Franconia Associates v. Clark

Present: All the Justices

FRANCONIA ASSOCIATES, ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 942034 November 3, 1995

ALGERNON CLARK

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge

The primary issue we consider in this appeal from a

judgment in a premises liability action is whether the

plaintiff, who was injured on the defendants' premises,

exceeded the scope of his status as an invitee by pursuing a

robber on those premises.
Algernon Clark filed a motion for judgment against

Franconia Associates, a Virginia limited partnership, and

the Fisher Group, Inc. Franconia Associates owns the

Springfield Mall Shopping Center located in Fairfax County,

and the Fischer Group provides professional management

services at the mall. The plaintiff alleged that he was

injured as he exited through a door at the mall in pursuit

of a robber. The plaintiff also alleged that the defendants

breached certain duties owed to him in failing to inspect,

maintain, and repair the door, and that they failed to warn

him of the dangerous and unsafe condition of the door. The

jury returned a verdict of $120,000 in favor of the

plaintiff, the trial court entered a judgment confirming the

verdict, and we awarded the defendants an appeal.

In accordance with well-settled principles, we will

view the evidence and all reasonable inferences it raises in

the light most favorable to the plaintiff, who comes to this

Court with a favorable jury verdict, confirmed by the trial
court.

The plaintiff was employed at a hair stylist shop

located in Springfield Mall. One afternoon as the plaintiff

was standing in front of the shop, the manager of a

restaurant in the mall told the plaintiff, "[t]hat guy just

robbed me. Stop him." The robber ran and exited the mall.

As the plaintiff was running in pursuit of the robber, the

plaintiff approached a glass door in the mall. The

plaintiff, still running, slowed down to push open the door.

As the plaintiff went through the door, it closed very

rapidly, hitting his leg, thereby rupturing his Achilles

tendon.
The plaintiff and defendants agree that the plaintiff

was an invitee immediately before he began to chase the

robber. The defendants contend, however, that as a matter

of law, the plaintiff exceeded the scope of his status as an

invitee and became a trespasser because he "voluntarily

undertook a dangerous venture solely for the purpose of

rescuing a non-party's money." Therefore, the defendants

assert that because the plaintiff was a trespasser, they are

liable only for injuries caused by their "willful and wanton

acts." The plaintiff argues that he retained his status as

an invitee under the facts and circumstances of this case.

The owner of premises is not an insurer of his

invitee's safety. Rather, the owner must use ordinary care

to render the premises reasonably safe for the invitee's

visit. Holcombe v. NationsBanc Financial Services, 248 Va.

445, 448, 450 S.E.2d 158, 160 (1994); Tate v. Rice, 227 Va.
341, 345, 315 S.E.2d 385, 388 (1984); Gumenick v. United

States, 213 Va. 510, 515, 193 S.E.2d 788, 793 (1973); Knight

v. Moore, 179 Va. 139, 146, 18 S.E.2d 266, 270 (1942). The

owner's duty, however, "does not extend to places beyond the

invitation and to which the invitee is not reasonably

expected to go." City of Suffolk v. Hewitt, 226 Va. 20, 24,

307 S.E.2d 444, 446 (1983).

By contrast, the duty that a property owner owes to a

trespasser or bare licensee is limited.
Speaking generally, the duty owing by the
owner 'to a trespasser on his premises is to do
him no intentional or wilful injury.' There must
be such notice of the trespasser's danger as would
put a prudent man on the alert before the duty of
protection arises.

So also with respect to a bare licensee (that
is to say one who is permitted by the passive
acquiescence of the owner to come on his premises
for his own convenience). 'He takes upon himself
all the ordinary risks attached to the place and
the business carried on there.' The owner must
not intentionally or wilfully injure him, but he
owes him the active duty of protection only after
he knows of his danger, or might have known of it
and avoided it by the use of ordinary care.

Appalachian Power Co. v. LaForce, 214 Va. 438, 441, 201

S.E.2d 768, 770 (1974) (quoting Lunsford v. Colonial Coal

Co., 115 Va. 346, 348-49, 79 S.E. 348, 349 (1913)). In

Pettyjohn & Sons v. Basham, 126 Va. 72, 79-80, 100 S.E. 813,

815 (1919), we observed: "Usually, an invitation will be

inferred where the visit is of common interest or mutual

advantage to the parties, while a license will be inferred

where the object is the mere pleasure or benefit of the

visitor."

Here, we hold that the plaintiff did not exceed the
scope of his status as an invitee. The plaintiff's pursuit

of the robber on the defendants' premises was an activity

which conferred a benefit upon the defendants. Certainly,

such act was not for pleasure or benefit of the plaintiff.

Additionally, it is not unreasonable that the defendants may

expect that an invitee would undertake such an act on their

premises. Furthermore, the plaintiff was not injured by

chasing the robber; rather, the plaintiff was injured by the

defective condition of defendants' door.
The defendants assert that even if the plaintiff was an

invitee, "[t]here was no evidence of actual knowledge by the

Mall of any dangerous condition" and, therefore, the

plaintiff failed to present a prima facie case against them.

The plaintiff argues that the evidence of record is

sufficient to show that the defendants did have notice of

the defective condition of their door.

