UNPUBLISHED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Vacated and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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,     

,   527   (4th   Cir.)    (en   banc),    cert.

denied, 

(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,        

,      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.,         

,    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.” 

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);

. 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, 

, 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, 

, 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. 

.



                                        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,     

, 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., 

,     433   (Va.    2006)   (noting   that    “the    nature   of   the

landlord-tenant         relationship      is    not      congruent     with     the

relationship of innkeeper and guest”); 

(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,



                                         

(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. . . .” 

responsibility

for the premises is primarily on the innkeeper, and the guest

may generally assume that they are safe.” Crosswhite v. Shelby

Operating      Corp.,    

,      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, 

,

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,          

, 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.” 

.

       3
       We have described the innkeeper’s duty under Virginia law
as “a specially [sic] high duty of care.” Ely v. Blevins, 

, 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,

, 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, 

, 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., 

(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., 

, 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,        

,    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, 

, 694 (Va.

2002) (constructive notice generally). The plaintiff bears the

burden      of    proving       constructive        notice.     Revell    v.    Deegan,   

, 546 (Va. 1951). Although constructive notice cannot

be established by mere speculation, Great Atl. & Pac. Tea Co. v.

Berry, 

, 314 (Va. 1962), it is usually, if not

always,       established         by    circumstantial          evidence,       Appalachian

Power Co. v. Sanders, 

, 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,” 

, she did not utilize

“utmost care” to ensure the safety of her guests, 

. 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 

. 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., 

, 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., 

, 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, 

(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.” 

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.” 

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.” 

                                       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., 

, 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, 

(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.’” 

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