Virginia Electric & Power Co. v. Dungee

Present: All the Justices

VIRGINIA ELECTRIC AND POWER COMPANY

v. Record No. 982485 OPINION BY JUSTICE ELIZABETH B. LACY
September 17, 1999
JAMES DUNGEE, A MINOR, ETC.

FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY
Thomas B. Hoover, Judge

James A. Dungee, a minor (James or the plaintiff), by his

next friend, filed a motion for judgment against Virginia

Electric and Power Company (Virginia Power) seeking damages

for burns he sustained while he was in a Virginia Power

substation and came in contact with 13,200 volts of

electricity. James alleged that Virginia Power was negligent

in failing to properly install, maintain, and inspect the

fence surrounding the substation. Virginia Power denied that

it was negligent and asserted the affirmative defenses of

contributory negligence and assumption of risk. A jury

returned a verdict in favor of James in the amount of

$20,000,000. The trial court denied Virginia Power's motion

to set aside the verdict or order remittitur and entered

judgment on the jury's verdict. Virginia Power filed an

appeal assigning error to a number of rulings of the trial

court. Because we find no error in these rulings, we will

affirm the judgment of the trial court.

I. Facts and Material Proceedings
 At the time of the accident, James was a 10-year-old boy

who had just completed the fourth grade. According to the

testimony of Ella Langford, a clinical social worker, and Dr.

Thomas K. Tsao, a child psychiatrist, James suffered from

attention deficit hyperactivity disorder (ADHD). Langford

testified that ADHD is characterized by impulsivity,

inattention, distractibility, and hyperactivity. She also

testified that at the time of the accident, James was in the

childhood development stage commonly referred to as "latency,"

which she described as the stage when children learn to make

decisions about their safety and cease to need to be watched

constantly by their parents. She testified that the latency

stage is influenced by ADHD because teachers' and parents'

instructions to the child concerning limitations on what he

should or should not do often do not register in the child's

mind.

Dr. Tsao testified that James had above average

intelligence but that his intelligence, as well as his

perception, maturity, and judgment were impaired by ADHD.

James lived in an apartment complex in the City of

Richmond. Next to the outdoor common area for the complex was

an electric substation owned and operated by Virginia Power.

The substation was surrounded by a chain-link fence

approximately six-feet high and topped with a one-foot

2
extension of three strands of barbed wire. The gate to the

fence was locked at all times. Signs on the fence stated

"Danger High Voltage." Earl Maxwell, a resident of the

apartment complex, testified that in the year prior to the

accident, he had observed no warning signs on any of the

equipment inside the substation. He testified that, on the

side of the substation facing the apartment complex, there

were two or three "gaps" or holes under the fence which were

large enough for a child to crawl through.

Over a month before the accident, Captain Timothy Zack,

an officer in the United States Army who lived in an apartment

overlooking the substation, told a Virginia Power employee

working at the substation that he had seen children playing in

the substation. Captain Zack also showed the Virginia Power

employee one of the holes or gaps under the fence and warned

that "somebody is going to get injured."

A Virginia Power substation inspector, Edwin Lee

Thompson, testified that he inspected the substation two weeks

before the accident. He saw "kids and stuff" around the

substation and gaps between the bottom of the fence and the

ground on the side of the substation facing the apartment

complex. Thompson, however, did not report the holes and

testified that they were not large enough for a "person" to

get through.

3
 On July 21, 1996, James and two of his friends, Ken

McMickens and Kevin Clayton Adams, Jr., were playing with a

ball in the common area. Ken and Kevin were 9 and 11 years

old, respectively. While they were playing, the ball went

over the fence surrounding the substation. There is

conflicting testimony as to what occurred after that.

James testified that he crawled under the fence at one of

the holes or gaps between the bottom of the fence and the

ground while Kevin helped him by holding the fence up. Kevin

testified that James entered the substation by climbing on top

of a green cable box near the fence, placing his hands and one

foot on the fence and "leap[ing]" over the top. According to

Ken, James did not use the green cable box, but climbed up the

fence using his hands and feet, stood on the barbed wire, and

then jumped down. Captain Zack was working on his car nearby

at the time of the accident. He testified that he saw a boy

climb under the fence as another boy moved the fence "back and

forth."

James testified that he does not remember what he did

once he entered the substation. Ken testified that James

"started touching wires and he went over to the power surge

and he touched — he climbed on something and touched

something, and we seen a bright light and he was laying on the

ground." Kevin testified that James touched some wires that

4
did not affect him but then went and touched another wire,

whereupon it "started electrocuting him with one hand, and he

tried to pull it off."

Ken testified that he told James not to enter the

substation because he could get electrocuted, and that once

inside the substation James asked, "'You all dare me to touch

this wire over here[?]'"

Kevin first testified that he said nothing to James

before James entered the substation and that James did not

suggest a dare to anyone. He testified that the only

conversation he had with James occurred when he told James

that he "might get hurt" when James was about to touch "some

high voltage [wires]," to which James replied, "'No, you're

lying.'" Later, after having been read testimony from his

deposition, Kevin agreed that, prior to James' entering the

substation, he told James to "'Hurry up and get out'" and

that, once inside, James said, "'You dare me to touch the

wires?'" Kevin further agreed that after James first touched

the wires and was not hurt, James said, "'I'm going to touch

that one,'" to which Kevin replied, "'No, James, it's going to

electrocute you,'" to which James responded, according to

Kevin, "'No, man, you don't know what you're talking about.'"

Captain Zack testified that he could hear what the

children were saying, and that he did not hear any of the

5
children give any warnings or any child asking to be dared to

do anything.

Kevin's father, Kevin Clayton Adams, Sr., testified that

he heard a loud bang and saw a puff of smoke inside the

substation. He climbed the substation's gate and ran to

James' body. He testified that James' eyes and hair were

burnt, that his shoes were just about melted, and that skin

fell off of James' body onto Mr. Adams' clothes as he carried

James out of the substation. He testified that James was

conscious and began screaming before he set him down.

James received third degree burns over 25% of his body

including his face, chest, and arms. He was treated at no

charge at the Shriners Hospital. Surgical procedures to

restore skin lost as a result of the accident have left

permanent scarring and disfigurement and will require future

surgical procedures and extensive physical and psychological

therapy.

