PRESENT: All the Justices
CITY OF RICHMOND
v. Record No. 011742 OPINION BY JUSTICE BARBARA MILANO KEENAN
June 7, 2002
JUNNE-ANNE HOLT
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
In this appeal of a judgment in favor of a plaintiff in a
personal injury action, the primary issue is whether the
evidence was sufficient to establish constructive notice to a
municipality of a defect in a municipal right-of-way adjoining a
public street.
We state the evidence in the light most favorable to the
plaintiff, Junne-Anne Holt, the prevailing party in the trial
court. Tashman v. Gibbs, 263 Va. 65, 68, 556 S.E.2d 772, 774
(2002); City of Bedford v. Zimmerman, 262 Va. 81, 83, 547 S.E.2d
211, 212 (2001). At a jury trial, the evidence showed that Holt
sustained injuries when she fell after stepping into a hole in a
"grassy area" located near the curb of a public street. The
grassy area was within the boundaries of a right-of-way
adjoining the street, and was owned and controlled by the City
of Richmond (the City).
About 9:00 p.m. on October 28, 1997, Holt left her church
at the intersection of Oakland Avenue and Columbia Street. She
crossed Oakland Avenue and walked along Columbia Street to
return to a car driven by her friend, Evelyn Hyde, who had taken
Holt to church. Because there was no "off-street" parking
available for those attending the church, Hyde parked her
vehicle one block from the church on Columbia Street.
The church was located on a city block that was bordered by
a paved sidewalk. Although the adjacent block where Hyde parked
her vehicle did not have a paved sidewalk, a crosswalk connected
the two blocks for use by pedestrians crossing Oakland Avenue.
This crosswalk led directly to the grassy area along the curb of
the block where Hyde parked her vehicle.
It was dark outside as Holt walked along Columbia Street to
Hyde's vehicle. Holt was holding in her arms her ten-month-old
grandson, her coat, her purse, and a diaper bag.
Holt walked in front of Hyde's car and stepped onto the
grassy area alongside the curb to enter the vehicle through a
passenger-side door. As Holt entered the grassy area, she
stepped into a hole and fell to the ground. The hole was four
to six inches deep and covered Holt's foot up to her ankle. The
hole had some grass growing in it and was located about two to
five feet away from the curb. As a result of her fall, Holt
sustained various injuries, including fractures to both her
legs.
Holt filed a motion for judgment against the City alleging,
among other things, that she was injured as a result of the
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City's negligence. At trial, she testified that she had
attended church in the same location for about 15 years, and
that she was not aware of the hole before her fall. Holt stated
that she never parked on the side of the street where the hole
was located. She further testified that when she stepped into
the hole she was not looking "[a]nywhere in particular."
Erika L. Holliday, a member of Holt's church for about 19
years, testified that church members regularly walked in the
grassy area where the hole was located when they parked along
that section of Columbia Street. Holliday stated that she
personally observed a person trip "over the hole" between eight
months and one year before Holt's fall. Holliday further
testified that the hole could not be seen in the dark because it
was shallow and grass had begun to grow in the hole. She stated
that the hole resulted from the removal of a mailbox at that
location between three and five years before Holt's fall.
Barbara J. Welch, who also attended Holt's church,
testified that both her children had tripped and fallen in the
hole two or more years before Holt fell. Welch stated that the
hole "had grass on it, and you really didn't know it was there
until you got there." She also stated that the church members
regularly walked over the grassy area where the hole was
located.
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Ray Bohannon, the Maintenance and Claims Examiner for the
City's Department of Public Works, testified that the City did
not have any procedures for routinely inspecting its sidewalks
and pathways. He also testified that the City provided
maintenance to Oakland Avenue and Columbia Street because they
are public streets. At the conclusion of Holt's case, the City
made a motion to strike the evidence, which the trial court took
under advisement.
The City presented the testimony of Ethel A. Williams, who
had attended Holt's church for about 25 years. Williams
testified that she occasionally parked her vehicle near the area
where Holt fell, and that she had not seen the hole before
Holt's accident. Williams also testified that a public mailbox
was previously located in the general area where Holt fell.
