Present: Carrico, C.J., Compton, Stephenson, 1 Hassell, Keenan, and
Koontz, JJ., and Poff, Senior Justice
PEGGY S. O'BRIEN
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
v. Record No. 962461 September 12, 1997
EVERFAST, INC., ETC.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
The principal issue in this appeal is whether there was
sufficient evidence of negligence by the defendant to support a
jury verdict in favor of the plaintiff. We also consider whether
the verdict should be set aside on the alternative ground that the
plaintiff was contributorially negligent by exposing herself to a
dangerous condition that was open and obvious.
On February 8, 1992, Peggy Sharon O'Brien was shopping at a
Calico Corners fabric store operated by Everfast, Inc., in the
City of Richmond. Fabric at the store was displayed on racks in
bolts rolled around cardboard tubing approximately 60 inches in
length. A bolt of fabric might weigh as much as 50 pounds when
full.
When customers selected a fabric, the bolt would be removed
from the rack and taken to a cutting table where the appropriate
length of fabric could be measured and cut from the bolt.
Everfast instructed its salespersons to replace bolts on the racks
when fabric was not being measured and cut. Although the tables
contained depressions that could hold a bolt of fabric in place,
1
Justice Stephenson participated in the hearing and decision
of this case prior to the effective date of his retirement on July
1, 1997.
these were to be used only to hold bolts from which fabric was
being measured and cut.
Anne Coughenour, another customer at the store, selected four
bolts of fabric and, with the assistance of friends or of an
Everfast employee, removed the bolts from their racks and brought
them to a cutting table. The employee placed the first bolt on
the cutting table. The other three bolts were standing on end
against an adjacent table. A handwritten statement by the
plaintiff concerning the accident stated that the bolts had been
leaned against the table by "[t]he salesperson or customer," and
the word customer had been circled. Coughenour could not recall
who carried the bolts of fabric to the table.
While O'Brien was walking near the table against which the
bolts were leaning, one of the three bolts slid from the table,
striking O'Brien's right heel or foot. As a result of the injury,
O'Brien incurred over $6,300 in medical expenses.
On February 8, 1996, O'Brien filed a motion for judgment
against Everfast seeking $300,000 in damages. In its grounds of
defense, Everfast asserted that O'Brien's injury resulted solely
from her own negligence or that she was contributorially
negligent.
A jury trial was held in the Circuit Court of the City of
Richmond on August 27, 1996. O'Brien presented evidence through
her own testimony and that of Coughenour, as well as that of two
Everfast employees called as adverse witnesses. At the conclusion
of O'Brien's evidence, Everfast declined to put on a defense, and
moved to strike the evidence and for summary judgment in its favor
on the ground that the evidence failed to show that it had
breached any duty owed to an invitee on its premises. The trial
court took the motion under advisement and permitted the case to
be submitted to the jury, which returned a verdict in favor of
O'Brien, awarding her $100,000 in damages.
Everfast renewed its motion to strike and moved to set aside
the jury's verdict, again asserting that the evidence failed to
show that Everfast had breached a duty of care. Expanding on the
argument made at the conclusion of the evidence, Everfast asserted
that O'Brien had failed to show that the employees had actual
knowledge of the dangerous condition created by the bolts being
leaned against the table. Absent sufficient evidence to draw an
inference of such knowledge, Everfast maintained that the jury's
verdict was at best speculative.
By final order dated September 6, 1996, the trial court
sustained Everfast's motion to set aside the verdict and entered
judgment for Everfast. Responding to a motion for reconsideration
and clarification filed by O'Brien, the trial court declined to
revisit its ruling and provided the following basis in support of
its decision:
. . . the court's decision was made immediately after
trial and before its receipt of the defendant's post
verdict motions. The decision was based upon the record
as it existed at the adjournment of trial. . . .
There is no[] evidence of who placed the bolt of
cloth in a position to fall and strike the plaintiff, of
the instrumentality which caused it to fall, how long
the condition existed, that an employee had sufficient
opportunity to observe, appreciate and correct the
condition. There is no evidence upon which negligence
of the defendant could have been determined without
guesswork or speculation. Further, the condition was
open and obvious.
Discussion
We review the trial court's decision sustaining the motion to
strike the evidence and set aside the jury's verdict in accordance
with well-settled principles.
When the sufficiency of a plaintiff's evidence is
challenged by a motion to strike, the trial court should
resolve any reasonable doubt as to the sufficiency of
the evidence in plaintiff's favor and should grant the
motion only when "it is conclusively apparent that
plaintiff has proven no cause of action against
defendant," or when "it plainly appears that the trial
court would be compelled to set aside any verdict found
for the plaintiff as being without evidence to support
it."
