Lois Brown v. Wal-Mart Stores East, LP

USCA4 Appeal: 24-1102 Doc: 38 Filed: 06/04/2025 Pg: 1 of 18

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 24-1102

LOIS ANN BROWN,

Plaintiff – Appellant,

v.

WAL-MART STORES EAST, LP,

Defendant – Appellee.

Appeal from the United States District Court for the Western District of Virginia, at

Lynchburg. Robert S. Ballou, District Judge. (6:23-cv-00006-RSB-JCH)

Argued: December 12, 2024 Decided: June 4, 2025

Before HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges

Vacated and remanded by published opinion. Judge Richardson wrote the opinion, in

which Judge Harris and Judge Quattlebaum joined.

ARGUED: Allen David Hawkins, I, OVERBEY, HAWKINS, WRIGHT & VANCE,

PLLC, Rustburg, Virginia, for Appellant. Victor S. Skaff, III, GLENN ROBINSON

CATHEY SKAFF & WHITE PLC, Roanoke, Virginia, for Appellee. ON BRIEF: Chad

A. Mooney, PLDR LAW, PC, Lynchburg, Virginia, for Appellant.

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RICHARDSON, Circuit Judge:

Ice and snow can be slippery. Everyone knows that. Lois Brown knows that all too

well. That’s why, after a snowstorm, Virginia requires businesses to protect their

customers by using reasonable care in removing ice and snow from their outdoor premises.

But how much care was enough for reasonable care the morning after the snowstorm in

Lynchburg, Virginia on January 27, 2021? And did the Wal-Mart on Old Forest Road use

reasonable care the morning Lois Brown slipped and fell in its parking lot? These are hard

questions. These are fact-intensive, detail-sensitive, circumstance-specific questions. In

other words, these are jury questions. So we vacate the district court’s grant of summary

judgment for Wal-Mart and remand the case for further proceedings.

I. BACKGROUND

A. Facts

A snowstorm entered the Lynchburg area the night of January 27, 2021. Snowfall

began around 11:00 PM and lasted through, at the latest, 6:15 AM the next morning. It

was a light storm, with no more than 2.5 inches of snow coming down overnight. As the

snow began to fall, temperatures around Lynchburg were slightly above freezing, hovering

around 32–34 degrees Fahrenheit. But by the time the snowfall ceased, temperatures had

declined below freezing, around 29 degrees.

At 8:30 AM on January 28, the plaintiff Lois Ann Brown pulled her truck into the

parking lot of a Wal-Mart in Lynchburg. On her drive over, the roads were clear of snow.

Her parking space looked clear too, though the surface of the parking lot looked wet. She

parked, opened her door, saw no hazard on the ground, got out of her car—and immediately

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slipped. She struggled to get back up to her feet and had to grab onto her truck to stand.

To avoid slipping again, Brown got back in her truck and moved into a different parking

spot closer to the store.

Upon entering the Wal-Mart after her fall, Brown was met by an employee who saw

Brown’s wet clothing and knew that Brown had fallen. Although her clothes were wet

from the fall, Brown noticed no salt or other deicing chemicals clinging to her clothing.

The employee, concerned, went to fetch the store manager.

The store manager on duty that day was Anthony Ware. After Ware came out to

meet Brown, he accompanied her out to the spot of her fall to take photos of the spot and

file an incident report. Brown claims that when the two of them reached the spot of her

fall, Ware exclaimed “shit, this is ice,” and commiserated that he “almost bust[ed] [his]

ass” that morning in the parking lot too—though Ware denies ever having said this. J.A.

314–15. Ware’s photos of Brown’s parking space, which are part of the record, don’t show

very much; nothing appears to differentiate Brown’s parking space from any other space

in the shot. But Ware confirmed that he did not perceive any salt or other chemicals in the

parking lot when he went to check with Brown.

Ware said much the same about the state of the parking lot that morning. He had

arrived hours earlier at 5:50 AM to open the store. He couldn’t speak to the state of the

parking lot near Brown’s accident as he had parked closer to the store entrance on the

opposite side of the lot. But he confirmed that on his way in, he only saw salt on the

sidewalk adjacent to the store, not on the parking lot asphalt. Ware later testified that he

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wasn’t sure who put the sidewalk salt down; Wal-Mart employees sometimes would salt

the sidewalks themselves.

