Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and
Agee, JJ., and Compton, S.J.
CITY OF LYNCHBURG OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 042069 June 9, 2005
JUDY BROWN
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
J. Leyburn Mosby, Jr., Judge
Code § 15.2-1809 creates immunity from liability for
ordinary negligence when a city is sued for personal injury
damages resulting from the maintenance of any park or
recreational facility. The statute provides, however, that a
city shall be liable for gross negligence in the maintenance
of such an area.
The sole question presented in the appeal in this civil
action is whether the trial court erred by refusing to rule as
a matter of law that a city was free of gross negligence under
the facts of this case.
On October 15, 2001, appellee Judy Brown was injured when
she fell from a spectator bleacher at Blackwater Creek
Athletic Park, maintained and operated by appellant City of
Lynchburg. She brought this action against the City alleging
it was grossly negligent in failing to maintain the bleacher
in a safe condition.
Following a jury trial, the court entered judgment on a
verdict in favor of the plaintiff in the amount of $37,500.00.
We awarded the City this appeal to consider the foregoing
issue.
There is little dispute in the evidence. Where there is
conflict and according to settled appellate principles, we
shall consider the facts in the light most favorable to the
plaintiff, who comes to this Court armed with a jury verdict
approved by the trial judge.
The City operates 17 parks covering about 850 acres. One
of the parks is the 20-acre Blackwater Creek Athletic Park,
which includes a lighted softball field.
The bleacher in question was situated along the third
base line of the ball field and was designed to seat about 30
people. The bleacher was free-standing and composed of five
aluminum "risers" used for seating. Each riser was about 12
inches wide and approximately 18 feet long. Beneath the four
uppermost risers were metal strips about six inches wide used
as foot rests.
On the day of the accident, the plaintiff was at the Park
in "the evening" attending a softball game in which her
daughter was participating. "[I]t was dark at that time and
the lights were on."
The plaintiff had "walked over to the bleachers . . .
went up the bleachers" and "sat on the next-to-top seat" to
talk with a friend. After some time, the plaintiff "got up
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from the middle part of the bleachers . . . , walked down the
bleachers sort of diagonally" to her left, "got to the very
last seat on the bleacher, . . . stepped on it and slipped and
fell off the bleacher."
A light pole was casting a shadow across the bleachers
and the plaintiff stepped into that shadow. She said: "I
could see the step, but . . . what I thought was a whole step
ended up not being a whole step. I could see part of that
step; I just assumed all of it was there."
A player's parent and a coach described the condition of
the riser prior to the time the plaintiff fell. The parent
said: "The seating part of the bleachers was bent down on the
ends, and the walk boards were the same way . . . ." The
coach said "that the ends of [the risers] were jagged, the end
caps were missing . . . ."
The evidence was uncontradicted that the City did not
have actual notice of the damaged bleacher seat. Due to the
number and size of the City's recreational facilities, it did
not have employees who worked full time at this Park.
Nonetheless, workers would regularly report to the Park,
perform "litter policing," grass cutting and trimming, and
leaf disposal, and then leave. On the day of the accident,
four employees were at the Park for 20 man-hours performing
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various tasks, including litter removal, and did not notice
the bent bleacher.
The City had a policy of recording reports of damage to
City property or equipment. Any employee who observed a
safety hazard or damage to City property was required to
report it so the deficiency could be corrected. No complaints
of damage to the bleacher were recorded or reported prior to
the incident in question from citizens, employees, or anyone
else.
City employees testified, observing photos taken after
the accident, that if the damaged bleacher had been noticed
prior to the accident, the hazard should have been reported so
that it could have been repaired. The City agreed that the
damage "was open and obvious."
On appeal, the plaintiff argues the trial court correctly
decided that a jury question was presented on whether the City
was guilty of gross negligence. She notes the City "conceded"
a jury could have found on these facts that it should have
known of the damaged bleacher. And, she challenges the City's
position that only actual, not constructive, knowledge will
support a finding of gross negligence.
In effect, the plaintiff contends that a finding of
constructive notice will support such a finding. She says,
"even when the defendant does not admit to seeing what was
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'open and obvious,' under the other circumstances of the case,
it can be found to be grossly negligent for reckless failure
to see what it should have seen."
Alternatively, the plaintiff argues that "[o]n these
facts, a jury could find actual knowledge," because the
evidence placed City employees "on, around, and under the
bleacher" during a six-month period before the incident.