Williams v. Vaughan, 214 Va. 307, 309, 199 S.E.2d 515, 517 (1973)
(citations omitted). "A jury issue exists '[i]f there is conflict
of the testimony on a material point, or if reasonably fair-minded
[persons] may differ as to the conclusions of fact to be drawn
from the evidence, or if the conclusion is dependent on the weight
to be given the testimony.'" State Farm Mutual Automobile
Insurance Co. v. Davies, 226 Va. 310, 319, 310 S.E.2d 167, 171
(1983)(quoting Hoover v. J.P. Neff & Son, Inc., 183 Va. 56, 62, 31
S.E.2d 265, 268 (1944)).
"Where the trial court has set aside a jury verdict, that
verdict is not entitled to the same weight as a verdict which has
been approved by the trial court." Kendrick v. Vaz, Inc., 244 Va.
380, 384, 421 S.E.2d 447, 449 (1992). Nevertheless, this Court
will accord the party who received the verdict the benefit of all
substantial conflict in the evidence, as well as all reasonable
inferences that could be drawn therefrom. Fobbs v. Webb Building
Ltd. Partnership, 232 Va. 227, 230, 349 S.E.2d 355, 357 (1986).
However, if a jury necessarily has reached its conclusions based
on speculation and conjecture, the plaintiff's case fails. Id.
Here, the trial court's decision to set aside the verdict
rests principally on its finding that there was insufficient
evidence from which the jury could infer, without resorting to
speculation or conjecture, that Everfast had actual knowledge of
the dangerous condition created by the bolts having been leaned
against the cutting table. We disagree with that decision.
Coughenour and the salesperson both testified that the
salesperson was aware that Coughenour had selected more than one
bolt of fabric. The salesperson further testified that she was
aware of Everfast's policy that she was not to lean bolts against
the cutting tables, that she was to have only one bolt of fabric
at a cutting table, and that she was to return the bolt to its
rack after the fabric was cut from it. This policy was "[f]or
safety and to keep the store neat." Coughenour testified that
while the salesperson was cutting fabric from the first bolt, the
remaining three were leaning against the adjoining cutting table
in plain view. The report of the accident states that the bolt of
fabric which fell and injured O'Brien was leaned against the
cutting table either by "[t]he salesperson or customer." These
facts were sufficient to permit the jury to find, without
resorting to speculation or conjecture, that the salesperson knew
of the potential danger.
The absence of evidence as to what caused the bolt of fabric
to fall would not preclude the jury from finding that O'Brien's
injury resulted from Everfast's negligence. This issue is
substantially identical to one raised in Holcombe v. NationsBanc
Financial Services Corporation, 248 Va. 445, 450 S.E.2d 158
(1994). In Holcombe, the defendant contended that its action of
stacking movable wall partitions in such a way that they might
fall and cause an injury was insufficient to subject it to
liability where the jury would be left to speculate as to what
actually caused the partitions to fall. We held that the
foreseeability of the danger, and not the manner of its actual
occurrence, was the relevant question for the jury to consider in
determining whether the defendant had been negligent. Id. at 448,
450 S.E.2d at 160.
The rationale applied in Holcombe is equally applicable to
the circumstances presented in the record here. Everfast was
clearly aware of the danger presented by having the bolts off the
racks and required its employees to take charge of the bolts when
they were removed from the racks for measuring and cutting. As in
Holcombe, these facts were sufficient to permit the jury to
determine whether the defendant was negligent in permitting the
dangerous condition to exist.
Although not relied upon by Everfast in arguing its motion to
strike, it may be inferred from the trial court's finding that the
danger was open and obvious, that contributory negligence was
relied upon by the trial court in reaching its decision to set
aside the verdict. A business invitee has the duty to be aware of
open and obvious dangers. Tazewell Supply Company v. Turner, 213
Va. 93, 95, 189 S.E.2d 347, 349 (1972). Whether a danger is open
and obvious is usually a jury question. Shiflett v. M.
Timberlake, Inc., 205 Va. 406, 411, 137 S.E.2d 908, 912 (1964).
Several heavy bolts of fabric leaning against a table is not so
remarkable or patent a danger that an invitee unfamiliar with the
nature of the danger posed thereby would naturally seek to avoid
it. Absent clear knowledge by O'Brien of the danger this
condition presented, the jury properly could have found that she
was privileged to browse the display floor without guarding
herself from being struck by a falling bolt of fabric. See Clark
v. Chapman, 238 Va. 655, 667-68, 385 S.E.2d 885, 892-93 (1989).
Since we conclude that the factual issues were properly
submitted to the jury, we will reverse the judgment of the trial
court, reinstate the jury's verdict, and enter final judgment for
the plaintiff on this verdict. 2
Reversed and final judgment.
2
O'Brien also assigned error to the trial court's exclusion of
testimony that similar accidents had occurred in other stores
owned by Everfast. However, the resolution of the principal
issues renders this issue moot.