The rest of the ice and snow management for the store premises is handled by an

independent contractor. The contractor’s contractual responsibilities are unequivocal. The

contractor must “keep all paved and concrete surfaces,” including both the driving aisles

and individual parking spaces in the parking lot, “slip free.” J.A. 468. This responsibility

attaches at the “first sign of ice or snow accumulation regardless of the time of day or day

of week,” with “no delayed trigger.” J.A. 468–49. And to ensure the contractor does not

shirk its duties, the contractor is not supposed to leave the Wal-Mart site “until

confirmation by the Store Management Team that the work has been completed.” J.A.

470.

As required on account of the snowstorm, the contractor arrived on the Wal-Mart

premises that morning. Surveillance video—which only covers the main Wal-Mart

parking lot to the front of the store—shows the contractor’s truck driving around for a

couple of minutes just after 7:30 AM. The truck’s snowblade is up and stays within the

parking lot’s aisles, never once straying into the parking spaces. The truck does not stop.

No one steps out of the truck. And no salting or chemical application can be discerned.

When the truck leaves the video frame after its brief cameo, it is headed down the parking

lot aisle away from the store.

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Ware states that he was never alerted to the contractor’s presence. But Tyler Pritt,

the Asset Protection Coach at the store, apparently was. 1 Part of Pritt’s responsibility was

to attend to the parking lot on days with inclement weather. Pritt claimed that on the

morning of January 28, 2021, he inspected the parking lot around 7:30 AM and spoke with

the contractor, who was properly scraping the parking lot and applying salt and other

chemicals “as necessary.” J.A. 526. Neither Pritt’s inspection of the lot nor his alleged

interaction with the contractor nor the contractor’s deicing activities is caught on

surveillance video.

B. Procedural History

Brown sued Wal-Mart in state court. She asserted that Wal-Mart maintained its

premises negligently by not treating the ice in the parking lot and sought $300,000 in

damages for her fall. Wal-Mart removed the suit from state court to the District Court for

the Western District of Virginia. Following discovery, Wal-Mart moved for summary

judgment. The district court granted Wal-Mart’s summary judgment motion after a

hearing. Brown v. Wal-Mart Stores E., LP, 2024 WL 150779, at *1 (W.D. Va. Jan. 12,

2024).

The district court held that Brown’s negligence suit failed for two reasons. First, it

thought Brown failed to satisfy her legal burden under Virginia law to produce evidence

that Wal-Mart had “actual or constructive notice of the black ice where she fell.” Id. at *1.

1

Pritt’s declaration did not come out in discovery; it was instead appended to Wal-

Mart’s summary judgment reply brief before the district court. Brown did not object to

this late filing, however, so we treat Pritt’s declaration as we do the rest of the record.

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For Wal-Mart to be liable, the district court held, Brown needed to show that the store was

aware of the “specific unsafe condition”—i.e., the specific patch of ice in the parking lot—

that Brown slipped on, as well as when that specific patch of ice had formed. Id. at *3–4.

Absent such specific notice, the district court thought that Wal-Mart lacked a duty to

remove the ice in the first place. Id.

Second, the district court held that even if Wal-Mart possessed such a duty, Brown

produced no evidence that Wal-Mart’s actions that morning breached it. The district court

thought that nothing in the record rebutted Pritt’s declaration that the contractor had come,

scraped the lot, and applied salt and chemicals as necessary. Id. at *2, *4. It regarded

Ware’s testimony as only establishing the fact that a single employee “with admittedly no

knowledge of the contractor,” failed to notice the work the contractors did. Id. at *5. And

the district court did not believe that the lack of salt or chemicals on Brown’s clothing after

her fall implied anything at all about whether the contractor had applied them to the lot.

Id. Instead, the district court thought that Brown’s evidence was at best an “improper[]

attempt[] to shift to Walmart the burden to show the steps it undertook to clear the parking

lot.” Id. Without more, the district court granted summary judgment for Wal-Mart. Id. at

6.

Brown timely appealed.

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II. DISCUSSION

This is a slip-and-fall premises liability case in Virginia that is in federal court on

diversity jurisdiction. 2 Accordingly, we apply Virginia state law. See Erie R.R. v.