In the motion for judgment, James alleged that Virginia

Power, as a producer of electricity, owed a high degree of

care for the safety of those persons coming into contact with

the substation. The motion for judgment also alleged that

Virginia Power had actual or constructive knowledge that

children regularly played in or around the substation, and

that Virginia Power negligently erected, maintained, and

6
inspected the fence in violation of its duty of care and in

violation of recognized industry standards. James sought

$750,000,000 in compensatory damages and $750,000,000 in

punitive damages but later dropped the punitive damage claim.

The motion for judgment was filed in Charles City County.

Virginia Power filed a motion to transfer venue to the City of

Richmond, which the trial court denied. During a five-day

trial, the jury heard the testimony of twenty witnesses and

returned a verdict in favor of James. Virginia Power appealed

assigning error to a number of the trial court's rulings,

including the denial of Virginia Power's motion for a change

of venue, refusal to find the plaintiff contributorially

negligent as a matter of law, refusal to give Virginia Power's

offered jury instruction on the duty owed to a trespasser, the

inclusion of the term "maturity" in jury instructions on

contributory negligence, refusal to allow certain expert

testimony, and refusal to set aside the verdict or award

Virginia Power remittitur. We consider these issues in order.

II. Venue

Virginia Power first assigns error to the trial court's

denial of its motion to transfer the action from Charles City

County to the City of Richmond. Virginia Power contends that

although Charles City County is a permissible venue under Code

§ 8.01-262(3) because it conducts business there, application

7
of the principles set out in Norfolk & Western Railway Co. v.

Williams, 239 Va. 390, 389 S.E.2d 714 (1990), required that

the action be transferred because Charles City County has no

practical nexus with the litigation. We disagree.

For negligence cases, among others, the Code of Virginia

provides a plaintiff with a choice of forums in which an

action can be brought. Code § 8.01-262. However, Code

§ 8.01-265, the so-called forum non-conveniens statute, allows

the transfer of any action, even if it was originally filed in

a proper venue, to "any fair and convenient forum" in the

Commonwealth upon a motion by the defendant and "for good

cause shown." Code § 8.01-265. "Good cause" under the

statute includes, but is not limited to, "the avoidance of

substantial inconvenience to the parties or the witnesses."

Id. Whether to grant such a motion is within the discretion

of the trial court, and the trial court's denial of the motion

will not be reversed absent an abuse of that discretion.

Williams, 239 Va. at 392, 389 S.E.2d at 715.

To secure a change in venue, Virginia Power had the

burden of showing that there was good cause to transfer the

case from Charles City County to the City of Richmond. In

ruling on Virginia Power's motion, the trial court considered

the impact on the witnesses and parties of holding the trial

in Charles City County, as compared with holding it in

8
Richmond. It concluded that traveling thirty miles to Charles

City County from Richmond imposed minimal cost and

inconvenience on those parties and witnesses who lived in

Richmond, and that holding the trial in Charles City County

would not impose any material inconvenience on witnesses

coming from other areas of the country because the Richmond

airport is located midway between Richmond and Charles City

County. The court also concluded that there was no evidence

that overnight stays in Charles City County would be required

for those witnesses who lived in Richmond. Based on these

factors, the trial court concluded that traveling thirty miles

imposed minimal inconvenience and that there was no showing of

substantial inconvenience to the parties or witnesses.

Virginia Power argues that the test for good cause is not

exclusively substantial inconvenience. According to Virginia

Power, our decision in Williams established that "a trial

court abuses its discretion under Va. Code § 8.01-265 if it

declines to transfer venue from a forum with no practical

nexus to the cause of action to a more convenient forum with a

strong nexus." We agree with Virginia Power that Code § 8.01-

265 does not limit the definition of "good cause" to "the

avoidance of substantial inconvenience to the parties or the

witnesses;" however, we disagree with Virginia Power's

characterization of our holding in Williams.

9
 The plaintiff in Williams was an employee of a railroad

company based in Roanoke. He was injured when he fell from a

chair in his office in Roanoke. He filed a personal injury

action against the railroad company in Portsmouth, a

permissible venue. The information before the trial court

relevant to the question of transfer was that all the

witnesses were from Roanoke and they all "faced the

inconvenience of being away from families, homes, and jobs

while traveling to Portsmouth to testify, . . . ." 239 Va. at

395, 389 S.E.2d at 717. Given the location of the parties and

witnesses as well as the accident itself, we concluded that

the litigation had "no practical nexus" with Portsmouth but

had "a strong nexus" with Roanoke. Id. at 396, 389 S.E.2d at

717. However, contrary to Virginia Power's contention, the

degree of the "nexus" does not alone provide the good cause

required for transfer under the statute.

In Williams, we stated that the circumstances to be

considered when ruling on motions to transfer venue included

accessibility of sources of proof, compulsory process, cost of

witness attendance, possibility of a view of the premises, and

other "practical problems," in addition to the statutory

ground of avoiding substantial inconvenience to the parties

and witnesses. Id. at 393, 389 S.E.2d at 716. We concluded

that the trial court abused its discretion in failing to

10
transfer the action to Roanoke, not simply because Portsmouth

had "no practical nexus" with the action, but because the

railroad company met its burden of presenting "sufficient

information to show good cause to transfer, including

substantial inconvenience to the parties and witnesses" and

other factors. Id. at 396, 389 S.E.2d at 718. This holding

does not support the construction Virginia Power advocates -

that transfer is required based solely on the lack of a

practical nexus of the venue with the litigation. We thus

reject Virginia Power's argument on this issue.

Finding that the trial court did not abuse its

discretion, we will affirm the trial court's denial of

Virginia Power's motion to transfer venue.

III. Contributory Negligence

At the close of the evidence and in post-trial motions,

Virginia Power sought a ruling by the trial court that the

plaintiff was contributorially negligent as a matter of law.

Virginia Power assigns error to the trial court's denial of

these motions.