In Roll "R" Way Rinks v. Smith, 218 Va. 321, 327, 237

S.E.2d 157, 161 (1977), we stated:
[I]n order to hold the owner of property
liable for injuries sustained by an invitee due to
the unsafe condition of the premises, it must be
shown that the owner had knowledge of the alleged
unsafe condition, or that it had existed for such
a length of time as to make it the owner's duty in
the exercise of ordinary care to have discovered
it.

See Cannon v. Clarke, 209 Va. 708, 712, 167 S.E.2d 352, 355

(1969).

Steven Wayne Johnson, a postman, had entered

Springfield Mall on numerous occasions and used the door

that is the subject of this litigation. He testified that

about "a couple [of] weeks" before the plaintiff's injury,
"if you opened the door to a certain point . . . halfway or

not quite halfway, there was some tension on the door, and

if you pulled it anymore, it would spring back." Johnson

also testified that he had observed patrons of the mall who

experienced difficulty using the same door. Brian Embrey,

one of the defendants' maintenance employees, testified that

he checked the door twice each week and that he had

performed repair work on the door before the plaintiff was

injured. We are of opinion that this evidence, taken in the

light most favorable to the plaintiff, is sufficient to

permit the jury to find that the defendants had, at the very

least, constructive knowledge that the door closed too

rapidly.
Next, the defendants argue that the plaintiff was

guilty of contributory negligence as a matter of law. The

defendants assert that "[r]unning through a door is reckless

behavior regardless of the reason for running. Running

through a door when there is no compelling necessity to do

so is even more reckless."

Normally, whether a plaintiff is guilty of contributory

negligence is a jury issue unless reasonable minds could not

differ. Holland v. Shively, 243 Va. 308, 311, 415 S.E.2d

222, 224 (1992); Artrip v. E.E. Berry Equipment Co., 240 Va.

354, 358, 397 S.E.2d 821, 823 (1990). As we have stated,

"[t]he essence of contributory negligence is carelessness

and involves an objective test, i.e., whether a plaintiff
failed to act as a reasonable person would have acted for

his own safety under the circumstances." Id., 397 S.E.2d at
823-24. Here, the trial court properly instructed the jury

on the issue of the plaintiff's alleged contributory

negligence. And, there is ample evidence of record to

support the jury's finding that the plaintiff was not guilty

of contributory negligence. Thus, we will not disturb that

finding on appeal.

The defendants assert that "[t]he door could not have

hit Clark as he says it did." We find no merit in the

defendants' contention. The plaintiff testified: "As I was

running down the hallway, I slowed down to push the door. I

put both hands up. I pushed with my left hand, and I

stepped out with my left foot, and before I could get all

the way out the door, the next thing I know I heard a boom,

and I was looking at the pavement." While on the pavement,

the plaintiff saw the door "balancing" against his right

leg. We cannot say, as a matter of law, that the

plaintiff's testimony regarding how his injuries occurred

was either "inherently incredible, contrary to human

experience or to the laws of nature." Simpson v. Broadway-

Manhattan Taxicab Corp., 203 Va. 892, 897, 128 S.E.2d 306,

310 (1962).

Next, the defendants contend that the trial court erred

by admitting the testimony of the plaintiff's expert, Alan

R. Funk. The defendants assert that Funk's testimony was

improperly admitted because "[the testimony] was premised on

the assumption of a fact which was not in evidence, namely,

that the door was used in a normal manner by [the

plaintiff]" and "Mr. Funk's opinion is not based on any
specialized knowledge of door operation beyond the ken of

laymen, but merely on his evaluation of Clark's version of

events." The plaintiff contends that the trial court did

not err by admitting Funk's testimony.

Funk is the president and owner of Atlantic Door

Control, Inc., a distributor for sales, service, and

installation of automatic and manual door closers. He was

president and activities chairman of the Door & Hardware

Institute, a professional organization for the door hardware

industry. He was qualified as an expert witness on the

subject of doors without objection from the defendants.

Funk opined that the door which caused the accident did not

operate properly because it closed too rapidly. Funk also

opined that the speed at which the door is opened should not

affect the speed at which the door would close.
Contrary to the defendants' contention, we hold that

Funk's opinion was admissible because, according to Funk,

the fact that the plaintiff was running when he pushed the

door open would not have affected the speed at which the

door, if properly operating, would have closed. The trial

court did not abuse its discretion by permitting Funk to

render this opinion because his testimony could "assist the

trier of fact to understand the evidence or determine a fact

in issue." Code § 8.01-401.3; see also Swiney v. Overby,

237 Va. 231, 233, 377 S.E.2d 372, 374 (1989).

The defendants also contend that the trial court erred

by admitting in evidence the testimony of Dr. Ruben D.

Cabrera, the plaintiff's orthopedic surgeon. The defendants
assert that Dr. Cabrera had no medical foundation for his

opinion on the cause of the plaintiff's injury. We find no

merit in the defendants' argument.

Dr. Cabrera testified, within a reasonable degree of

medical certainty, that the plaintiff suffered a complete

tear or rupture of his Achilles tendon when the door hit his

leg. Dr. Cabrera, who performed the surgery to repair the

plaintiff's Achilles tendon, based his opinion upon the

medical history that he had taken from the plaintiff and an

examination of the plaintiff's leg. Therefore, we hold that

the trial court did not abuse its discretion by admitting

this opinion in evidence. See Swiney, 237 Va. at 233, 377

S.E.2d at 374.

For the foregoing reasons, we will affirm the judgment

of the trial court.

Affirmed.