Present: All the Justices
LINDA CHAPMAN, ET AL.
v. Record No. 951969 OPINION BY JUSTICE ELIZABETH B. LACY
September 13, 1996
CITY OF VIRGINIA BEACH
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
In determining whether the trial court properly set aside a
jury verdict and entered judgment in favor of the City of
Virginia Beach in this wrongful death action, we consider issues
relating to public nuisance, operation of a recreational
facility, admission of expert testimony, gross negligence, and
contributory negligence.
On December 15, 1991, Linda Chapman took her three children
to the oceanfront Breakers Hotel in the City of Virginia Beach to
visit relatives who were renting an apartment in the Hotel.
Eight-year-old Missy and her three-year-old sister, Carolyn, went
unaccompanied down to the boardwalk to play. Mrs. Chapman
watched Missy and Carolyn from a window in the apartment. She
saw Carolyn sitting on top of a section of a gate mounted on the
boardwalk railing. Missy was pushing the gate section so that it
would swing while Carolyn sat on it.
The gate was constructed by the City to allow maintenance
vehicles to access the beach from the boardwalk. In its normal
condition, the gate consisted of two sections, each hinged on one
end to the boardwalk railing and fastened together on the other
end with a metal latch. Each gate section had two nearly
horizontal metal bars which tapered from their widest point at
the boardwalk railing to the middle where the sections met.
Sometime prior to October 1991, one section of the gate, the
south section, had broken from its hinges and lay in the sand
below the boardwalk. The other section of the gate, the north
section, remained secured at one end to the boardwalk railing.
Missy was pushing Carolyn on the north section of the gate as it
swung from the boardwalk over the sand.
At some point, Missy's head became entrapped between the two
metal bars in the north section of the gate. When the gate swung
out over the sand, Missy's feet could not touch the ground and
she was left hanging by her neck. A jogger discovered Missy and
notified a nearby hotel clerk. The hotel clerk attempted to
resuscitate Missy, and the rescue squad was called. Missy was
transported to the hospital but had suffered severe brain damage.
Two days later, on December 17, 1991, Missy was pronounced dead.
Missy's parents, Linda and Donald Chapman, as co-
administrators of Missy's estate, filed a wrongful death action
against the City, alleging simple negligence, gross negligence,
and nuisance. The trial court struck the nuisance count and held
that, pursuant to Code § 15.1-291, the City was only liable for
gross negligence. The trial court also granted the City's
contributory negligence instruction with regard to Linda Chapman.
The jury returned a $300,000 verdict in favor of Missy's
father only and $18,618.79 for funeral expenses and medical
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bills. The City filed a motion to set aside the jury verdict,
arguing that, as a matter of law, the evidence was insufficient
to establish gross negligence. The trial court granted the
City's motion and entered judgment in favor of the City.
The Chapmans appealed, assigning error to the trial court's
actions in striking the nuisance count, holding that the
boardwalk was a recreational facility requiring a showing of
gross negligence to impose liability on the City under § 15.1-
291, holding as a matter of law that the evidence was
insufficient to prove gross negligence, failing to set aside the
verdict because it did not compensate all the statutory
beneficiaries, and granting the contributory negligence
instruction regarding Linda Chapman. The City assigned cross-
error to the admission of certain expert testimony. We awarded
an appeal on all assignments of error and the assignment of
cross-error.
I. RECREATIONAL FACILITY
The trial court held that the boardwalk is a recreational
facility and therefore, pursuant to § 15.1-291, 1 the City could
1
Section 15.1-291 states:
No city or town which shall operate any bathing beach,
swimming pool, park, playground, skateboard facility, or
other recreational facility shall be liable in any civil
action or proceeding for damages resulting from any injury
to the person or property of any person caused by any act
or omission constituting simple or ordinary negligence on
the part of any officer or agent of such city or town in
the maintenance or operation of any such recreational
facility. Every such city or town shall, however, be
liable in damages for the gross or wanton negligence of any
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only be liable for acts which constituted gross negligence. The
Chapmans assert that this was error because the boardwalk is a
street or a sidewalk, not a recreational facility. We disagree
with the Chapmans.
The boardwalk is an area which stretches along a
considerable portion of the City's beach. It is designed for
recreational use, whether to access the beach itself or as a
promenade for walking along the beach. Neither assigning the
maintenance responsibility to the City's department of highways
nor allowing vehicles to drive on the boardwalk to perform their
maintenance functions transforms the nature of the facility from
a place of recreation to a street. Accordingly, we will affirm
the trial court's holding that the boardwalk is a recreational
facility as that term is used in § 15.1-291.
II. GROSS NEGLIGENCE
The Chapmans next complain that the trial court erred in
setting aside the jury verdict based on its holding that, as a
matter of law, the actions of the City did not constitute gross
negligence. Gross negligence has been described as the "utter
disregard of prudence amounting to complete neglect of the safety
of its officers or agents in the maintenance or operation
of any such recreational facility.