Virginia Power's burden to establish contributory

negligence as a matter of law begins with the requirement that

it rebut the presumption that a child between the ages of 7

and 14 does not have the capacity to understand the peril and

dangers of his acts and is, therefore, legally incapable of

11
committing acts of negligence. Norfolk & Portsmouth R.R. v.

Barker, 221 Va. 924, 929-30, 275 S.E.2d 613, 616 (1981). This

presumption can be rebutted by showing that the plaintiff did

have the capacity to understand the peril. Endicott v. Rich,

232 Va. 150, 156, 348 S.E.2d 275, 279 (1986). 1 Once the

presumption was rebutted, Virginia Power had the burden to

make the traditional showing that the plaintiff's conduct

amounted to contributory negligence. Id. This requires

application of the objective reasonable person test, as

modified for children. The evidence must show that the

plaintiff's conduct did not conform to the standard of what a

reasonable person of like age, intelligence, and experience

would do under the circumstances for his own safety and

1
The test for rebutting the presumption focuses on the
individual plaintiff. While the opinion in Doe v. Dewhirst,
240 Va. 266, 268, 396 S.E.2d 840, 842 (1990), discusses the
issue whether a reasonable person of like age, intelligence,
and experience would understand the danger of his conduct
under the same or similar circumstances, the holding in
Dewhirst correctly states the test as whether the minor in the
pending case had the capacity to understand the danger. This
test has been followed in other cases. See Barker, 221 Va. at
930, 275 S.E.2d at 616 (stating test whether child plaintiff
"had the capacity to understand the danger his conduct
entailed"); Endicott v. Rich, 232 Va. at 156, 348 S.E.2d at
279 ("In order to rebut the presumption that Endicott was
incapable of negligence, Rich was required to establish that
in light of Endicott's age, intelligence, and experience,
Endicott was capable of understanding and appreciating the
nature of the danger and the peril associated with his
conduct.") In the present case, jury instruction number 11
set forth the correct test for determining the plaintiff's

12
protection. Barker, 221 Va. at 929, 275 S.E.2d at 616. Of

course, the evidence must also show that the negligent conduct

by the plaintiff was a proximate cause of his injury. Wright

v. Norfolk & Western Ry. Co., 245 Va. 160, 170, 427 S.E.2d

724, 729 (1993). Finally, to support the finding as a matter

of law, the evidence must be such that reasonable persons

could not disagree that the presumption has been rebutted and

that the plaintiff was contributorially negligent. See Loving

v. Hayden, 245 Va. 441, 444, 429 S.E.2d 8, 10 (1993).

The presumption that a child between the ages of 7 and 14

is incapable of contributory negligence can be overcome by the

plaintiff's own testimony showing that he had the capacity to

understand the perils presented, or in fact understood them,

Barker, 221 Va. at 929-30, 275 S.E.2d at 616; however, there

was no such testimony in this case. While plaintiff testified

that he knew he was not supposed to go into the substation, he

testified that the reason he was not supposed to go there was

because his mother told him not to play in an area where she

could not see him. Unlike the testimony in the Barker case,

the testimony here was insufficient to establish that

plaintiff was capable of appreciating the danger of this

conduct. Therefore, we must look beyond the plaintiff's

capacity to understand the danger for purposes of rebutting
the presumption.

13
testimony for other evidence of the plaintiff's capacity to

understand the danger and peril of his conduct to rebut the

presumption.

Virginia Power argues that the presumption was rebutted

as a matter of law by the evidence that the plaintiff asked

his friends to "dare" him to touch the wires in the substation

even though his friends warned him of the dangers of his

conduct. This statement, Virginia Power asserts, shows that

the plaintiff had the capacity to understand and, in fact, did

understand the "danger of his own conduct." Virginia Power

also argues that the plaintiff's capacity to understand the

danger was shown by the evidence that he was of above average

intelligence, had passed every grade in school, scored at or

above average on standardized tests, and had been taught the

dangers of electricity in school. Furthermore, Virginia Power

refers to the testimony of the plaintiff's friends that they

understood the danger of the plaintiff's conduct. This

evidence, Virginia Power asserts, both rebuts the presumption

and supports the proposition that "reasonable minds cannot

differ that [p]laintiff's conduct was negligent." We

disagree.

First, the evidence of what the plaintiff and his friends

said and did was not confined to the testimony of Ken, Kevin,

and the plaintiff. Captain Timothy Zack testified that,

14
although he could hear the boys, he not only did not hear them

warn the plaintiff, he also never heard the plaintiff ask his

friends to dare him to do anything while he was in the

substation. Second, the record also shows that the testimony

of Kevin and Ken conflicted in some areas and was internally

inconsistent in others. For these two reasons, their

testimony cannot be considered uncontradicted. Finally, the

record contains evidence that the plaintiff suffered from ADHD

and that this disorder had a delaying effect on the

plaintiff's development and maturation process and, thus, that

James' ability to understand danger may not have been equal to

that of other boys his age.

Virginia Power also asserts the principle that a

plaintiff who has been expressly "warned" and who ignores

those warnings is barred from recovery by his own contributory

negligence, citing cases involving adults and cases involving

children. 2 Virginia Power argues that the presumption was

rebutted and that the plaintiff was shown to have been

contributorially negligent as a matter of law in this case

2
Barker, 221 Va. at 924, 275 S.E.2d at 613; Sadler v.
Lynch, 192 Va. 344, 64 S.E.2d 664 (1951); Brickell v. Shawn,
175 Va. 373, 9 S.E.2d 330 (1940); Williams v. Virginia
Electric & Power Co., 173 Va. 179, 3 S.E.2d 365 (1939);
Templeton's Administrator v. Lynchburg Traction and Light Co.,
110 Va. 853, 67 S.E. 351 (1910); Seaboard & Roanoke Railroad
Co. v. Hickey, 102 Va. 394, 46 S.E. 392 (1904); McDaniel's

15
because the evidence showed that the plaintiff ignored

"vigorous and specific danger warnings."

However, the cases cited by Virginia Power do not support

the principle that a finding of contributory negligence

necessarily follows when there is evidence that a warning was

given. In each of the cases cited, the plaintiff was warned

not to engage in a specific act, the warning was understood by

the plaintiff, and in spite of the specific warning, the

plaintiff performed the act and was harmed as a result of that

act.