Tompkins, 304 U.S. 64, 78 (1938). Specifically, we apply Virginia negligence law. See,

e.g., Colonial Stores Inc. v. Pulley, 125 S.E.2d 188, 189–90 (Va. 1962) (defining a slip-

and-fall premises liability action as a negligence action). Negligence in Virginia requires

four elements: (1) the defendant must have a duty of care that (2) it breached, and for the

breach to have (3) proximately caused an (4) injury to the plaintiff. See, e.g., id.; Atrium

Unit Owners Ass’n v. King, 585 S.E.2d 545, 548 (Va. 2003).

As is the norm for slip-and-fall cases, the latter two elements are not at issue. All

agree that Brown slipped in the Wal-Mart parking lot and sustained injuries from the fall.

See Brown, 2024 WL 150779, at *2. On appeal, the parties dispute only (1) whether Wal-

Mart had sufficient notice of the ice in its parking lot to create a duty to Brown, and (2)

whether Wal-Mart breached that duty. We review the district court’s decision to grant

summary judgment for Wal-Mart on both grounds de novo. See Stanton v. Elliott, 25 F.4th

227, 234 (4th Cir. 2022). And because the defendant Wal-Mart moved for summary

2

Plaintiff Lois Brown is a citizen of Virginia. Defendant Wal-Mart Stores East, LP,

is a Delaware limited partnership that—after tracing through two LLCs to an Arkansas

corporation with its principal place of business in Arkansas—is a citizen of Arkansas. See

Capps v. Newmark Southern Region, LLC, 53 F.4th 299, 302 (4th Cir. 2022); Carden v.

Arkoma Assocs., 494 U.S. 185, 195–96 (1990). The damages requested by Brown for her

injuries are $300,000. These facts satisfy the citizenship and amount-in-controversy

requirements for diversity jurisdiction, 28 U.S.C. § 1332, so Wal-Mart properly removed

the case to the district court under § 1441. We have appellate jurisdiction over the district

court’s decision under § 1291.

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judgment, “[w]e view the evidence in the light most favorable to the plaintiff; we draw all

reasonable inferences in [her] favor; and we do not weigh the evidence or make credibility

calls, even if we do not believe [s]he will win at trial.” Id.

A. Wal-Mart Did Not Need to Know About any Ice Patch to Have a Duty

A business has a “duty to exercise ordinary care” toward its customers, who are

“invitee[s] upon its premises.” 3 Colonial Stores, 125 S.E.2d at 190; see also City of

Richmond v. Grizzard, 136 S.E.2d 827, 830 (Va. 1964). The duty of ordinary care requires

the business to “have the premises in a reasonably safe condition for [an invitee’s] visit”

by “remov[ing], within a reasonable time, foreign objects from its floors.” Colonial Stores,

125 S.E.2d. at 190. The foreign objects that must be removed include not only manmade

hazards like banana peels and empty soda bottles, but also natural hazards like ice and

snow. See Walker v. Mem’l Hosp., 45 S.E.2d 898, 901–02 (Va. 1948). And the duty

extends beyond the interior of the store to outdoor areas, including parking lots. See Wynne

v. Spainhour, 205 S.E.2d 634, 635 (Va. 1974).

Yet a business should not be expected to remove hazards that it has no way of

knowing about. So the duty to remove hazards only exists for those hazards the business

“knew” or “should have known” about. Colonial Stores, 125 S.E.2d at 190. Whether a

3

“[T]he duties owed to visitors traditionally depend upon the visitors’ status.” Tate

v. Rice, 315 S.E.2d 385, 389 (Va. 1984). In increasing order of duties owed, there are three

main categories: trespassers, licensees, and invitees. Id. A trespasser unlawfully enters

the land of another; a licensee enters for his own convenience with consent of the owner,

such as for a social purpose; and an invitee enters pursuant to the owner’s express or

implied invitation for non-social reasons. See Pearson v. Can. Contracting Co., Inc., 349

S.E.2d 106, 110 (Va. 1986).

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business actually knew—had actual notice—of a hazard is a straightforward question to

ask. Whether a business should have known about a hazard—had constructive notice—is

a more complex question. To show that a business owner had constructive notice, the

plaintiff must proffer “evidence that the defect was noticeable” and evidence that the defect

“had existed for a sufficient length of time.” Grim v. Rahe, Inc., 434 S.E.2d 888, 890 (Va.

1993). The latter temporal requirement means that “if the evidence fails to show when a

defect occurred on the premises,” the plaintiff cannot establish constructive notice. Id.