(continued. . .)
(. . .continued)
The immunity created by this section is hereby
conferred upon counties in addition to, and not limiting
on, other immunity existing at common law or by statute.
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of another." Frazier v. City of Norfolk, 234 Va. 388, 393, 362
S.E.2d 688, 691 (1987). "It is a heedless and palpable violation
of legal duty respecting the rights of others" which amounts to
the "absence of slight diligence, or the want of even scant
care." Town of Big Stone Gap v. Johnson, 184 Va. 375, 378, 35
S.E.2d 71, 73 (1945) (citations omitted). Several acts of
negligence which separately may not amount to gross negligence,
when combined may have a cumulative effect showing a form of
reckless or total disregard for another's safety. Kennedy v.
McElroy, 195 Va. 1078, 1082, 81 S.E.2d 436, 439 (1954).
Deliberate conduct is "important evidence on the question of
gross negligence." Id. Whether gross negligence has been
established is usually a matter of fact to be decided by a jury. 2
Frazier, 234 Va. at 393, 362 S.E.2d at 691.
In reviewing the action of the trial court here, the
Chapmans, having received a favorable jury verdict, are entitled
to the benefit of all substantial conflicts in the evidence and
all fair inferences which can be drawn from the evidence. Mann
v. Hinton, 249 Va. 555, 557, 457 S.E.2d 22, 23 (1995). The jury
verdict should be reinstated if there is any credible evidence to
2
The City also argues that it cannot be held liable because
the injury was not foreseeable and it had no duty to keep the
gate closed. These arguments are unpersuasive in this case. No
foreseeability instruction was offered and the City raised no
objection and, the City need not foresee the precise nature of
the injury, only that some injury might probably result. See
Panousos v. Allen, 245 Va. 60, 66, 425 S.E.2d 496, 499-500
(1993).
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support it. Id.
The record in this case shows that all the gates on the
boardwalk, like the gate in issue, were supposed to be kept
closed except when city personnel opened them to perform
maintenance tasks. William Lonnie Gregory, supervisor of the
city department in charge of maintaining the gate, was informed
on at least three occasions prior to Missy's accident that the
gate was broken. These reports were made by Wayne Lee Creef, the
employee charged with inspecting and reporting maintenance
problems in the resort area of the City. The first report
followed an event called the Neptune Festival, an event held at
the end of September. A second oral report was made in October.
In the early or middle part of November, Creef again reported
the broken gate. He put this report in writing, "assuming that
it was going to be a work order put into effect."
Gregory had the authority to schedule and initiate repair of
the gate but did not direct that any immediate action be taken in
response to Creef's reports. Gregory made a deliberate decision
not to order that the gate be repaired or that the north section
be secured at the time the reports were made because "most of the
maintenance work that [the City does] on the boardwalk is done in
the spring prior to the tourist season."
Based on this record, we conclude that the trial court erred
in setting aside the jury verdict. The accident occurred in an
area constructed and maintained by the City as a recreational
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facility. The purpose of such an area is to attract visitors of
all ages to come to and enjoy the facility, in this case, the
beach and boardwalk. Under the City's own operating procedures,
the gates were to be closed unless City employees were performing
maintenance functions. Despite repeated notices by its own
employee, the City did not take any action. The decision not to
take any action was deliberate. On this record, 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. Accordingly, the issue was properly submitted
to the jury, there was credible evidence to support the jury
verdict, and the trial court erred in setting aside the jury
verdict. This determination does not end the matter, however; we
next consider the City's assignment of cross-error.
III. EXPERT TESTIMONY
The City contends that the trial court erred when it
admitted the expert opinion testimony of Shelly Deppa. Deppa was
offered as a "human factors psychologist" and testified that the
physical properties, configuration, and unsecured condition of
the gate section created a hazard and that it was reasonably
foreseeable that a child's head could become entrapped in the
gate section. The City maintains that this testimony did not
assist the trier of fact and should not have been admitted as
expert opinion testimony. We agree.
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It was within the common knowledge of the jury that the area
was a recreational area that attracted children and the evidence
introduced at trial showed the size of the opening between the
two metal bars in the gate section. Whether the condition of the
gate section created a dangerous condition and whether it was
reasonably foreseeable that an injury could occur as a result of
the gate's condition were issues within the range of common
experience. The admission of expert testimony is inappropriate
for matters of common experience. Board of Supervisors v. Lake
Servs., Inc., 247 Va. 293, 297, 440 S.E.2d 600, 602 (1994).
In light of this holding, the case must be remanded for a
new trial. While it is not necessary to address whether the
verdict incorrectly was limited to recovery by the father, two
other issues raised by the Chapmans may arise on remand and,
therefore, we will address those assignments of error.