The evidence of those elements in this case is, at best,

in conflict. The testimony of the plaintiff's friends that

they warned him when he was in the substation is in conflict

with Captain Zack's testimony that, while he could hear the

boys talking, he never heard them warn the plaintiff of any

danger.

There also was some conflict in the evidence as to what

acts proximately caused the injuries the plaintiff sustained.

Ken testified that the plaintiff was injured when he "touched

something." However, Dr. H. D. Peterson, Virginia Power's

witness, testified that the plaintiff's injuries were

"flashover" burns, rather than a transmission injury.

Administratrix v. Lynchburg Cotton Mills, 99 Va. 146, 37 S.E.
781 (1901).

16
According to Dr. Peterson, a flashover burn is a "flame burn

from an electrical short" that "[s]ometimes it sets your

clothes on fire" and that at other times "just the heat from

the ball of fire will do all the burning." A transmission

injury, Dr. Peterson explained, involves touching high voltage

wires, allowing the current to enter the body, go through it,

and exit the body. Dr. Peterson testified that the plaintiff

did not have any such entrance or exit injuries on his body.

In light of the conflicting evidence in this record,

particularly regarding the evidence necessary to rebut the

presumption and establish that the plaintiff had the capacity

to understand the dangers of the situation, we conclude that

the issue of contributory negligence was a matter for the

jury. We therefore hold that the trial court was correct in

refusing to find that the plaintiff was contributorially

negligent as a matter of law.

Virginia Power's assignments of error also include a

claim that the trial court erred in not finding that the

plaintiff had assumed the risk as a matter of law. Virginia

Power does not make a separate argument on this issue, but in

a footnote, citing High v. Coleman, 215 Va. 7, 205 S.E.2d 408

(1974), Virginia Power claims that the evidence relating to

the warnings plaintiff received and his alleged statement

17
challenging his friends to dare him to touch wires on the

transformer established assumption of risk as a matter of law.

In High, however, we stated that the doctrine of

assumption of risk requires showing: (1) that the nature and

extent of the risk are fully appreciated; and (2) that the

risk is voluntarily incurred. 215 Va. at 8, 206 S.E.2d at

409-10; see Amusement Slides Corp. v. Lehmann, 217 Va. 815,

818-19, 232 S.E.2d 803, 805 (1977); see also Young v. Lambert,

253 Va. 231, 241, 482 S.E.2d 823, 825 (1997); Norfolk &

Western Rwy. v. Hodges, 248 Va. 254, 263, 448 S.E.2d 592, 596

(1994); Philip Morris Inc. v. Emerson, 235 Va. 380, 402, 368

S.E.2d 268, 280 (1988). In this case, as we have discussed,

there was conflicting evidence regarding the plaintiff's

capacity to understand the warnings and thus to know or fully

appreciate the risk inherent in his conduct. We therefore

hold that the trial court correctly denied Virginia Power's

motion to find that the plaintiff had assumed the risk as a

matter of law.

IV. Jury Instructions

Virginia Power assigns error to the trial court's

granting of two jury instructions regarding the issue of

contributory negligence and the trial court's denial of its

proposed instruction on the duty owed a trespasser by a

landowner. We consider these assignments of error in order.

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 1. Contributory Negligence Instructions

Jury Instruction 11 informed the jury that a child

between 7 and 14 years of age is presumed incapable of being

contributorially negligent. It instructed the jury that

"[t]his is a rebuttable presumption, and you may find the

plaintiff contributorially negligent, if you find by the

greater weight of the evidence, considering the plaintiff's

age, intelligence, maturity and experience, that the plaintiff

could understand and appreciate the nature of the danger and

the peril associated with his conduct." In Instruction 12,

the jury was told that the conduct of a minor is to be

measured by "that degree of care which a reasonable person of

the same age, experience, maturity and intelligence would

exercise under the circumstances of this case."

Virginia Power complains that the trial court erred when

it included "maturity" as one of the elements in these

instructions because "this Court's recent, unambiguous

holdings" in this area have included only three factors – age,

intelligence, and experience. In support of this position,

Virginia Power quotes from Doe v. Dewhirst, 240 Va. 266, 268,

396 S.E.2d 840, 842 (1990), and cites Carson v. LeBlanc, 245

Va. 135, 427 S.E.2d 189 (1993); Endicott, 232 Va. 150, 348

S.E.2d 276; and Barker, 221 Va. 924, 276 S.E.2d 613.

19
 The three factors listed above consistently appear in the

opinions upon which Virginia Power relies. However, the

assertion that the language of a specific opinion dictates the

content of a jury instruction from which no deviation is

possible is at odds with our often-repeated caution that

language in an opinion is meant to provide a rationale for a

decision — and may not translate immutably into jury

instructions. See Blondel v. Hays, 241 Va. 467, 474, 403

S.E.2d 340, 344 (1991); Brown v. Commonwealth, 238 Va. 213,

221, 381 S.E.2d 225, 230 (1989); Oak Knolls Realty v. Thomas,

212 Va. 396, 397-98, 184 S.E.2d 809, 810 (1971).

The language relied on by Virginia Power referring to

age, experience, and intelligence was recited by the Court in

Barker in the context of the objective test for negligence.

Explaining the operation of that test when applied to

children, the Court in Barker went on to say:

Ordinarily, a less degree of care is required of an
infant than an adult, but his responsibility is
always to be measured according to his maturity and
capacity, and determined by the circumstances of the
case as shown by the evidence. (Citations omitted)
Va.-Car. Ry. Co. v. Clawson, 111 Va. 313, 316, 68
S.E. 1003, 1004-05 (1910).

221 Va. at 929, 275 S.E.2d at 616. Thus, "maturity" has been

used to describe the various factors to be considered when

determining whether conduct of a minor is negligent. Indeed,

this Court in Gough v. Shaner, 197 Va. 572, 577-78, 90 S.E.2d

20
171, 175-76 (1955), specifically approved a jury instruction

regarding the negligence of a 13-year-old which contained

"maturity" as one of the elements to be considered. 3 See

Carlton v. Martin, 160 Va. 149, 155, 168 S.E. 348, 349-50

(1933), and cases cited therein.