Wal-Mart contends that Brown cannot establish either actual or constructive notice

of the specific patch of ice that she slipped on. On Wal-Mart’s account, Brown alleges no

evidence of the store’s subjective knowledge, and she provides no details about the precise

time of the ice patch’s formation. Without notice, Brown cannot show that Wal-Mart had

a duty to remove her specific patch of ice, and her suit fails—or so the argument goes. But

Wal-Mart is mistaken. Brown need not show notice of her specific patch of ice for Wal-

Mart to have a duty. Instead, the snowstorm itself provided Wal-Mart with notice of the

ice and snow in the entire parking lot all at once.

Virginia law is clear: “The duty to remove ice and snow from outdoor areas . . . is

keyed to the end of the storm and a reasonable time thereafter.” Mary Wash. Hosp., Inc.

v. Gibson, 319 S.E.2d 741, 744 (Va. 1984). That is, once “a reasonable time [has] passed

after the end of the storm . . . it [becomes] the duty of the [business] to use reasonable care

to remove natural accumulations of snow and ice from [outdoor areas] used by its invitees.”

Id. at 744–45. The Supreme Court of Virginia has consistently applied this standard in all

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its inclement weather cases involving commercial establishments. 4 See, e.g., Wynne, 205

S.E.2d at 635 (store parking lot); Walker, 45 S.E.2d at 902 (hospital outdoor walkways);

Langhorne Rd. Apts., Inc. v. Bisson, 150 S.E.2d 540, 542–43 (Va. 1966) (apartment

outdoor common areas).

By its plain terms, the duty to use reasonable care to remove ice and snow after a

storm doesn’t apply to specific patches of ground. Rather, it applies to all of a business’s

“outdoor areas” all at once. Mary Wash. Hosp., 319 S.E.2d at 744. And of course it does.

That’s how weather works. “Every pedestrian who ventures out [during inclement

weather] knows he is risking the chance of a fall and of a possible serious injury.” Walker,

45 S.E.2d at 907. Every business knows that too. The weather conditions that would put

a business on notice that this patch of its parking lot is potentially slippery would also put

it on notice that that patch of its parking lot is potentially slippery. When it snows on the

premises, everywhere is potentially slippery. Snowstorms don’t coat half a parking lot.

This kind of generalized notice is unique to inclement-weather premises-liability

cases. For one-off hazards in other premises-liability cases, the business needs actual or

constructive notice of the precise hazardous object or substance that injured the customer.

See, e.g., Colonial Stores, 125 S.E.2d at 190 (requiring plaintiff to show that the defendant

had notice of a particular empty soda bottle); Grim, 434 S.E.2d 889–90 (requiring plaintiff

4

Private residences are not subject to this duty. Tate, 315 S.E.2d at 390 (“We . . .

decline to extend to a householder the duty imposed upon commercial establishments,

carriers, municipalities, and landlords to remove natural accumulations of snow and ice

within a reasonable time after the end of a storm.”).

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to show that the defendant had notice of a particular broken light fixture). The reason for

the difference is simple: It’s only possible to have notice of the hazardous conditions of

an entire area if the hazard in question covers the entire area. A snowstorm covers swathes

of ground; a banana peel does not.

Thus, in inclement-weather premises-liability cases—but not in one-off hazard

premises-liability cases—the plaintiff need not produce any evidence that the business had

notice of the specific hazard the plaintiff slipped on. The only evidence needed to show

that the business was on notice is evidence of the storm’s existence in the relevant area. 5

So to determine whether a business had a duty to remove ice and snow generally after a

storm, “the complete inquiry is whether the storm had ended, and if so, whether a

reasonable time period had passed.” 6 Amos v. NationsBank, N.A., 504 S.E.2d 365, 368

(Va. 1998).

5

The ice-and-snow premises-liability cases in Virginia do not discuss notice at all.

This might suggest that such cases are governed by a wholly different legal standard. But

the Virginia Supreme Court has told us that ice-and-snow cases use the same standard as

other premises liability cases. See Langhorne Rd. Apts., 150 S.E.2d at 542 (“We believe

the more realistic approach to the problem is to place the dangerous condition [of ice and

snow] with which we are here concerned upon the same basis as the other defects for which

a landlord may be held liable if they cause injury to those lawfully upon the premises.”

