wood that fastened the stairway and platform to the
dwelling. Recognizing that it is common knowledge that wood,
when exposed to weather, will rapidly decay, the Supreme Court
of Virginia found the evidence sufficient to establish the
landlord’s constructive notice of the rotten wood. Notable in
the court’s analysis is the fact that the landlord’s only
examination of the stairway and platform “was what [his agent]
could see as he walked up the steps” when he made his weekly
rent collection. 158 S.E. at 780. The court considered this type
of casual inspection to be insufficient to satisfy the
landlord’s duty of care as a matter of law.
13
reasonable inspection would have disclosed the presence of the
defect which caused the harm.” United States v. Moran Towing &
Transp. Co., 409 F.2d 961, 963 (4th Cir. 1969). Given that an
unsafe condition “may have existed for a great length of time
and could not have been detected by any kind of inspection,” the
crucial inquiry for constructive notice purposes “is not the
length of time the defect may exist,” but rather is “the
susceptibility to discovery and the length of time the defect
may exist that would be sufficient to charge . . . notice.” City
of Richmond v. Hood Rubber Prods. Co., 190 S.E. 95, 100 (Va.
1937). Thus, we must determine whether there is sufficient
evidence in the record for a reasonable jury to conclude that
the unsafe condition of the hammock both existed for a
sufficient period of time before Jarmak fell and was detectable
upon an adequate inspection. If there is not evidence in the
record on both of these points, then Ramos is entitled to
summary judgment.
The evidence establishes that the broken hammock ropes were
frayed and rotten, but there is no direct evidence in the record
to establish that a prior visual inspection would have
necessarily revealed the unsafe condition. Indeed, the only
testimony on this point is Jarmak’s statement that he would not
have seen the problem with the ropes if he had looked before
sitting on the hammock. Of course, unlike Ramos – who had an
14
elevated duty of care as an innkeeper - Jarmak had no duty under
Virginia law to inspect the hammock before sitting in it, and
his deposition testimony indicates that he did not closely
examine it after he fell. We simply do not believe that Jarmak’s
testimony in this regard is determinative at this stage of the
proceedings.
Because the broken hammock ropes were frayed and rotten,
conditions that ordinarily occur over a considerable period of
time, we believe that a reasonable jury could conclude that an
adequate visual inspection by Ramos would have revealed the
unsafe condition. 6 Moreover, as we have noted, Ramos’ duty to
6
In Norfolk & W. Ry. Co. v. Chrisman, 247 S.E.2d 457 (Va.
1978), the plaintiff sued a railway company for damages he
sustained when a boxcar door fell on him. The evidence
established a defect in the metal door guide which, among other
things, appeared “awful rusty.” Id. at 459. On appeal, the
Supreme Court of Virginia considered the company’s claim that it
was not negligent as a matter of law. The court noted that the
company had “the duty, in the exercise of ordinary care, to
inspect the car to determine whether it was reasonably safe for
unloading and to repair or give warning of any dangerous
condition discoverable by the inspection.” Id. Rejecting the
company’s argument that the defect on the door would not have
been discoverable by a reasonable inspection, the court held (1)
“evidence of the existence of the defect after the accident
tended to show that the defect preexisted the accident,” (2)
“the ‘awful rusty’ condition of the metal in the defective area
justified the inference that the defect had existed for an
appreciable period before the accident,” and (3) “because the
defect was clearly apparent to railroad employees after the
accident, the conclusion was justified that the defect would
have been ‘fairly obvious’ upon a reasonable pre-delivery
inspection.” Id. at 459-60.
15
inspect the hammock may have required her to do more than
visually examine it, and we believe that a reasonable jury could
also conclude that a hands-on examination of the hammock would
have revealed the unsafe condition.
III
In short, the evidence in this record, viewed in the light
most favorably for Jarmak, does not establish as a matter of law
that Ramos met her duty as an innkeeper to inspect the hammock
before the Jarmaks rented the cabin. Moreover, a jury could
reasonably find based on that evidence that an adequate
inspection would have revealed the hammock’s rotten ropes. Ramos
is therefore not entitled to summary judgment. Accordingly, we
vacate the summary judgment and remand for further proceedings. 7
VACATED AND REMANDED
7
After ruling on summary judgment, the district court also
denied Jarmak’s Rule 59(e) motion. Because we conclude that the
court erroneously entered summary judgment, we need not consider
Jarmak’s appeal from the Rule 59(e) order.