Virginia Power does not discuss any of these cases,

presumably because its argument is that this Court's "most

recent" cases do not list "maturity" as a factor to be

considered. Based on that omission, Virginia Power concludes

that the absence of the word "maturity" reflects a considered

decision to eliminate maturity as a factor in cases such as

these. The basis for such omission, Virginia Power surmises,

is that to include "maturity" transforms the test from an

objective test to a subjective one. This is so, Virginia

Power argues, because unlike age, experience and intelligence,

which they claim are concretely measurable, maturity is a

subjective factor. We disagree.

3
The jury instruction approved in that case stated:

And if the jury believe from the evidence in this
case that there was no regular seat provided for him
upon said motorcycle and that in riding on said
motorcycle under those circumstances plaintiff's
decedent, taking into account his age, general
intelligence, maturity and experience, knew, or in
the exercise of reasonable care for his own safety
should have known, of the danger in so doing, then he
was guilty of negligence.

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 First, to adopt Virginia Power's position requires us to

draw a line between cases "recently" decided and those of more

ancient vintage and ignore the latter. Moreover, in the

absence of a discussion, the omission of a single factor from

a series of factors alone is insufficient to support the

conclusion that the omission indicates a change in the law.

Furthermore, we reject Virginia Power's assertion that

the addition of the word "maturity" transformed the objective

test for negligence into a subjective test. The difference

between an objective and subjective test, in the context of

negligence, is that, in an objective test, the actor's conduct

is measured against what a reasonable person would do in

similar circumstances, regardless of that particular actor's

individual feelings, thoughts, perceptions, or prejudices. In

a subjective test, by contrast, the actor's actual knowledge

and perception is the ultimate issue.

The test for negligence is always objective. With

adults, all of whom are presumed by the law to have adequate

experience, intelligence, and maturity to act reasonably, the

objective test is normally stated simply in terms of the

reasonably prudent person. With children, however, the law

recognizes not only that they are not mature, but that not all

children develop and mature at the same rate. We, therefore,

197 Va. at 574-75, 90 S.E.2d at 174.

22
have repeatedly stated that a child's actions are to be judged

in relation to his age, experience, intelligence, and

maturity. Barker, 221 Va. at 929, 275 S.E.2d at 616; Grant v.

Mays, 204 Va. 41, 45, 129 S.E.2d 10, 13 (1963).

While these factors require a greater focus on the

characteristics of the individual whose actions are in

question, and while the focus on that individual's

characteristics becomes greater with the addition of every

factor to be included, consideration of these factors does not

transform the test into a question of what the actor actually

knew and perceived, and thus does not transform the test from

an objective to a subjective one. The test remains objective

because the fact finder still must determine what a reasonable

person with like characteristics would do in similar

circumstances.

Having the jury consider plaintiff's maturity in

determining the reasonableness of his conduct is in line with

the general proposition that a child's actions are to be

measured in light of the child's age and experience. While we

do not require or suggest that the element of maturity be

included in jury instructions in all cases, we believe the

trial court did not err in including that element for

consideration in the jury instructions in this case.

23
 Accordingly, we reject Virginia Power's assertion that

the trial court erred in including the word maturity in the

instructions on contributory negligence, Instructions 11 and

12.

2. Trespass Instruction

The trial court refused to give a jury instruction

offered by Virginia Power which stated that if the plaintiff

was a trespasser, Virginia Power's only duty was "to do him no

intentional or willful injury" (trespass instruction).

Virginia Power assigns error to the trial court's denial of

this trespass instruction, contending that the trial court's

stated reason for refusing it was erroneous and arguing that

refusing the trespass instruction "improperly imposed a higher

duty of care on Virginia Power."

Virginia Power first argues that the trial court rejected

the trespass instruction because the trial court erroneously

believed that it did not apply in cases involving children.

The source of this argument is the following statement made by

the trial court in the course of the discussion on whether to

grant the trespass instruction:

I'm going to do this, right or wrong, over the
defendant's objection. The tendered instruction about
trespassing is refused because this child — this case
being a child, that trespass instruction does not apply.

24
However, as discussed below, a fair and complete reading of

the record does not support Virginia Power's assertion that

the trial court rejected the trespass instruction solely

because it concluded that such an instruction does not apply

in cases involving children.

When the trial court began consideration of the trespass

instruction, the plaintiff indicated that he intended to offer

another instruction which he claimed "negated" Virginia

Power's trespass instruction. Plaintiff's instruction was

based on the principle discussed in Daugherty v. Hippchen, 175

Va. 62, 65-66, 7 S.E.2d 119, 120-21 (1940), that an owner of a

dangerous instrumentality who knows or should know that

children would be playing in the area of the instrumentality

owes a proper degree of care to such children, even if the

children are trespassers (the dangerous instrumentality

instruction). Virginia Power responded that the rule as

stated in its trespass instruction applies to children as well

as adults and that Daugherty was distinguishable and does not

apply in this case. The trial court rejected Virginia Power's

arguments attempting to distinguish Daugherty and suggested a

single instruction that would inform the jury both of the

general rule of a land owner's duty to a trespasser and of the

exception to that rule as discussed in Daugherty. Virginia

25
Power adamantly objected to any changes or additions to its

trespass instruction.

Plaintiff and Virginia Power then engaged in a lengthy

exchange with the trial court regarding the substance of a

single instruction on these subjects but could not reach any

agreement. Virginia Power rejected a "combined instruction"

offered by the plaintiff which would have included Virginia

Power's proposed trespass instruction and the dangerous

instrumentality instruction, steadfastly maintaining that it

was entitled to its trespass instruction "stand[ing] alone."

Unable to persuade Virginia Power to alter its proposed

trespass instruction to conform to the trial court's view of

the law under the circumstances of this case, the trial court

denied the trespass instruction as proposed by Virginia Power

and made the statement quoted above.

This review of the record shows that the dispute over the

trespass instruction centered not on whether the trespass

instruction applied to children per se, but on whether the

principle set out in Daugherty applied in this case and, if

so, how to craft an instruction which would accurately reflect

both that principle and the duty of care owed to a trespasser.

