In an amicus brief filed with the appeal, Tate Law attorney Mary Lynn Tate and The Creager Law Firm's Roger T. Creager pointed to statistics that showed over 8% of all pending civil cases made it to trial in 1973. Fast forward to 2019, the last year the U.S. Court system published statistics, and that number dropped to 0.7%. It's even worse within the Fourth Circuit: only 0.3% of civil cases made it to trial across the court's nine-court jurisdiction. 

"The unabashed and escalating enthusiasm for summary judgment seems remarkable in view of the fact any error in its use to dispose of a case violates the fundamental right to trial by jury," the brief argued. "The dangers of erroneous use of summary judgment are heightened because how a district court decides the issues raised by a summary judgment motion has long been a subject of great controversy and lack of clarity." 

Notably, during Wednesday morning's hearing the VTLA's claims weren't mentioned by name, but the issue of when a jury should determine a case's facts was hotly debated. 

"The puddle formed by drips, not a gush of water," Leach said, noting the aforementioned mystery was how long it took for the puddle to form and whether or not Target was aware of it's development. 

"A jury is allowed to take the inference of how long it takes to form a puddle of that size," he suggested. 

"What's the evidence that supports the time for the puddle to form?" asked Circuit Judge Albert Diaz. 

"Common sense," said Leach. "The jury is allowed to take the facts of record… If you look at evidence most likely for the plaintiff, it's a leak that developed all morning."

Circuit Judge Robert King admitted he and the panel might not be as well versed in Virginia law as applied in the dispute. 

"Target said there was a roof leak… plaintiff is what the law in Virginia refers to an invitee; what's the duty owed by commercial entities to an invitee in their premises?" he asked. 

"The duty is to make premises reasonably safe and warn about conditions they should know about." Leach said. 

But Bancroft, McGavin, Horvath & Judkins attorney John McGavin, who argued on behalf of Target, suggested the requirement was less. 

"The shop owner isn't the insurer of the guest," he said. "We have to offer a reasonably safe space. We don't guarantee safety, we have a duty to exercise ordinary care." 

Still, King wondered if it was up to a jury to decide whether Joseph counted as an invitee or, due to her third-party worker status, a licensee for the purposes of tort claims. 

"You'd have to instruct [the jury] on the distinctions and have them decide?" King asked.

"Typically that's for a judge to decide in Virginia, but I could see how that would occur," McGavin said, before joking about the number of slip and fall cases he'd tried—over 400, with a number reported cases at the Supreme Court of Virginia—in the Old Dominion. 

"You've tried a lot of these cases, you just don't want to try this one?" quipped Diaz. 

"I'm not afraid of it and I'm happy to try it," McGavin quipped back. 

And while concerns about overuse of summary judgment weren't directly mentioned during oral arguments, McGavin did address some of the VTLA's claims in his response brief. 

Where both plaintiff and the association argued about the length of time for the puddle to form amounted to a dispute of material fact enough to block early dismissal, he argued the lack of puddle timeline evidence could also suggest the opposite. 

"It is just as logical to assume water collected in the ceiling tile and failed, creating a puddle moments before Ms. Joseph approached aisle 27, as it is to assume it was created by a slow drip over time that had not been observed by anyone, despite Target's regular inspections," he wrote. 

And as for concerns of summary judgments overuse, he suggested the opposite was favored under Virginia law before the panel. 

"Motions for summary judgment are virtually abolished [in Virginia]," he said. "Here, the use of summary judgment is a valuable tool so that cases are not going to trial that shouldn't. And we think in this case the judge got it right."

Circuit Judge Marvin Quattlebaum rounded out Wednesday's panel.