After resting its case, the City renewed its motion to
strike the evidence. At that time, the following exchange
occurred between the City's counsel and the trial court:
THE COURT: I'll take it under advisement. Your
motion is that they haven't proved notice
or any reason to know of the condition;
right?
COUNSEL: And we don't agree that this area–in this
area, there was the kind of duty to–
THE COURT: I assume that. Now, you have your record
clear.
COUNSEL: Yes, sir.
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THE COURT: Your motion is taken under advisement.
The jury returned a verdict in favor of Holt, awarding her
damages in the amount of $125,000 plus interest from the date of
the accident. The City moved to set aside the verdict on
various grounds, including that the evidence was insufficient to
show that the City had constructive notice of the hole. The
trial court denied the motion and entered judgment on the jury
verdict. The City appeals from this judgment.
The City first argues that the evidence was insufficient as
a matter of law to support the jury verdict. The City contends
that Holt failed to prove that 1) the grassy area where Holt
fell was intended by the City for use as a public way by
pedestrians, and 2) the City had either actual or constructive
notice of the hole where Holt fell.
In response, Holt argues that the City failed to preserve
for appeal the issue whether the City intended the grassy area
to be used by pedestrians as a public way. On the issue of
notice, Holt concedes that the City did not have actual notice
of the hole, but contends that the evidence regarding
constructive notice was sufficient to present a question for the
jury's consideration. We agree with Holt's arguments.
A municipality is required to exercise reasonable care to
maintain in "a safe condition for passage such public ways as
are opened and intended by the municipality for general use, and
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over which the municipality exercises or may exercise full
control, for their entire width. The invitation on the part of
the municipality to use such ways imposes the obligation." City
of Norfolk v. Travis, 149 Va. 523, 528-29, 140 S.E. 641, 642
(1927); see also Votsis v. Ward's Coffee Shop, Inc., 217 Va.
652, 654, 231 S.E.2d 236, 237 (1977); Dockery v. City of Norton,
204 Va. 752, 754, 133 S.E.2d 296, 298 (1963); Wray v. Norfolk &
W. Ry. Co., 191 Va. 212, 221, 61 S.E.2d 65, 70 (1950). However,
before a municipality can be held liable for injuries resulting
from a defect in the condition of a public way, the municipality
must have actual or constructive notice of the particular defect
that gave rise to the injury. City of Virginia Beach v. Roman,
201 Va. 879, 882-84, 114 S.E.2d 749, 752-53 (1960); West v. City
of Portsmouth, 196 Va. 510, 513-15, 84 S.E.2d 503, 505-07
(1954); Travis, 149 Va. at 534-35, 140 S.E. at 644; see
Commonwealth v. Coolidge, 237 Va. 621, 623-24, 379 S.E.2d 338,
340 (1989).
We conclude that the City failed to preserve for appeal the
issue whether the City intended the grassy area where Holt fell
to serve as a public way for pedestrians. First, in its motion
to strike made at the conclusion of Holt's evidence, the City
did not raise this issue. Second, at the end of its own case,
the City asked that the evidence be struck because Holt failed
to prove that the City had notice of the defect where she fell.
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The City's counsel also stated, "And we don't agree that this
area—in this area, there was the kind of duty to—" This
statement, however, did not inform the trial court that the City
considered the evidence insufficient as a matter of law to show
that the grassy area was intended by the City to serve as a
public way for pedestrians. Thus, the above statement by the
City's counsel was insufficient to preserve the City's argument
for appeal. See Rule 5:25.
We also observe that after the City failed to argue that
the evidence was insufficient as a matter of law to show that
the grassy area was intended for use as a public way by
pedestrians, the City effectively agreed to submit this issue
for the jury's consideration when it agreed to Instruction
No. 7. That instruction provided that the jury was required to
return its verdict for Holt if she proved, among other things,
"that the place of such defective condition was intended by the
City as a public way for the use of pedestrians." Therefore,
under the law of the case, this issue was properly before the
jury for its determination.