(emphasis added)). So the harmonious reading of the caselaw is that notice is required,

just as with any other premises liability suit, but that the storm itself provides notice. The

ice-and-snow cases just don’t bother stating the obvious.

6

As confirmation, we note that this understanding is reflected in Virginia’s own

model jury instructions. The model jury instructions contain two different premises

liability instructions, depending on if it’s a one-off hazard or if it’s ice and snow. The

instruction for the former is titled “Occupant’s Duty to Invitee: Remove Foreign Objects”

and requires actual or constructive notice by the occupant of the specific hazard in question.

Va. Civil. Jury Instr. No. 23.050. The instruction for the latter is titled “Commercial

(Continued)

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This snowstorm in the Lynchburg area ended at 6:15 AM at the latest, while

Brown’s accident occurred shortly past 8:30 AM. So the storm had ended by the time

Brown arrived onsite. That leaves the question of whether “a reasonable time” had passed

afterward. The answer here is yes. The logic behind keying the duty to a period after the

storm ceases is that “[i]t would be an unreasonable rule which would impose upon an

inviter the necessity of repeated excursions into the storm.” Walker, 45 S.E.2d at 907.

Once the storm ceases, the danger of repeated excursions evaporates. A reasonable time,

then, encompass only as long as it takes for a person to notice the storm has ceased and to

equip themselves with whatever is needed to clear the storm safely and warmly.

That duration passed here. This snowstorm in the Lynchburg area ended at 6:15

AM at the latest, while Brown’s accident occurred around 8:30 AM. That leaves over two

hours for Wal-Mart to have addressed the conditions in its parking lot. Ware, the store

manager, was available on the premises before 6:00 AM to monitor the weather conditions.

And the surveillance video shows that the contractor hired by Wal-Mart to clear the parking

lot arrived on site by 7:30 AM, if not earlier. Nothing in the record suggests that Wal-

Mart’s employees would incur an unreasonable risk to venture out and keep the parking lot

Occupant’s Duty to Remove Snow and Ice After Storm” and requires no such thing. Va.

Civil. Jury Instr. No. 23.110. It instead tracks the language of the caselaw and imposes the

duty “a reasonable time after the [freezing rain; snow] stops falling.” Id.

Why is there a separate jury instruction for inclement weather at all if it’s governed

under the same standard? Because the duty for a business to remove ice and snow is in

one respect a lesser duty than its duty to remove one-off hazards. A business must

generally remove hazards within a reasonable time from when they come into existence.

But for ice and snow, the clock on a “reasonable time” does not start to run until “after the

storm ceases,” even though hazardous ice and snow are present on the ground during the

storm. Langhorne Rd. Apts., 150 S.E.2d at 542.

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reasonably safe for customers by 8:30 AM. So by the time 8:30 AM came around, Wal-

Mart had a duty “to use reasonable care to remove natural accumulations of snow and ice”

from its parking lot to keep it in “reasonably safe condition.” 7 Langhorne Rd. Apts, 150

S.E.2d at 542.

The district court erred in concluding otherwise. It required Brown to proffer

evidence that Wal-Mart knew or should have known of the specific patch of ice she slipped

on. But the cases that the district court relied on are primarily one-off hazard cases. 8 See

Brown, 2024 WL 150779, at *3–4. For example, Hodge v. Wal-Mart Stores, Inc., 360 F.3d

446, 448 (4th Cir. 2004), is a case where the plaintiff was “injured by mirrors that fell from

an upper shelf of a mirror display.” The plaintiff in Winn-Dixie Stores, Inc. v. Parker, 396

S.E.2d 649, 650 (Va. 1990), slipped and fell on “a piece of snap bean.” And Thomas v.

Omni Hotels Mgmt. Corp, 742 F. App’x 729, 730–31 (4th Cir. 2018), involved a patch of

ice, but the patch of ice wasn’t from a storm, but from a malfunctioning decorative fountain.

Mirror displays, snap beans, and faulty fountains do not provide notice the way a storm

does. So these cases do not set out the correct understanding of notice in inclement weather

7

Though Wal-Mart hired an independent contract to maintain its outdoor areas, the

duty (and thereby liability for breaching that duty) is still Wal-Mart’s. “[I]f a duty to

maintain a premises in a safe condition is imposed by contract or by law, it cannot be

delegated to an independent contractor.” Love v. Schmidt, 389 S.E.2d 707, 709 (Va. 1990).

