PRESENT: Lacy, Keenan, Koontz, Kinser, Lemons, and Agee, JJ.,
and Stephenson, S.J.
BLUE RIDGE SERVICE CORPORATION
OF VIRGINIA
OPINION BY
v. Record No. 050896 JUSTICE G. STEVEN AGEE
January 13, 2006
SAXON SHOES, INCORPORATED
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Daniel T. Balfour, Judge
Blue Ridge Service Corporation of Virginia ("Blue Ridge")
appeals from the judgment of the Circuit Court of Henrico County
confirming a jury verdict in favor of Saxon Shoes, Inc. On
appeal, Blue Ridge challenges the admission of certain testimony
of Saxon's expert witness and contends Saxon failed to establish
a prima facie case of negligence. For the reasons stated below,
we will reverse the judgment of the trial court.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
At 6:00 p.m. on the evening of February 17, 2001, a
cleaning crew from Blue Ridge arrived to clean the Saxon Shoes
store located at 1527 Parham Road in Henrico County. Transito
D. Z. Javier supervised the cleaning crew comprised of Maria A.
E. Castro, Moises Yus, Wilmer R. R. Garcia, and Wilbur Martinez.
At 8:54 p.m., the Henrico County fire department received a
report of a fire at the store. Much of the store was destroyed
in the fire.
1
On August 16, 2001, Saxon filed a motion for judgment
against Blue Ridge, alleging the cleaning crew's negligence
caused the fire.1 Prior to trial, Blue Ridge filed a motion in
limine seeking to exclude the testimony of Ronald L. Hiteshew,
Saxon's fire cause and origin expert, "with respect to Mr.
Hiteshew's opinion that the fire was caused by the careless
disposal of smoking materials." After hearing oral argument,
the trial court denied the motion and later denied a renewed
motion to limit Hiteshew's testimony.
Hiteshew arrived at the store the morning after the fire
and spent seven days conducting his investigation. He first
identified the area of origin as the workbench in the shipping
and receiving room, based upon the burn pattern at that
location, and the likely presence of a trash box holding
discarded paper from shoe shipments in front of the workbench.
Hiteshew then considered whether the ignition source was either
in the building's structure or introduced from the outside. In
Hiteshew's opinion, the only possible structural source in the
area of origin was the light fixture immediately above the
workbench. He ruled out the light fixture as the cause of the
1
On October 17, 2001, L.C.L. Company ("LCL"), owner and
manager of the Ridge Shopping Center where Saxon Shoes was
located, also filed a motion for judgment against Blue Ridge
alleging identical claims. The trial court consolidated these
actions for discovery purposes by order of March 11, 2002, and
2
fire because he concluded that "there is no evidence that an
electrical fire could have occurred within the [light fixture]
by itself. It had to have escaped from a source on the
outside." Further, Hiteshew determined that "[t]he light
fixture itself was positioned . . . significantly above . . .
the area of origin." Thus, Hiteshew turned to a consideration
of whether "some form of human action" could be the cause.
To determine the type of human activity that had the
potential to cause the fire, Hiteshew "look[ed] at who was in
the building and what potential there was for some type of human
interaction that could be the heat source or fuel source."
Hiteshew concluded that one such human ignition source could be
disposal of smoking materials and that he had "to verify if a
person [was] smoking" and "the fact that . . . there is a box of
waste paper [in the area of origin] . . . suggests [the cause of
the fire] could . . . be smoking." Hiteshew's ultimate
conclusion was that "[t]he fire originat[ed] as a result of
smoking material discarded into the trash can."
At trial, Hiteshew testified that this conclusion was
supported by the evidence.
[W]e had a pattern of concentrated damage that
indicated the fire started in front of the work bench
and slightly above floor level. The information that
I obtained about the trash receptacle . . . in the
for trial by order of August 31, 2004. LCL settled with Blue
Ridge on February 24, 2005, and is not a party to this appeal.
3
area of origin that had trash in it at the time, the
statements that I read from depositions that indicated
that there was a smoker in the facility and that he
did smoke. . . . The fact that the fire originated in
a container . . . is very consistent . . . [with] a
fire originating in that location, lack of structural
content for [another] ignition source, and the lack of
any other identified human actions.
Hiteshew admitted, however, that "[n]obody observed [a Blue
Ridge employee] smoke [in the building]." The deposition and
trial testimony of Javier, Castro, and Garcia substantiates this
admission. Javier testified that Yus was the only smoker on the
crew, that all the crew members worked within sight of each
other, and he did not see Yus smoke on the night of the fire.
