Wood v. Woolfolk Properties, Inc. , 258 Va. 133 ( 1999 )

Present: All the Justices
EDNA WOOD
v. Record No. 981197 OPINION BY JUSTICE CYNTHIA D. KINSER
June 11, 1999
WOOLFOLK PROPERTIES, INC., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
The primary issue in this premises liability case is
whether the circuit court erred by admitting evidence
pertaining to the absence of prior accidents. Finding
error in the circuit court’s judgment, we will reverse.
I.
This appeal arises out of an accident that occurred on
the evening of May 20, 1994, in front of Ruth’s Chris Steak
House (Ruth’s) located in Chesterfield County. The
plaintiff, Edna Wood (Wood), and several members of her
family ate dinner at the restaurant that night. After
finishing their dinner, the Wood party prepared to leave
the restaurant. While Wood’s son went to the parking lot
to retrieve his vehicle, Wood and the others waited outside
the restaurant. Wood’s son drove the vehicle into a
circular driveway in front of the restaurant and stopped it
approximately two or three feet from the curb. As Wood
approached the rear door of the stopped vehicle, she
appeared to “step[] into air” and fell down. As a result
of the fall, Wood sustained physical injuries and incurred
medical expenses.
Ruth’s is located in a shopping center that is owned
by defendant Bellgrade Development Company, Inc.
(Bellgrade). Defendant Woolfolk Properties, Inc.
(Woolfolk), is the “managing member” of Bellgrade and
provides property management and maintenance services to
the shopping center.
The curb where Wood fell is a transitional area that
is slanted rather than perpendicular. The transitional
curb between the sidewalk and the circular driveway has a
thirty-degree slope, is eight inches long, and drops four
inches in height from the sidewalk to the driveway. The
sidewalk, transitional curb, and driveway are designed with
varying colors, patterns, and textures of brick in order to
give pedestrians visual clues with regard to the different
surfaces, heights, and grades as they walk from the
driveway onto the sidewalk and into the restaurant.
Although the original design of the restaurant did not
call for the curb to be painted, it had been painted white
sometime prior to the night of Wood’s accident. In 1992,
Charles Lytton, chief executive officer of Woolfolk,
decided that the transitional area should be painted white
for both aesthetic and safety reasons. He testified that
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it was initially an aesthetic idea but that the white paint
also made the curb area more visible. He described the
paint as “an enhancement to visibility.”
On April 22, 1997, Wood filed a motion for judgment
against Woolfolk and Bellgrade alleging that the defendants
negligently owned, operated, and maintained Ruth’s and the
surrounding premises; allowed certain unsafe conditions to
exist on Ruth’s premises; and failed to warn the plaintiff
about these unsafe conditions. Prior to trial, Wood filed
a motion in limine to exclude any evidence regarding the
absence of prior accidents at the curb area where she fell.
Initially, the circuit court sustained the motion.
However, at trial, the court reconsidered its ruling and
allowed Lytton to testify, during cross-examination, that
no one had fallen across the curb line prior to Wood’s
accident. ∗ The court reasoned that the testimony rebutted
the inference that, because of Lytton’s decision to paint
the curb, the defendants had notice of an unsafe condition.
During the cross-examination of Lytton, the court cautioned
the jury that the evidence pertaining to the lack of prior
accidents should be considered only with regard to the
notice issue.
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At the close of Wood’s evidence, the court sustained a
motion to strike with regard to Woolfolk and dismissed it
from this action. The court took the motion under
advisement as to Bellgrade and allowed the case to proceed
to the jury. After deliberating, the jury returned a
verdict in favor of Bellgrade. Wood then moved the court
to set aside the verdict, but the court overruled the
motion and entered judgment in favor of Bellgrade on March
24, 1998.
II.
We granted Wood this appeal on two assignments of
error: (1) that the circuit court erred by allowing the
defendants to introduce evidence regarding the absence of
similar accidents at the curb area prior to Wood’s fall;
and (2) that the court erred by granting the motion to
strike the evidence as to Woolfolk.
We find no merit to the second assignment of error.
The uncontradicted testimony of Wood’s own witness, Lytton,
establishes that Woolfolk managed the shopping center in
which Ruth’s is located and provided maintenance services
for it. Lytton further stated that, when he decided to
have the transitional curb area painted white, he was
__________________
∗
Wood called Lytton as a witness. The defendants
elicited the challenged testimony during their cross-
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acting as an owner of the property and was not performing a
maintenance function. Moreover, the thrust of Wood’s claim
against the defendants was that the curb was dangerous or
unsafe in its design, not in how it was maintained. Thus,
we conclude that the circuit court did not err in granting
the motion to strike with regard to Woolfolk, dismissing it
from this action.
However, we reach a different conclusion with regard
to Wood’s first assignment of error. In addressing that
issue, Bellgrade acknowledges that evidence establishing
the lack of prior, similar accidents is generally not
admissible in a negligence action. Nevertheless, Bellgrade
asserts that this court created an exception to that rule
in Sykes v. Norfolk & Western Ry. Co., 200 Va. 559, 106
S.E.2d 746 (1959).