8

The district court also relied on Adkison v. Frizzell, 2012 WL 4127617 (W.D. Va.

August 14, 2012). And Wal-Mart on appeal cites Meadows v. Wal-Mart Stores East, LP,

2012 WL 4513808 (W.D. Va. October 1, 2012). Unlike the other cases, Adkison and

Meadows are both inclement weather slip-and-fall cases that are on all fours with this one,

and both cases reject the explanation that a storm provides general notice of ice and snow.

We are, of course, bound by neither of these federal district court cases.

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cases. Brown’s evidence of the snowstorm was enough to show that Wal-Mart had notice

of ice and snow. The district court accordingly should not have granted summary judgment

to Wal-Mart on this basis.

B. There Is a Genuine Dispute of Material Fact Over Wal-Mart’s Breach

The district court had a second, independent basis for granting summary judgment

for Wal-Mart. After assuming for the sake of argument that Wal-Mart had a duty, the

district court concluded that Brown failed “to provide affirmative evidence or show

specific facts that Walmart’s actions (or its failure to act) was not reasonable.” Brown,

2024 WL 150779, at *5. It thus held that a reasonable jury could not find that Wal-Mart

breached its duty to exercise reasonable care if such a duty existed. Id. at *6. We disagree

with the district court on this second basis too.

This question of whether Wal-Mart breached its duty of reasonable care can be

broken down into two questions: First, what was Wal-Mart required to do under the

circumstances? Second, what did Wal-Mart actually do? Wal-Mart breached if it did less

than its duty required. Determining breach thus requires comparing the answers to both

questions. But given the uncertain and contradictory state of the record, it doesn’t appear

the district court could have answered either of these questions as a matter of law.

For starters, the district court couldn’t definitively conclude what reasonable care

required of Wal-Mart that morning. “[T]he standard . . . of reasonable care[] usually

requires a jury determination.” Small v. WellDyne, Inc., 927 F.3d 169, 173 (4th Cir. 2019)

(quotation omitted). The Virginia Supreme Court has recognized much the same in its

premises liability cases. See, e.g., Knight v. Moore, 18 S.E.2d 266, 270 (Va. 1942)

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(“[Q]uestions as to whether the owner of the premises has exercised the required care

toward his invitee . . . are matters for the jury.”). That’s because “[t]he amount or degree

of diligence and caution which is necessary to constitute reasonable or ordinary care

depends upon the circumstances and the particular surroundings of each specific case.”

Perlin v. Chappell, 96 S.E.2d 805, 808 (Va. 1957). So such fact-intensive inquiries should

not be resolved on summary judgment as a matter of law “[u]nless the evidence is without

conflict, or unless fair-minded men cannot differ on the inferences to be drawn from it.”

Knight, 18 S.E.2d at 270. 9

Yet the evidence here is with conflict, and the inferences to be drawn unclear. The

key piece of evidence in the record, a 2-hour-long video of the parking lot from a Wal-

Mart surveillance camera, is poor quality, limited in scope, and difficult to interpret. The

video shows that there was snow present on the parking lot asphalt and wetness where

Brown slipped. But the amount of snow in the spots where it had not already melted might

accurately be described a “dusting” or a “smattering”—not a “sheet” and certainly not a

“blanket.” The video shows the independent contractor hired by Wal-Mart driving into the

lot around 7:30 AM then immediately driving out of the lot, taking no actions in frame.

9

Whether there is enough evidence in dispute to “take the case to the jury is to be

determined by federal standards in a diversity action.” Brant v. Robinson Inv. Co., 435

F.2d 1345, 1347 (4th Cir. 1971). But Virginia’s summary judgment standard is nearly

identical to the federal one. Compare Va. R. Civ. P. 3:20 (“Summary judgment shall not

be entered if any material fact is genuinely in dispute.”), with Fed. R. Civ. P. 56(a) (“The

court shall grant summary judgment if the movant shows that there is no genuine dispute

as to any material fact.”). We find Virginia’s application of this standard to premises

liability cases persuasive.

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But the surveillance video does not cover any time prior to 7:30 AM, nor does it show the

other sides of the store building. The video shows that Brown slipped and fell just after

getting out of her truck. But other patrons of the store are walking around other areas of

the parking lot without any apparent difficulty.