Castro also agreed that "when [she was] in the store, [she]
didn't see anybody smoke." Garcia testified by deposition that
Yus smoked outside the store before the crew started work.
Garcia testified that Yus was "in [his] sight all the time" and
that "[t]he only time that [he] couldn't see him was when he was
in the offices." Officer Reinaldo Riopedre of the Henrico
County Police Department testified about his interview with Yus
after the fire. According to Riopedre's testimony, Yus said he
was a smoker, and that "he smoked twice [the night of the fire]
and that he went outside . . . ." There was no evidence in the
record that a Blue Ridge employee smoked in the store.
4
At the close of Saxon's evidence, Blue Ridge moved to
strike Saxon's evidence, or alternatively, Hiteshew's testimony
because
the opinions he has given . . . are based on an effort
to contradict the direct evidence before the Court,
and that his opinions are not based on an appropriate
foundation of scientific facts.
Blue Ridge argued that Saxon failed to prove that the negligence
of Blue Ridge employees was the proximate cause of the fire, and
that Hiteshew's opinion testimony was without factual basis and
should not have been admitted into evidence. The trial court
denied both the motion to strike Hiteshew's testimony and the
motion to strike Saxon's evidence. At the close of all the
evidence, Blue Ridge renewed its motion to strike which the
trial court again denied.
The jury returned a verdict in favor of Saxon and awarded
damages of $5,139,617. Blue Ridge moved to set aside the
verdict as contrary to the law and evidence. The trial court
denied the motion and confirmed the verdict by order of January
31, 2005. We awarded Blue Ridge this appeal.
II. ANALYSIS
On appeal, Blue Ridge assigns error to the trial court
permitting Hiteshew to "assess the credibility of witnesses, to
found his opinion on that assessment, and to present opinion
testimony that was speculative . . . and unsupported by [the]
5
evidence." Blue Ridge contends the trial court abused its
discretion in permitting Hiteshew to so testify.
Additionally, Blue Ridge assigns error to the trial court's
denial of its motions to strike Saxon's evidence because Saxon
did not present sufficient evidence to establish a prima facie
case of negligence. Blue Ridge contends the trial court abused
its discretion by failing to grant the motions to strike.
Finally, Blue Ridge assigns error as an abuse of the trial
court's discretion in denying motions to strike because Saxon
was bound by the uncontradicted testimony of Blue Ridge
employees called as adverse witnesses, who stated that no member
of the cleaning crew smoked in the building on the night of the
fire.
Saxon responds that Hiteshew had an adequate basis in fact
upon which to give his opinion and that Saxon thus presented a
prima facie case of negligence upon which the jury's verdict
could stand.
A. Hiteshew's testimony
It is well settled that this Court reviews the trial
court's decision to admit expert testimony under an abuse of
discretion standard. Tarmac Mid-Atlantic, Inc. v. Smiley Block
Co., 250 Va. 161, 166, 458 S.E.2d 462, 465 (1995). Blue Ridge
argues that Hiteshew's testimony was improperly admitted because
Hiteshew wrongly assessed the credibility of witnesses and his
6
opinion was "speculative . . . and unsupported by the evidence."
We agree with Blue Ridge that Hiteshew's opinion was without a
basis supported by the evidence and was therefore speculative
and unreliable as a matter of law. The trial court thus erred
because it was an abuse of the trial court's discretion to admit
Hiteshew's opinion testimony into evidence.2
The General Assembly has determined that "scientific,
technical, or other specialize[d]" expert testimony is
admissible into evidence if it "will assist the trier of fact to
understand the evidence or to determine a fact in issue." Code
§ 8.01-401.3(A). In accordance with the statutory directive,
this Court has approved admission of expert opinions into
evidence where the jury is confronted with issues that require
scientific or specialized knowledge or experience in order to be
properly understood, and which cannot be determined
intelligently merely from the deductions made and inferences
drawn on the basis of ordinary knowledge, common sense, and
practical experience gained in the ordinary affairs of life.
2
Saxon's contention that Blue Ridge waived its challenge to
the admissibility of Hiteshew's testimony on appeal because Blue
Ridge introduced testimony as to the fire's cause and origin
through Richard T. Chance is completely without merit. Blue
Ridge did not contest Hiteshew's status as an expert witness,
but rather that his particular opinion testimony was
inadmissible as it was not supported by the evidence. The fact
that Blue Ridge presented its own expert on fire origin has no
relation to its objection to Hiteshew's opinion testimony and no
nexus for any argument concerning "same character" evidence.