We disagree with the plaintiff's contentions. The
parties debate the applicability of two cases dealing with
accidents at municipal recreational facilities. The plaintiff
relies upon Chapman v. City of Virginia Beach, 252 Va. 186,
475 S.E.2d 798 (1996), while the City argues that Frazier v.
City of Norfolk, 234 Va. 388, 362 S.E.2d 688 (1987), controls.
We agree with the City; this is a Frazier case.
In Frazier, a minor was injured when he fell from the
rear of an orchestra pit to the basement in Norfolk's Chrysler
Hall. At the time, a gap existed between the rear of the pit
and the front of the stage. No barriers or railings were in
place on the rear perimeter of the pit platform.
The city was in violation of its own building code
because railings were not in place on the pit platform.
Additionally, the evidence showed that the city possessed
barriers specifically designed to provide protection against
falls from the pit. Also, two years prior to the incident, a
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child had fallen from the pit to the basement when barriers
were in place.
This Court affirmed the trial court's action in striking
the plaintiff's evidence. We held there was a failure to
establish a prima facie case of gross negligence. Id. at 393,
362 S.E.2d at 691.
In that case, we defined "gross negligence" as "that
degree of negligence which shows an utter disregard of
prudence amounting to complete neglect of the safety of
another. It is a heedless and palpable violation of legal
duty respecting the rights of others." Id. (internal
quotations and citation omitted). It is want of even scant
care and amounts to the absence of slight diligence. Id.
We decided that the "city's failure to install protective
devices or to post warnings at a platform edge which was open
and obvious amounts, at the most, to ordinary negligence and a
failure to exercise reasonable care. Such acts of omission do
not rise to that degree of egregious conduct which can be
classified as a heedless, palpable violation of rights showing
an utter disregard of prudence." Id.
In contrast, the Court in Chapman reversed a trial
court's action in setting aside a verdict for the plaintiff in
a wrongful death action arising from an accident on the
boardwalk at Virginia Beach. The Court held the issue of
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gross negligence was properly submitted to the jury. 252 Va.
at 191, 475 S.E.2d at 801.
In that case, a child died after becoming entangled in a
swinging gate made of metal bars which provided access to the
beach from the boardwalk. The evidence showed that one
section of the two-section gate had been broken for at least
two months before the incident and lay in the sand. This
allowed the standing section to swing freely, contrary to its
normal position of being latched closed and fastened to the
other section. Id. at 188, 475 S.E.2d at 799-800.
City employees had been notified on at least three
occasions prior to the incident that the gate was broken, but
the gate was not repaired. A supervisor in charge of
maintaining the gate made a "deliberate decision" not to order
the gate repaired or secured at the time the reports were made
in the fall because most of the City's maintenance on the
boardwalk " 'is done in the spring prior to the tourist
season.' " Id. at 191, 475 S.E.2d at 801.
In discussing the standard of care, we said: "Deliberate
conduct is important evidence on the question of gross
negligence." Id. at 190, 475 S.E.2d at 801 (internal
quotations and citation omitted). We pointed out: "Under the
City's own operating procedures, the gates were to be closed
unless City employees were performing maintenance functions.
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Despite repeated notices by its own employee, the City did not
take any action. The decision not to take any action was
deliberate." Id. at 191, 475 S.E.2d at 801.
We concluded that "reasonable persons could differ upon
whether the cumulative effect of these circumstances
constitutes a form of recklessness or a total disregard of all
precautions, an absence of diligence, or lack of even slight
care." Id.
In the present case, unlike Chapman, there is no evidence
of deliberate conduct by municipal employees or of a total
disregard of all precautions by them. In this case, like
Frazier, the hazard was open and obvious, and municipal
employees committed acts of omission by failing to observe the
damaged bleacher. This conduct amounted to ordinary
negligence and a failure to exercise reasonable care. It did
not, however, rise to that degree of egregious conduct
classified as a heedless, palpable violation of rights showing
an utter disregard of prudence.
Certainly, as the plaintiff argues, a jury could have
found that the City should have known of the hazardous
bleacher. But, under these facts, that is insufficient,
standing alone, to present a jury issue on gross negligence.
And, we reject the plaintiff's alternative contention that a
jury could find that the City had actual knowledge of the
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defective bleacher. Reasonable persons would have had to
speculate to reach such a conclusion.
Consequently, we hold that the trial court erred in
refusing to rule as a matter of law that the plaintiff failed
to establish the City was guilty of gross negligence. Thus,
we will reverse the judgment appealed from and will enter
final judgment here in favor of the City.
Reversed and final judgment.
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