The trial court determined that, considering the evidence, the

principle expressed in Daugherty was applicable. In light of

Virginia Power's continued objection to adding any language

26
which would incorporate the principles stated in Daugherty,

the trial court finally rejected the trespass instruction as

offered. A complete review of the record thus reveals that

the trial court did not refuse the trespass instruction on the

sole ground that it simply did not apply to children, and we

accordingly reject Virginia Power's argument that it did so.

Virginia Power next argues that the trespass instruction

should have been given as offered because it does apply to

children in general and to the plaintiff in this case.

Daugherty is distinguishable, Virginia Power contends, and the

trial court should not have attempted to incorporate it into

the trespass instruction.

We agree with Virginia Power that a child trespasser can

be subject to the general rule for the duty of care by

landowners to trespassers; however, we also agree with the

trial court that Daugherty was applicable under the facts of

this case and that instructing the jury on the duty to

trespassers as proposed by Virginia Power would have given the

jury an inaccurate and incomplete instruction on the law.

In Daugherty, an eight-year-old boy was injured when he

took some blasting caps from a shed in the back yard of the

home his family leased from the owner of the shed. The owner

knew that children played in the yard. Neither the box

holding the blasting caps nor the door to the shed was locked.

27
The defendant asserted, as Virginia Power does here, that he

was not liable for the child's injuries because the child was

a trespasser and stole the blasting caps. The Court in

Daugherty rejected this position, stating:

There may be cases of trespassers who are
not entitled to a recovery for injuries sustained
from explosives while unlawfully on the premises
of another unless wantonly inflicted, but this
rule has no application where children of
immature years are concerned. The courts throw a
safeguard around such children to protect them in
their childish instincts from the dangerous
nature of explosives of which they have no proper
understanding. This is especially true where the
keeper of explosives knows, or should know, that
children of tender years play or are likely to
play around the storehouse. Liability may exist
where a child of tender years is involved and not
exist in the case of a child of more mature
years.
The general rule seems to be that, even if
an immature child is a trespasser, one who stores
explosives or has control of other dangerous
instrumentalities is not relieved of the duty of
exercising a proper degree of care for his
protection. If the one who keeps explosives is
negligent in leaving them in a place accessible
to children who he knows or should know are
accustomed to play nearby, the fact that the
child is a trespasser will not relieve the owner
from liability. The same is true as to other
dangerous instrumentalities.

175 Va. at 65-66, 75 S.E.2d at 120-21. The evidence in this

case implicated the principles quoted above, and, thus, we

cannot say that the trial court abused its discretion in

rejecting the trespass instruction as it was offered by

Virginia Power.

28
 Virginia Power raises a number of other arguments in

support of its position that its trespass instruction should

have been given, none of which, however, require reversal of

the trial court's ruling. First, Virginia Power points to the

fact that plaintiff proposed a combined instruction on

trespass and the dangerous instrumentality principles and

asserts that the plaintiff thereby conceded that Virginia

Power was entitled to the trespass instruction. However, as

discussed above, plaintiff's "concession" was qualified by his

position that the trespass instruction had to be modified to

take into account the principles expressed in Daugherty.

Next, Virginia Power argues that the trial court erred

because it not only refused to give the trespass instruction

but also gave "instructions that improperly imposed a higher

duty of care on Virginia Power." Virginia Power is apparently

referring to Instruction 4 which instructed the jury that

Virginia Power, as a producer of electricity, was required to

"use a high degree of care commensurate with the danger

involved to prevent injury to others." According to Virginia

Power, such "mis-instruction clearly prejudiced" Virginia

Power by imposing a "greater duty upon Virginia Power than was

appropriate in this case," requiring, at a minimum, a new

trial. We disagree.

29
 Virginia Power did not argue in the trial court and does

not assert now that Instruction 4 was an inaccurate statement

of the law. The only objection made to Instruction 4 at trial

was that it should not be given without the trespass

instruction.

However, Virginia Power's claim of prejudice fails by

virtue of Virginia Power's actions in offering Instruction 6,

referred to by the parties as "the joint instruction."

Following the impasse reached on the trial court's request for

an amended trespass instruction, the plaintiff and Virginia

Power jointly offered Instruction 6, which told the jury that

Virginia Power was negligent if it did not comply with the

National Electrical Safety Code in operating, constructing, or

maintaining the substation, or if Virginia Power had notice of

circumstances at the substation making it reasonably
4
foreseeable that the plaintiff would enter the substation.

4
Instruction 6 stated:

To establish that Virginia Power was negligent,
Plaintiff must prove by a preponderance of the evidence
that Virginia Power's methods of constructing, operating,
or maintaining the Q Substation were not in accordance
with the National Electrical Safety Code, or that
Virginia Power had notice of circumstances at Q
Substation such that it was reasonably foreseeable that
Plaintiff would enter Q Substation.
If you find that Virginia Power met the National
Electrical Safety Code and that Virginia Power did not
have notice of circumstances at Q Substation such that it
was reasonably foreseeable that Plaintiff would enter Q

30
 First, this instruction allowed the jury to find Virginia

Power negligent, without regard to any standard of care,

simply upon a finding that specific facts existed – non-

compliance with the National Electrical Safety Code or notice

of certain circumstances, and that these conditions caused

plaintiff's injuries. Furthermore, during the debate over

jury instructions, Virginia Power represented to the trial

court that the "high degree of care" referred to in

Instruction 4 was specifically defined in Instruction 6, the

joint instruction, as the duty to comply with the National

Electrical Safety Code. Virginia Power thus will not be heard

now to complain that Instruction 4 imposed an improperly high

duty of care and resulted in prejudice to Virginia Power.

Accordingly, we find no error in the trial court's refusal to

give Virginia Power's proposed trespass instruction.

V. Expert Testimony

Substation, then Virginia Power is not liable to
Plaintiff.
If, however, you find that Virginia Power did not
meet the National Electrical Safety Code or that Virginia
Power did have notice of circumstances at Q Substation
such that it was reasonably foreseeable that Plaintiff
would enter Q Substation, you may find Virginia Power
liable only if you also find that (i) any negligence by
Virginia Power was a proximate cause of Plaintiff's
injuries and (ii) the evidence fails to prove by a
preponderance of the evidence that Plaintiff's own
negligence or assumption of the risk was a proximate
cause of his injuries.