7
Holmes v. John Doe, 257 Va. 573, 578, 515 S.E.2d 117, 120 (1999)
(citation omitted). However, when the issue to be decided
involves matters of common knowledge or those as to which the
jury is as competent to form an intelligent and accurate opinion
as the expert witness, expert evidence is inadmissible.
Holcombe v. NationsBanc Fin. Servs. Corp., 248 Va. 445, 448, 450
S.E.2d 158, 160 (1994).
Thus, where the opinion of an expert is appropriate, such
opinion must meet certain standards as a condition precedent to
admission into evidence. "[E]xpert testimony . . . cannot be
speculative or founded upon assumptions that have an
insufficient factual basis. Tittsworth v. Robinson, 252 Va.
151, 154, 475 S.E.2d 261, 263 (1996) (citations omitted).
Hiteshew was qualified by the trial court as "an expert in
fire origin and cause investigation," to which designation Blue
Ridge does not assign error. Blue Ridge claims error to the
admission of Hiteshew's ultimate opinion that the fire
originated in the shipping and receiving room at the rear of the
store and was caused "as a result of smoking material discarded
into the trash can." Hiteshew primarily based his opinion as to
the origin on the burn pattern on the wall of the shipping room.
Hiteshew testified that he based the causation element of his
opinion upon information he had received about the placement of
a wastepaper box in the shipping and receiving room, a video
8
tape photograph of the area showing such a box, deposition
statements that there was a smoker on the cleaning crew, and an
admission by Yus that he smoked twice the night of the fire.
Blue Ridge's expert, Richard T. Chance, agreed with
Hiteshew that the fire started in the back of the store, but
disagreed as to the location and cause. Chance opined,
concurring with the fire marshal, that the cause of the fire
could not be determined. However, the variance in opinions of
Hiteshew and Chance are not the basis of Blue Ridge's assignment
of error. Blue Ridge contends that Hiteshew's opinion as to how
the fire started is founded on assumptions which have no basis
in fact and could not therefore be admitted into evidence.
Hiteshew testified that he based his opinion on the cause
of the fire on the following:
The information that I obtained about the trash
receptacle being located [in] that area, the
photograph from the video tape that suggests there was
a box in the area of origin that had trash in it at
the time, the statements that I read from depositions
that indicated that there was a smoker in the facility
and that he did smoke. Nobody observed him smoke,
although he admitted smoking twice. The fact that the
fire originated in a container that is very consistent
and conducive to a fire originating in that location
. . . .
Saxon argues there was sufficient evidence to support
Hiteshew's opinion that the wastepaper box was by the workbench
in the shipping room and contained wastepaper at the time of the
fire. Blue Ridge contends Hiteshew merely assumed the box was
9
there without sufficient evidence. Multiple witnesses testified
at trial about the placement of the box.
James Roberts, Jr., general manager of Saxon, testified
that "there's always a box in receiving to contain trash."
Charles McNamara, the Saxon employee in charge of shipping and
receiving, testified that on the evening of February 16, 2001,
the day before the fire, that he emptied the trash box before he
left at 5:30 p.m. McNamara said that after he emptied the box,
he would set it elsewhere so that people at the store on the
weekend could not use it.
However, Gary Weiner, Saxon's CEO, testified that
"[d]epending on the time of year, that box could be empty, or
that box could be stuff [sic] because this is February [17th]."
At that time of year, the store would receive heavy shipments of
shoes to be checked into inventory with paper discarded in the
box on the weekends as well as the weekdays. Weiner also said
that when he checked in shipments, he didn't always empty the
box at the end of the day. However, there is no indication in
the record that Weiner was checking in shipments on any dates
near the time of the fire.
Roberts agreed that it was "a custom of Mr. McNamara . . .
to clean all of [the] trash out before [he] left." Weiner
testified that McNamara "empt[ies] that box out pretty
religiously when he's there" but "that there were many days when
10
the box was not empty because he may not have been the last
person to leave . . . ." Weiner admitted that the box
"[p]ossibly" would have been empty the evening before the fire
"unless somebody checked in [shipments] on Saturday when
[McNamara] typically didn't work." Roberts testified that an
employee called O'Bryan was stocking on the day of the fire and
that he could not say whether O'Bryan emptied the box. O'Bryan
did not testify and there is no other reference to him in the
record.
Saxon offered into evidence a photo frame of video footage
from the security camera in the shipping and receiving room.