16
DAVIS, Circuit Judge, dissenting:
The majority concludes that, “In short, the evidence in
this record, viewed in the light most favorably for Jarmak, does
not establish as a matter of law that Ramos met her duty as an
innkeeper to inspect the hammock before the Jarmaks rented the
cabin.” Ante at 16. In so holding, the majority has asked and
answered the wrong question. The issue in this case is not
whether “Ramos met her duty as an innkeeper to inspect the
hammock before the Jarmaks rented the cabin.” Mr. Jarmak, as the
plaintiff, bears the risk of non-persuasion, i.e., the burden of
proof, on all of the elements of his damages claim. Thus, as the
district court recognized, the real issue is whether Mr. Jarmak
has offered evidence on the basis of which a reasonable jury
could rationally find by a preponderance of the evidence that
the condition of the hammock was such that a reasonable
inspection 1 would have disclosed such weakness in the ropes that
it would be unlikely to support a man, such as Mr. Jarmak,
weighing more than 230 pounds. Although the majority asserts
that Ms. Ramos was not an insurer, in light of the paucity of
1
We can be certain that Mr. Jarmak will insist that the
district court must instruct the jury that only a “hands on”
inspection of the hammock (whatever that means) could discharge
Ms. Ramos’ duty. The district court should of course resist any
such instruction as unsupported by any extant Virginia appellate
case.
17
evidence in this record of what a “reasonable inspection” would
have revealed concerning the condition of the hammock before the
ropes broke, that is precisely what the majority’s holding makes
her.
Even viewed in the light most favorably to Mr. Jarmak, the
evidence of Ms. Ramos’ breach of duty, at best, is in equipoise. 2
If this case is decided by a jury, the jury will find for Ms.
Ramos if it acts rationally. If instead it finds for Mr. Jarmak,
its verdict will amount to little more than a flip of a coin
successfully (and luckily) called by Mr. Jarmak.
2
[T]he inquiry involved in a ruling on a motion
for summary judgment or for a directed verdict
necessarily implicates the substantive evidentiary
standard of proof that would apply at the trial on the
merits. If the defendant in a run-of-the-mill civil
case moves for summary judgment or for a directed
verdict based on the lack of proof of a material fact,
the judge must ask himself not whether he thinks the
evidence unmistakably favors one side or the other but
whether a fair-minded jury could return a verdict for
the plaintiff on the evidence presented. The mere
existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must
be evidence on which the jury could reasonably find
for the plaintiff. The judge’s inquiry, therefore,
unavoidably asks whether reasonable jurors could find
by a preponderance of the evidence that the plaintiff
is entitled to a verdict--whether there is [evidence]
upon which a jury can properly proceed to find a
verdict for the party producing it, upon whom the onus
of proof is imposed.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)
(second bracket and emphasis in original; quotation marks
and citation omitted).
18
The district court did not err in granting summary
judgment. 3 Accordingly, and respectfully, I dissent.
3
The majority’s reliance on a host of Virginia cases never
cited by Mr. Jarmak to the district court or to this Court
admittedly makes for a stronger argument in favor of reversal
than that made by Mr. Jarmak. Nevertheless, all of those cases
are readily distinguishable, and obviously so. For example,
although the majority recites that the metal railing holding in
the boxcar door that fell off and caused injury in Norfolk & W.
Ry. Co. v. Chrisman, 247 S.E.2d 457 (Va. 1978), “among other
things, appeared ‘awful rusty,’” ante at 15, n.6, the “other
thing[]” referred to included the fact that, “[t]he metal in
this and a larger adjacent area, ‘at some time or another,’ had
been ‘heated and straightened.’” Id. at 459. Thus, the jury was
entitled to infer that the defendant railroad employed an
instrumentality that it (or its predecessor) knew was likely in
an altered and possibly a weakened condition, calling for
regular inspections.
19