31
 Virginia Power sought to elicit testimony from its

expert, Dr. James Culbert, a child psychologist, that a child

of similar age, intelligence, and experience to the plaintiff

would have understood the dangers of an electrical substation.

The trial court excluded such testimony on the ground that the

jury did not need the assistance of expert testimony to reach

a conclusion on that issue. Virginia Power assigns error to

this ruling, arguing that its expert testimony was necessary

to assist the jury in this case because "many of the jurors

did not have children" and "none of the jurors was from an

urban environment like Richmond."

The admission of expert testimony is committed to the

sound discretion of the trial court, and this Court will

reverse a trial court's ruling only where that court has

abused its discretion. Tarmac Mid-Atlantic, Inc. v. Smiley

Block Co., 250 Va. 161, 166, 458 S.E.2d 462, 465 (1995). An

expert's opinion is admissible in evidence if it will assist

the trier of fact on a matter that is not within the range of

common knowledge. David A. Parker Enterprises, Inc. v.

Templeton, 251 Va. 235, 237, 467 S.E.2d 488, 490 (1996); see

Code § 8.01-401.3(A). As a corollary, an expert's testimony

is inadmissible if it relates to matters about which the fact

finder is equally as capable as the expert of reaching an

32
intelligent and informed opinion. Kendrick v. Vaz, Inc., 244

Va. 380, 384, 421 S.E.2d 447, 449 (1992).

In this case, the plaintiff's experts, Langford and Dr.

Tsao, testified that plaintiff's ADHD condition and other life

circumstances affected his developmental and intellectual

processes to the extent that he acted like a child

significantly younger and less intelligent than he. Virginia

Power attempted to rebut this testimony through its own

expert, Dr. Culbert, who testified that the plaintiff did not

have ADHD and was of average intelligence for his age.

The jury having been so informed by the experts, we

cannot say that the trial court abused its discretion in

concluding that the jury was capable of drawing its own

conclusion, from the facts and circumstances of the case, on

the question whether children of similar age, intelligence,

and experience to the plaintiff would have understood the

electrical dangers. As the trial court pointed out, the

jurors could draw on their experiences having once been

children themselves, having children of their own, having

grandchildren, nieces, nephews, or neighbors and friends with

children.

Furthermore, although Virginia Power asserts that "many"

of the jurors did not have children, the record reflects that

only five of the 18 members of the venire did not have

33
children, and the record does not indicate how many of those

five ultimately served on this jury. Likewise, while the

record reflects that each of the members of the venire met the

six-month residency requirement for serving on the jury in

Charles City County, the record does not support Virginia

Power's conclusion that "none" of them was "from" an urban

environment or had no experience in such an environment. In

any event, although the jurors may not have had personal

experience with children suffering from ADHD, or children

raised in the inner city, they received extensive information

through the expert testimony as to the effect such

circumstances have on a child's maturity, intelligence, and

experience.

Virginia Power also complains that the trial court

improperly restricted its cross-examination of plaintiff's

expert, Dr. Tsao. As we read the argument, Virginia Power

first states that the trial court did not allow it to cross-

examine Dr. Tsao on the issue whether a child of like age,

intelligence, and experience as the plaintiff would have

understood the danger, "even though the trial court allowed

[Dr. Tsao] to give opinions on the matter in his direct

testimony." Virginia Power continues by asserting that Dr.

Tsao also testified on direct examination regarding the

plaintiff's ability to appreciate the danger but was not

34
allowed to be cross-examined on that issue either. Neither of

these assertions, however, is supported by the record.

The trial court specifically ruled that both parties'

experts could testify about the effects of ADHD and other

circumstances on a child's maturity, intelligence, and

experience, but that neither could opine as to whether the

plaintiff, or a child like him, could understand the peril

associated with the substation. The trial court held that

allowing the experts to give their opinion on this issue would

invade the province of the jury. In conformity with the trial

court's ruling, the plaintiff did not elicit opinions on

either issue from Dr. Tsao on direct examination. 5

Consequently, asking Dr. Tsao for such opinions on cross-

examination would have been beyond the scope of the direct

examination and would not have been proper impeachment.

For these reasons, we find no error in the trial court's

exclusion of this expert testimony.

VI. Admission of Photographs

5
The record is not conclusive as to what Dr. Tsao would
have said on cross-examination if asked his opinion on this
subject. Virginia Power proffered as Dr. Tsao's likely
response to such a question the response Dr. Tsao gave during
his deposition; however, the parties' interpretation of that
response is disputed. Indeed, the plaintiff objected to the
form of the proffer, suggesting that Dr. Tsao be allowed to
explain his answer for the record.

35
 Virginia Power asserts that the trial court erred in

admitting four particular photographs into evidence. The

photographs variously showed holes or gaps under the fence in

two locations other than the one plaintiff alleged he used to

enter the substation, a slit in the fabric of the fence

approximately eight inches long and almost ten feet from the

place at which the plaintiff allegedly entered the substation,

the condition of the barbed wire on the side opposite where

the plaintiff entered, and vines growing on the fence.

Admission of these photographs was error, Virginia Power

asserts, because the defects in the fence shown in the

pictures "played no role in [plaintiff's] injuries" and were,

therefore, irrelevant. We disagree.

The fact that the defects depicted in these photographs

were not a proximate cause of plaintiff's injuries does not

preclude their relevance in this case. Every fact, however

remote or insignificant, that tends to establish the

probability or improbability of a fact in issue is relevant.

Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 56, 419 S.E.2d

627, 630 (1992).

In this case, the plaintiff alleged that Virginia Power

negligently failed to properly inspect the fence and failed to

discover the hazard created by such an improperly maintained

fence. Plaintiff alleged that these negligent acts made it

36
easy for children to crawl under the fence and thus

proximately caused plaintiff's injuries.

