De Novo: A Virginia Appellate Law Blog : Virginia Appellate Lawyer & Attorney : James O'Keeffe : Gentry Locke Rakes & Moore Law Firm : VA Court of Appeals Commentary & Analysis

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The Supreme Court of Virginia pulls off a neat trick in Fultz v. Delhaize America, Inc. It hands down an opinion that's factually and doctrinally unremarkable--even boring--on its own terms, yet fascinating in the broader context of the current state of the law.

Doris Fultz, accompanied by her 3-year-old grandson, visited a grocery store's ATM. The ATM was bordered by horizontal metal bars about 5 inches off the ground, apparently to protect it from grocery carts. While Fultz was at the ATM, her grandson darted out. She reached for him and tripped over the bars, breaking her elbow.

Fultz sued the store's parent company, Delhaize. Delhaize contended that she was contibutorily negligent for failing to see an open and obvious hazard. The trial court agreed, and granted summary judgment in its favor.

Pretty standard stuff so far. And folks who have been paying even marginal attention to the Court for the past few years should have a pretty good idea where it's going with this one. Summary judgment for contrib as a matter of law? 7-0 reversal and remand, with another great warning about short-circuiting litigation.

So why is Fultz interesting?

• It may help you dodge the ol' Twiqbal. The Court handed Fultz on June 4th--just over two weeks after we received the Supreme Court of the United States' remarkable opinion in Ashcroft v. Iqbal, which further "clarified" (read: heightened) federal pleading standards in the wake of Twombly. Iqbal is a huge deal. It explains Twombly, a 2007 case that has already been cited so many times that you can't Shephardize it. (You just get the "more than 20,000 hits--please restrict your search" message.) One of the trends to watch over the next few years will be the extent to which Twombly and Iqbal seep into state court trial practice and effectively heighten state court pleading standards, as crafty defense attorneys cite cases applying them to state court judges (such maneuver, to be known as a "Twiqbal"). And immediately on the heels of Iqbal, we get a stern opinion from the Supreme Court of Virginia cautioning trial courts about short-circuiting litigation. Of course, Fultz was decided on summary judgment, not demurrer. But it sure suggests that the evolution of these cases over the next few years will be fun to watch.
• It's another arrow in the quiver. On a more practical level, Fultz is another case in the CaterCorp line. It gives us more language about how the Court is increasingly confronted with appeals in which a trial court short-circuited litigation. It also reiterates that summary judgment is a "drastic remedy." Fultz offers another tool for trial counsel resisting dispositive motions, and appellate counsel seeking to reverse summary dispositions.
• Trial court reaction. Finally, as Steve Emmert notes, trial courts will probably react to Fultz by refusing to grant summary judgment in all but the most obvious cases. As he explains, that is consistent with Supreme Court case law, in which summary judgment is disfavored. Fultz will likely further erode the utility of summary judgment as a procedural tool in Virginia.