The photograph showed the wastepaper box near the workbench, but
Weiner admitted that the picture did not show whether the box
had any paper in it or that the box was in that spot on the
evening of the fire. Weiner testified that the tape in the
camera was changed every morning and that each tape is 24 or 36
hours long. While we note that evidence as to the placement of
the wastepaper box at the time of the fire is not conclusive,
there was positive evidence in the record which a trier of fact
arguably could weigh to determine whether the box was present at
the purported point of origin, under the workbench, at the time
of the fire and contained wastepaper. We will assume, without
deciding, that sufficient evidence existed upon which Hiteshew
could conclude as part of his opinion that the wastepaper box
11
was under the workbench and contained wastepaper at the time of
the fire.
However, even assuming that the wastepaper box was under
the workbench at the time in question and provided the fuel
source for the fire to establish the point of origin, the record
does not support Hiteshew's ultimate opinion of "the fire
originating as a result of smoking material discarded into the
trash can" because "there was a smoker in the facility and . . .
he did smoke." In other words, there was insufficient evidence
upon which Hiteshew could give an opinion as to causation.
Hiteshew testified that there were, in his opinion, two
possible ignition sources for the fire: a structural source and
human intervention. Because he had ruled out the possibility
that a light fixture or faulty wiring started the fire, he
opined that a smoker on the cleaning crew negligently discarded
a cigarette in the box and started the fire.
Hiteshew based this conclusion on his belief that the
wastepaper box was under the workbench, and there was a smoker
in the building when the fire started. While Hiteshew never
specifically stated that Yus discarded a cigarette into the
wastepaper box, that this was a primary basis for his conclusion
is clear based on his ultimate opinion of the fire's cause.
Hiteshew came to his conclusion in spite of the fact that there
were no witnesses who saw Yus smoking in the building and no
12
physical evidence of smoking in the building by Yus or any other
Blue Ridge employee. In fact, Hiteshew opined that the lack of
physical evidence of smoking material further supported his
conclusion that a smoker in the building had caused the fire.
Q But you never found any evidence of a cigarette?
A Which is very suspicious . . . . It is very,
very common not to find the [remnants] of
cigarettes because it is a very small item that
can disintegrate in a very small area.
But there was no factual basis in the record for Hiteshew's
opinion on causation. Each member of the cleaning crew
testified that he did not see Yus smoke in the building. Both
Javier and Castro testified that Yus was the only smoker on the
crew. The crew worked close together and no one observed a co-
worker smoking inside the building.
Garcia testified by deposition that Yus was the only smoker
on the crew and that he observed Yus smoking outside the
building. Garcia testified that Yus was in his sight the entire
time except when he was cleaning the offices.
Yus admitted to the fire marshal that he smoked twice on
the night of the fire, both times outside the building. Yus
said that both Javier and Roberts saw him. While Javier
testified that he did not see Yus smoking outside the building,
Garcia did. At trial, Roberts was not asked whether he saw Yus
smoking.
13
The record contains no evidence that any employee of Blue
Ridge smoked inside the building, much less put a burning
cigarette into the trash box. Hiteshew's opinion is thus
unsupported by the evidence. The record before us is devoid of
any evidence upon which Hiteshew could conclude that a smoker on
the cleaning crew caused the fire by tossing a cigarette in the
wastepaper box. His conclusion that since Yus smoked on the
night of the fire, he must have smoked inside and then discarded
the cigarette in the trash box is pure speculation which we have
repeatedly held is unreliable as a matter of law.
In Vasquez v. Mabini, 269 Va. 155, 159-61, 606 S.E.2d 809,
811-12 (2005), we held that an expert's testimony in a wrongful
death action as to the decedent's expected loss of income and
the economic value of the loss of her services was inadmissible
as it was "speculative" and "founded upon assumptions that [had]
no basis in fact." Id. at 160-61, 606 S.E.2d at 811-12. The
expert based his lost income calculation on his assumption that
the decedent, who was unemployed at her death and had never
earned more than $7,000 per year, would secure fulltime clerical
work the next day, at a salary of $16,000 per year and receive a
retirement benefit of 3.7% and an annual raise of 4.25%. Id.
In calculating the economic value of the loss of her services,
the expert opined that the decedent's disabled son, who depended
upon her for much of his care, would live throughout his
14
mother's remaining life, even though he died prior to trial.
Id. at 161, 606 S.E.2d at 812. The trial court erred in
admitting that testimony from the expert as it lacked an
evidentiary basis in the record.
