Estep v. Xanterra Kingsmill, LLC, 4:16-cv-00089

Plaintiff Christine Estep fell on September 12, 2013 while walking toward tennis courts at Kingsmill resort where a grassy patch encroached onto an asphalt path.
The grassy patch measured roughly 16 inches along the path and extended about 14 inches into the asphalt; there was approximately five feet of clear paved path to the right.
Plaintiff testified she was paying attention, did not see a hole until after the fall, and contends the grass did not look like a trip hazard; she alleges a hole or depression under the grass up to 18 inches deep (depth disputed).
Defendant moved for summary judgment solely on the affirmative defense of contributory negligence, arguing the grassy encroachment was an open and obvious defect and Plaintiff voluntarily stepped off the paved surface.
The sole legal question at summary judgment was whether, under Virginia law, the condition was an open and obvious danger such that contributory negligence as a matter of law barred recovery.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the grassy encroachment/hole was an open and obvious danger so that contributory negligence bars recovery	Estep: Grass was visible but did not appear hazardous; the dangerous hole was obscured and not obvious, so a jury must decide	Kingsmill: The grass encroachment was an obvious defect and Estep negligently stepped off the paved path despite ample room	Court denied summary judgment — reasonable jurors could differ; factual questions about whether the hazard was open and obvious preclude ruling as a matter of law

Fobbs v. Webb Bldg. Ltd. P'ship, 232 Va. 227 (Virginia Supreme Court) (establishes landowner duty to invitees and the open-and-obvious exception)
Scott v. City of Lynchburg, 241 Va. 64 (Virginia Supreme Court) (plaintiff who trips on open and obvious condition is guilty of contributory negligence as a matter of law absent excuse)
Crocker v. WTAR Radio Corp., 194 Va. 572 (Virginia Supreme Court) (visible condition may not be an obvious hazard if appearance disguises the danger)
O'Brien v. Everfast, Inc., 254 Va. 326 (Virginia Supreme Court) (visible objects are not necessarily hazards; jury may find browsing invitees need not guard against obscure hazards)
Volpe v. City of Lexington, 281 Va. 630 (Virginia Supreme Court) (distinguishes open-and-obvious conditions from hidden hazards that excuse contributory negligence)
Freeman v. Case Corp., 118 F.3d 1011 (4th Cir.) (under Virginia law courts examine whether hazard was clearly apparent, not merely whether defect was visible)