It’s hard to determine what the state of the parking lot is at all, so it’s

correspondingly hard to determine what Wal-Mart was expected to do in taking reasonable

care. Wal-Mart was not required to guarantee the safety of its customers by removing

every single flake of snow and ice. Far from being required to be “an insurer of the

plaintiff’s safety,” Wal-Mart only needed to “maintain [its] premises in a reasonably safe

condition” for its customers. Wynne, 205 S.E.2d at 635. Reasonably safe is not absolutely

safe; the use of reasonable care may still leave patches of ice and snow. See id. Under the

circumstances, then, was Wal-Mart required to scrape the parking spots given the

possibility of ice? Did it need to apply salt and other deicing chemicals to the asphalt? Or

could it have reasonably determined after inspection that nothing at all was required?

We’re not sure.

And separate from the question of what Wal-Mart needed to do, there’s uncertainty

in the record as to what Wal-Mart did do. In a late declaration, Pritt, responsible for

attending to the parking lot on inclement weather days, stated that he inspected the lot

himself that morning around 7:30 AM, confirmed that the independent contractor was “on

site applying chemicals and/or scraping the parking lot as necessary,” and instructed the

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contractors to “salt certain parking areas on the side of the store.” 10 J.A. 526. Pritt’s

declaration paints a picture of a diligent store engaged in extensive joint efforts with its

independent contractor to clear its parking lot of ice and snow.

But nothing described in Pritt’s declaration is captured on the video. Cf. Stanton,

25 F.4th at 235 (“[W]e cannot simply accept the . . . statements as true given potentially

contradictory physical evidence.”). And on the other side, Brown has put forth her own

evidence suggesting that the contractors did not, in fact, apply salt or deicing chemicals to

the parking lot. She alleges that she did not have any such substances on her clothing after

falling on the ground. Ware, too, stated in his deposition that when he accompanied Brown

out to the site of her accident, he “didn’t see” any “salt and stuff put in that area, like in the

parking spots.” J.A. 492–93. And Ware added that despite being the store manager on

duty that day, he was never informed of the contractor’s presence that morning or of the

work that they did. Brown and Ware’s statements make Wal-Mart’s efforts that morning

sound far less meticulous than Pritt does.

The natural inferences about what Wal-Mart was doing that morning, drawn from

the evidence proffered by each side, are in conflict. How much one thinks Wal-Mart was

doing that morning to clear its parking lot comes down to whose story is believed. With

the video in tow, is Pritt’s account of what Wal-Mart did that morning—scraping, salting,

deicing—the true account? Or is Brown’s? Answering this kind of question is the bread

10

We note that Pritt’s declaration suggests that Wal-Mart itself believed that, given

the condition of the parking lot that morning, it had a duty to scrape the lot and apply salt

and other deicing chemicals.

17

USCA4 Appeal: 24-1102 Doc: 38 Filed: 06/04/2025 Pg: 18 of 18

and butter of the jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)

(“Credibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions.”).

The record presents a range of reasonable determinations both for what Wal-Mart

had to do and for what Wal-Mart actually did. Some comparisons of those determinations

mean that Wal-Mart breached its duty of reasonable care. Others do not. The district court

therefore erred in concluding that “no reasonable jur[y] could find that Walmart was

negligent based on this evidence.” Brown, 2024 WL 150779, at *5.

* * *

Brown slipped and fell on ice in a Wal-Mart parking lot after a snowstorm. She

sued Wal-Mart for negligence, claiming that the company breached its duty under Virginia

law to use reasonable care in keeping its premises clear of ice and snow. We agree that

Wal-Mart owed such a duty to Brown after the storm, even if it lacked notice of the precise

patch of ice she slipped on. Whether Wal-Mart’s actions breached that duty, however, we

do not determine. The record before us is scant, the video grainy, and the testimony

conflicting. A reasonable jury could find for either party if given the chance. So it must

be given the chance. 11 Accordingly, the district court’s grant of summary judgment is

VACATED AND REMANDED.

11

Or, if not a jury trial, then at least further proceedings. Below, Wal-Mart raised

a contributory negligence defense. The district court never ruled on the defense because it

decided Wal-Mart was not negligent the first place, and the defense is not before us. On

remand, Wal-Mart is entitled to raise its contributory negligence defense again for the

district court’s consideration.

18