IV. NUISANCE
Count IV of the Chapmans' motion for judgment asserted a
cause of action based on nuisance. Following conclusion of the
evidence, the trial court struck this count, and submitted the
case to the jury solely on the negligence count. The trial court
concluded that the failure to properly maintain the gate, the
basis for the negligence count, also was the basis for the
nuisance count. Thus, the trial court held, the nuisance count
actually was a negligence cause of action. The Chapmans assert
that this was error and we agree.
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Negligence and nuisance are distinct legal concepts. A
cause of action for public nuisance is based on a claim of injury
resulting from a condition which is dangerous to the public.
Taylor v. City of Charlottesville, 240 Va. 367, 372, 397 S.E.2d
832, 835 (1990). 3 While negligent acts may give rise to the
dangerous condition, the acts themselves do not constitute a
nuisance.
Contrary to the trial court's conclusion that the reliance
on negligent acts defeated the nuisance count, we conclude that a
finding of negligence is one of the two alternative prerequisites
required to impose liability on a city in a nuisance cause of
action. Cities can be held liable for damages resulting from a
nuisance only if the condition claimed to be a nuisance was not
authorized by law or the act creating or maintaining the nuisance
was negligently performed. Taylor, 240 Va. at 373, 397 S.E.2d at
836; City of Virginia Beach v. Virginia Beach Steel Fishing Pier,
Inc., 212 Va. 425, 427, 184 S.E.2d 749, 750-51 (1971). Reliance
on negligent acts under these circumstances does not transform
the nuisance cause of action into a negligence cause of action.
Accordingly, the trial court erred in striking the Chapmans'
nuisance count on the ground that the alleged negligence
precluded a nuisance count.
3
Although the City argued that the gate was not "dangerous
and hazardous in itself" and that the gate "simply" was not a
nuisance, it did not assign error to the trial court's failure
to dismiss the nuisance count because, as a matter of law, the
gate did not constitute a public nuisance.
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The City also argued that § 15.1-291 applies to any
negligence associated with the maintenance or operation of a
recreational facility and thus is applicable to actions for
nuisance. The trial court did not expressly rule on this issue.
Under these circumstances, the issue is not ripe for resolution
in this appeal, and we decline to address the City's argument in
this regard.
V. CONTRIBUTORY NEGLIGENCE
Finally, the Chapmans assign error to a jury instruction
regarding contributory negligence. The City argues that it was
entitled to the instruction because Mrs. Chapman was negligent
when she allowed the children to play unsupervised without
protection or any means of rescuing them from harm. She saw her
children swinging on the gate and neither attempted to stop them
nor to secure the gate. Therefore, the City concludes that,
based on this evidence, the jury was entitled to determine
whether Mrs. Chapman was contributorily negligent. We disagree.
A parent has a duty to exercise ordinary care for the
child's safety, City of Danville v. Howard, 156 Va. 32, 36, 157
S.E. 733, 735 (1931), but this duty does not impose an absolute
requirement that a parent oversee and guide a child's activities
every moment. Thus, in a case in which a seven-year-old child
was killed darting across a highway to his mother after a school
bus passed, we rejected "out of hand" the contention that a
contributory negligence instruction was supported by the
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evidence, stating that "[t]he law does not impose upon parents
the absolute duty to provide children . . . with escort service
to and from a school bus stop." Bickley v. Farmer, 215 Va. 484,
488, 211 S.E.2d 66, 69 (1975). Similarly, we rejected a claim
that a mother was contributorily negligent when her eleven-year-
old son was struck by a truck unloading coal, because she failed
to keep the boy in the house during the unloading of the coal.
P.L. Farmer, Inc. v. Cimino, 185 Va. 965, 971, 41 S.E.2d 1, 4
(1947).
The evidence in this case is also insufficient to support an
instruction on contributory negligence. The record shows that
the Chapmans were frequent visitors to the Breakers. Mrs.
Chapman's aunt and uncle had lived in an apartment in the
Breakers from September through April each year for a number of
years. Mrs. Chapman went there "at least two or three times a
week" to prepare meals and visit and took her children with her.
During these visits, Missy and Carolyn often played on the
boardwalk and were familiar with it.
The record also reflects that on the day of the accident,
Mrs. Chapman was watching her daughters from a window of the
apartment. She saw them feeding the sea gulls and saw Missy
pushing Carolyn on the gate. She turned away for "just a couple
of minutes" and, when she looked back, she saw a man, the hotel
clerk, standing with Missy. Fearing that Missy would be
kidnapped or otherwise harmed, Mrs. Chapman screamed and ran out
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of the building to the boardwalk. The jogger who found Missy
testified that only a "couple of minutes" passed between the time
she saw Missy and returned to the gate with the hotel clerk.
Mrs. Chapman did not have an absolute duty to stand next to
her eight-year-old daughter every moment. Missy was familiar
with the area and Mrs. Chapman's supervision of her was
reasonable under the circumstances. Accordingly, we find that
the evidence does not support a contributory negligence
instruction.
For the foregoing reasons, we will reverse the judgment of
the trial court and remand the case for further proceedings
consistent with this opinion.
Reversed and remanded.
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