We next consider whether the evidence was sufficient to
establish that the City had notice of the hole where Holt fell.
Because Holt concedes that the City did not have actual notice,
we consider only the evidence of constructive notice relating to
that defect.
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A municipality has constructive notice of a defect in a
public way adjoining a street when the defect has existed for
such a period of time that the defect could have been discovered
by the exercise of ordinary care. See Roman, 201 Va. at 884,
114 S.E.2d at 753; Erle v. City of Norfolk, 139 Va. 38, 40, 123
S.E. 364, 364 (1924); 19 Eugene McQuillin, The Law of Municipal
Corporations §§ 54.109 to .110 (3d ed. rev. vol. 1994). Thus,
to establish constructive notice, a plaintiff ordinarily must
prove that the defect causing the injury existed over a length
of time sufficient to establish that "reasonable diligence"
would have led to its discovery. See Roman, 201 Va. at 883, 114
S.E.2d at 752; West, 196 Va. at 514, 84 S.E.2d at 506; City of
Portsmouth v. Houseman, 109 Va. 554, 562-64, 65 S.E. 11, 14-15
(1909); 19 McQuillin, supra, §§ 54.109 to .110.
In the present case, the hole where Holt fell was clearly
visible in several photographs of the grassy area admitted into
evidence. The hole was located a few feet from the curb within
the public street right-of-way in an area that witness Holliday
described as "well-traveled," and that witness Welch
characterized as "regularly used" by church members.
A crosswalk established by the City led directly to the
grassy area and, thus, implicitly invited pedestrians to use
that area as a public way. Also, at the curb adjoining the
grassy area, public parking was permitted. Persons entering and
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exiting vehicles through doors situated next to the curb were
required to step into the grassy area. Despite the regular
usage of this area by the public for pedestrian travel, the City
did not conduct any routine inspections for defects or hazards
at that location.
The evidence also established that the hole was between
four and six inches deep and of such a size that Holt's foot
sank into the hole up to her ankle. Although there was evidence
that some grass growing in the hole partially obscured it from
observation, Holliday and Welch both stated that the hole could
be seen if one looked directly down to the ground where the hole
was located.
According to Welch, the hole had existed for two or more
years before Holt's fall. The apparent source of the hole was
the removal of a mailbox at that location. Thus, the jury could
have concluded that the hole was of such a size that the City
could have discovered the defect by the exercise of reasonable
diligence at any time over a two-year period. Based on the
above evidence, and the reasonable inferences deducible from
that evidence, we conclude that the evidence of constructive
notice was sufficient to raise a question for the jury's
determination.
The City argues, nevertheless, that Holt was guilty of
contributory negligence as a matter of law. We do not reach the
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merits of this issue, because the City did not move to strike
Holt's evidence on this ground and agreed that the issue of
Holt's negligence should be submitted to the jury.
During discussion of the City's proposed jury instruction
addressing the issue of contributory negligence, Holt's counsel
asked, "What was the evidence of contributory negligence?" The
City's counsel responded, "[Holt] never bothered–she wasn't
looking anywhere in particular. I think the jury can clearly
find this." Based on this statement, the instruction tendered
by the City, and the City's failure during trial to assert that
Holt was guilty of contributory negligence as a matter of law,
we conclude that the City waived this argument for purposes of
appeal. * See Rule 5:25.
For these reasons, we will affirm the trial court's
judgment.
Affirmed.
*
The City also challenges the trial court's rulings
concerning certain jury instructions. We do not reach the
merits of the City's argument regarding the court's decision to
grant Instruction No. 13, to refuse Instruction N, and to modify
Instruction L, which was given to the jury as Instruction
No. 12. The City failed to state an objection with reasonable
clarity regarding these instructions. See Rule 5:25. Although
the City objected to the trial court's refusal of Instruction G,
the trial court did not err in refusing this instruction because
the principles set forth therein were adequately addressed by
three other instructions, namely, Instruction Nos. 1, 7, and 12.
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