In opening statements to the jury, Virginia Power told

the jury that it would prove that it had no notice of any

defects in the substation because it had conducted a thorough

inspection of the substation on July 8 and 9, 1996 and found

no defects in the fencing. The condition of the fencing

surrounding the substation at the time of the purported

inspection, whether Virginia Power adequately inspected the

fencing, and whether Virginia Power had notice of the defects

in the fencing that caused plaintiff's injuries were thus

disputed issues in the case.

During plaintiff's case in chief, Captain Zack testified

that the challenged pictures adequately represented the way

the substation appeared in May and June of 1996, prior to the

accident. These images were relevant in that they tended to

show that the condition of the fence surrounding the

substation was such that the fence would not have passed

proper inspection, and that Virginia Power should have known

that defects in the fencing existed that would allow children

to enter the substation.

Furthermore, the trial court guarded against the jury's

potential misunderstanding or misuse of this evidence by

giving them the following limiting instruction:

37
 [the photographs] are introduced not because they're
the site where the young man went over or under the
fence, but these are photographs . . . to introduce
the general appearance of the entire fence line.
This is from the evidence not where the young man
went through. This shows the general condition of
the fence line. And for that reason only are you to
consider the photographs.

For the foregoing reasons, we affirm the trial court's

admission of these photographs into evidence.

VII. Failure to Set Aside the
Verdict or Order Remittitur

Following the jury's verdict of $20,000,000, Virginia

Power made a motion asking the trial court to set aside the

verdict or alternatively to order remittitur to "under a

million dollars." Virginia Power argued to the trial court

that the verdict was excessive and should be either vacated or

reduced because, even though the plaintiff suffered painful

burns and was scarred for life, he was not injured in such a

manner that would curtail his life activities. According to

Virginia Power, "he's up and about. He can see. He's got

both his arms and legs. He can play basketball."

Virginia Power attributes the amount of the verdict to a

misunderstanding by the jury caused by a statement made by

plaintiff's counsel in closing argument that plaintiff was

reducing his damage request from $150,000,000 to $75,000,000

because he "elected" not to introduce any medical bills.

Virginia Power argues that this statement misled the jury into

38
thinking that the plaintiff in fact had medical bills to pay,

thus leading the jury to award more damages than were

supported by the evidence at trial. 6

The trial court denied Virginia Power's motion, reasoning

that the verdict was supported by the evidence and was not

excessive. The trial court specifically remarked that the

jury had calmly listened to all of the evidence and had simply

rejected Virginia Power's evidence. Virginia Power assigns

error to this ruling.

A jury verdict fairly rendered on competent evidence

should not be disturbed by the trial court; however, the trial

court does have the duty to correct a verdict that plainly

appears to be unfair or would result in a miscarriage of

justice. Edmiston v. Kupsenel, 205 Va. 198, 202, 135 S.E.2d

777, 780 (1964); Smithey v. Sinclair Refining Co., 203 Va.

142, 145-46, 122 S.E.2d 872, 875 (1961). Whether to set aside

a verdict as excessive is within the discretion of the trial

court, and, on appeal, the standard of review is whether the

trial court abused its discretion. Poulston v. Rock, 251 Va.

254, 258-59, 467 S.E.2d 479, 481-82 (1996).

Based on this record, we cannot say that the trial court

abused its discretion. Although Shriners Hospital treated the

6
We note that Virginia Power did not object to this
statement during plaintiff's closing argument.

39
plaintiff at no charge, and plaintiff offered no evidence of

special damages, the evidence of the plaintiff's past,

present, and future pain and suffering was compelling.

Plaintiff sustained third degree burns to his head, face,

neck, arms, hands, and chest. While in the hospital after the

accident, plaintiff endured eight surgical operations in which

doctors took skin from "donor sites" and grafted it onto the

burned areas of plaintiff's body. Nursing procedures to keep

the wounds clean were so painful and traumatic that the

plaintiff had to be sedated.

Following his release from the hospital, plaintiff

returned to the hospital intermittently to have skin grafts

applied to rips and cracks in the hypertrophic scarring that

developed over his burns. Dr. Glenn Donald Warden, the

reconstructive surgeon specializing in burns who treated the

plaintiff after the accident, testified that this hypertrophic

scarring would cause bumpy, hyperpigmented skin that would

continually shrink as it healed, and that plaintiff would have

to wear elastic spandex-like garments and gloves for one to

one and one-half years after the skin graft surgeries in order

to minimize scarring. Dr. Warden further testified that the

hypertrophic scarring causes a loss of range of motion,

especially in teenagers, requiring extensive exercise and

physical therapy. On one occasion, while doing stretching

40
exercises pursuant to his doctor's instructions, plaintiff

tore scar tissue and had to return to the hospital to have

skin regrafted onto his elbow. Dr. Warden testified that, as

plaintiff continues to grow, he will need at least eight

additional reconstructive procedures to add skin grafts to the

scar tissue.

Plaintiff presented evidence that, beyond the physical

pain, the accident has caused and will continue to cause

substantial emotional and psychological pain related to his

permanent disfigurement. Dr. Tsao testified that James suffers

from post-traumatic stress disorder as a result of the accident

and that he will require professional treatment for at least

the next 30 years to deal with the depression, anger, and

frustration caused by his attempts to cope with his permanent

injuries.

Furthermore, the jury had an opportunity to hear from and

view the plaintiff when he testified. Plaintiff testified

that the children at school tease him and that he is ashamed

of his appearance. He testified that on one occasion, when he

asked someone for directions, that person "looked at me and

ran."

As this Court has stated before, there is no exact method

by which to measure and value in monetary terms the degree of

pain and anguish of a suffering human being, and, unless the

41
jury's verdict is so great as to indicate its judgment was

actuated by partiality or prejudice, the court should not

disturb the verdict. Norfolk Rwy. & Light Co. v. Spratley,

103 Va. 379, 49 S.E. 502 (1905).

We believe that in view of the evidence in the record,

including the evidence described above, the trial court did

not abuse its discretion in concluding that the jury's verdict

was not excessive. Accordingly, we affirm the trial court's

denial of Virginia Power's motion to set aside the verdict or

order remittitur.

For the foregoing reasons, the judgment of the trial

court will be affirmed.

Affirmed.

42