Similarly, in Countryside Corp. v. Taylor, 263 Va. 549,
553, 561 S.E.2d 680, 682 (2002), we held that an expert real
estate appraiser's damages calculation was inadmissible because
it was based in part on the failure of an access road to abut
the plaintiffs' property. However, the defendants had conveyed
land to the plaintiffs prior to trial so that the road did abut
their property, and the expert's opinion was thus based on
speculation contrary to the facts. The trial court erred for
that reason in admitting the experts testimony.
In both Vasquez and Countryside, we noted that when an
expert " 'assume[s] a fiction and base[s] his opinion of damages
upon that fiction[,]' . . . that testimony [is] 'speculative and
unreliable as a matter of law.' " Vasquez, 269 Va. at 161, 606
S.E.2d at 812 (citing Countryside, 263 Va. at 553, 561 S.E.2d at
682). In the case at bar, Hiteshew assumed, contrary to Yus'
statement and the testimony of the other Blue Ridge employees,
that Yus smoked in the store and discarded smoking material in
the wastepaper box. Unlike the evidence with regard to the
location of the wastepaper box, there is no positive evidence in
the record which the jury could weigh to determine whether a
15
Blue Ridge employee discarded smoking material in the wastepaper
box. Thus, Hiteshew's assumption is not supported by the
evidence, and his causation opinion based on that assumption is
inadmissible as a matter of law. See id.
The trial court abused its discretion by permitting
Hiteshew's testimony on the cause of the fire to come into
evidence and go to the jury. The trial court thus erred in not
granting Blue Ridge's motion to strike Hiteshew's testimony as
to the cause of the fire.
B. Motion to Strike the Evidence
Blue Ridge further contends Saxon failed to establish
actionable negligence as a matter of law and thus, the trial
court erred in not granting Blue Ridge's motion to strike
Saxon's evidence and enter a verdict for Blue Ridge. We review
the trial court's decision to deny the motion to strike 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). Examining the evidence in the light
16
most favorable to Saxon, we find that Saxon has failed to
establish a prima facie case of negligence against Blue Ridge.
The elements of an action in negligence are a legal duty on
the part of the defendant, breach of that duty, and a showing
that such breach was the proximate cause of injury, resulting in
damage to the plaintiff. Trimyer v. Norfolk Tallow Co., 192 Va.
776, 780, 66 S.E.2d 441, 443 (1951). "The proximate cause of an
event is that act or omission which, in natural and continuous
sequence, unbroken by an efficient intervening cause, produces
the event, and without which that event would not have
occurred." Beale v. Jones, 210 Va. 519, 522, 171 S.E.2d 851,
853 (1970). The evidence tending to show causal connection must
be sufficient to take the question out of the realm of mere
conjecture, or speculation, and into the realm of legitimate
inference, before a question of fact for submission to the jury
has been made out. Id. "It is incumbent on the plaintiff who
alleges negligence to show why and how the accident happened,
and if that is left to conjecture, guess or random judgment, he
cannot recover." Weddle v. Draper, 204 Va. 319, 322, 130 S.E.2d
462, 465 (1963).
Because Hiteshew's opinion as to the cause of the fire was
inadmissible, Saxon presented no evidence that Blue Ridge
breached any duty to Saxon and no evidence of a proximate cause
attributable to Blue Ridge. Assuming Saxon proved the fire
17
started in the trash box, it had no evidence, without Hiteshew's
opinion, to make the connection to Blue Ridge, as the cause of
the fire. This failure of proof represents the absence of a
prima facie case of negligence which could be submitted to the
jury.
Thus, the trial court abused its discretion when it denied
Blue Ridge's motion to strike Saxon's evidence. That abuse of
discretion was reversible error by the trial court.
III. CONLCUSION
Hiteshew's opinion testimony as to the cause of the fire
was inadmissible because it was not supported by the evidence
and thus was purely speculative. The trial court therefore
erred in denying Blue Ridge's motions to exclude this portion of
Hiteshew's testimony. Without Hiteshew's causation testimony,
Saxon did not make a prima facie case of negligence by Blue
Ridge because it could not prove either a breach of duty or
proximate cause related to Blue Ridge. Thus, the trial court
also erred in denying Blue Ridge's motion to strike Saxon's
evidence. Accordingly, we will reverse the judgment of the
trial court and enter final judgment for Blue Ridge.3
3
Because we reverse the trial court's judgment for the
foregoing reasons and enter final judgment for Blue Ridge, we do
not address Blue Ridge's remaining arguments that the trial
court allowed Hiteshew to assess the credibility of witnesses or
that Saxon was bound by the testimony of the Blue Ridge
employees as adverse witnesses.
18
Reversed and final judgment.
19