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.
18
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.
21
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