In that case, this Court allowed the defendant railway
company to introduce evidence as to the number of accidents
that had previously occurred at a particular railroad
crossing. We stated that the rule that “‘evidence of the
absence of other injuries is not admissible when timely
objection is interposed to it’” would be applicable “except
for the fact that the plaintiff had introduced the
testimony of the defendant company’s supervisor of signals
__________________
examination of Lytton.
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that he had recommended to his company that it install
automatic crossing gates and flashers at [the] crossing [in
question].” Id. at 565, 106 S.E.2d at 751 (quoting
Sanitary Grocery Co. v. Steinbrecher, 183 Va. 495, 500, 32
S.E.2d 685, 687 (1945)). The company had never implemented
the recommendation. Although the plaintiff asserted that
the evidence from the supervisor of signals was to prove
that the defendant company had notice of the inadequacy of
the signals, we held “that it . . . [was] permissible for
the defendants to introduce the accident experience at the
crossing to rebut the inference of negligence that might be
made from the failure to follow this recommendation.”
Sykes, 200 Va. at 565, 106 S.E.2d at 751.
Bellgrade argues that its evidence showing the absence
of prior accidents comes within the Sykes exception.
According to Bellgrade, the evidence rebuts the inference
that Lytton directed that the curb be painted white because
he knew that it was an unsafe area. We do not agree.
In Goins v. Wendy’s Int’l, Inc., 242 Va. 333, 410
S.E.2d 635 (1991), the trial court allowed the introduction
of testimony from two restaurant employees that they had
not received any complaints of food poisoning as a result
of the food served on the day that the plaintiff allegedly
consumed contaminated food. We reversed the trial court on
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the basis of the well-established rule that “evidence of
the absence of other injuries is not admissible in a
negligence action when timely objection to it is made”
because it interjects into the trial collateral issues that
confuse and mislead a jury. Id. at 335, 410 S.E.2d at 636.
We further stated that “a departure from the rule would
interject evidence so problematical, due to the potential
for a lack of reporting and the variables of circumstances
and conditions, that such evidence would have slight, if
any, relevancy or probative value.” Id. at 335-336, 410
S.E.2d at 636.
The principles reiterated in Goins apply to the
present case and preclude the introduction of evidence
showing the absence of prior accidents in the area where
Wood fell. Initially, we note that Lytton did not specify
whether he was referring to the period of time before or
after the curb was painted when he stated that no one had
fallen across the curb line prior to Wood’s accident. The
absence of accidents after the area was painted is not
germane to whether Bellgrade had notice of an unsafe
condition and thus painted the transitional area white
because of that knowledge. Furthermore, Lytton’s testimony
is problematical because of the potential that a customer
will not report an accident. Id. Thus, to allow evidence
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concerning the absence of prior accidents in premises
liability cases for the purpose of refuting evidence
showing notice of an unsafe condition would eviscerate the
rule that we restated with approval in Goins.
In addition, the present case is distinguishable from
Sykes. Although the plaintiff in that case offered the
evidence concerning the recommendation by the supervisor of
signals to establish notice of inadequate signals, we
recognized that the evidence created an inference of
negligence because of the failure to follow the
recommendation. Therefore, evidence as to the accident
history at the crossing in question was admissible, not in
regard to the notice issue, but to rebut that inference of
negligence. In the present case, Lytton’s testimony about
the lack of prior accidents is not arguably relevant to any
issue other than notice.
Finally, we do not believe that the introduction of
this evidence was harmless error. It interjected
collateral issues into the trial, and we are unable to say
that it did not confuse or mislead the jury. The
challenged evidence was prejudicial to Wood. See Sanitary
Grocery Co., 183 Va. at 499, 32 S.E.2d at 686-87 (holding
evidence showing absence of prior accidents misleads jury
and is prejudicial).
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Thus, for the reasons stated, we will affirm the
circuit court’s judgment striking the evidence with regard
to Woolfolk and dismissing it from this action. We will
reverse the circuit court’s judgment allowing the
introduction of evidence relating to the absence of prior
accidents and remand for a new trial.
Affirmed in part,
reversed in part,
and remanded.
JUSTICE COMPTON, dissenting in part.
I agree that the trial court correctly granted the
motion to strike the evidence regarding defendant Woolfolk
Properties, Inc. I do not agree, however, that the trial
court erred by allowing evidence regarding the absence of
similar accidents at the curb area prior to plaintiff's
fall.
This case is controlled by Sykes v. Norfolk & W. Ry.
Co., 200 Va. 559, 564-65, 106 S.E.2d 746, 751 (1959). The
majority's argument attempting to distinguish Sykes from
the present case is unpersuasive.
Sykes stands for the proposition that when a plaintiff
presents evidence of a contemplated change by the defendant
in the conditions at the accident scene, in an effort to
show notice of a defective condition, evidence of the
absence of prior accidents at the scene becomes relevant
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and admissible for the limited purpose of showing the lack
of notice. This is precisely the situation in the present
case, and the trial court correctly so ruled.
Consequently, I would affirm the judgment below in all
respects.
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