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MORRISON-KNUDSEN COMPANY, INC., ET AL. v. WINGATE (59899)


MORRISON-KNUDSEN
COMPANY, INC., ET AL. v. WINGATE


September 12, 1997
Record No. 961606

MORRISON-KNUDSEN
COMPANY, INC., ET AL.

v.

ALTON BRUCE WINGATE

OPINION BY CHIEF JUSTICE HARRY L. CARRICO
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Robert W. Curran, Judge
Present: Carrico, C.J., Compton, Stephenson,[1] Lacy, Keenan, and
Koontz, JJ., and Whiting, Senior Justice


In this slip-and-fall case, a jury awarded the plaintiff,
Alton Bruce Wingate, a verdict for $300,000 against the
defendants, Morrison-Knudsen Company, Inc. and Eugene W. Kelsey
& Son, Inc., a joint venture operating under the name of
Kelsey & Associates. The trial court entered judgment on the
verdict, and we awarded the defendants an appeal.

The plaintiff was injured when he slipped and fell on an
outside stairway at Building 1949 in a housing complex at the
Naval Weapons Station in Yorktown. Building 1949 was one of 36
two-story buildings containing a total of 232 housing units for
which the defendants were awarded a construction contract by the
United States Navy Department in 1981. Pursuant to the contract,
the defendants acted as architect and designer as well as general
contractor for the project, including the exterior stairways.

Building 1949 was the first structure erected, and it was used
as a prototype for the remaining thirty-five buildings. The
second-floor units in each building were reached by an exterior
stairway in the shape of a "Y," with the leg of the
"Y" joined to the arms by a landing located
approximately one-third of the way up the stairs.

The original shop drawings for the prototype stairway
specified a "steel trowel finish" for the precast
concrete treads and landing, meaning that the finish would be
"relatively smooth," and the treads and the landing on
the stairway in Building 1949 were finished in this manner.
However, after Building 1949 was completed, "the Navy
. . . decided [it] wanted broom finish instead of
steel-trowel finish" on the stair treads, and a change order
was issued directing the replacement of "[s]tair treads at
Bldg. 1949." A note on the change order stated that the
"[o]riginal stair treads were smooth [and should] have been
rough texture." The change order made no mention of the
landing on the stairway in Building 1949.

The stair treads in Building 1949 were replaced with treads
having a "broom finish," meaning that "you still
trowel [the concrete], and then you run a broom over it to get a
slight texture."[2]
C.H. Morgan, the framing subcontractor who originally erected the
prototype stairway, was employed to do the replacement work. He
asked a representative of the defendants why the landing was not
being replaced and was told that the surface of the landing would
be roughened by application of an epoxy material. However, the
finish on the landing was still smooth when he examined it some
time later.

The plaintiff was employed by a private commercial firm to
perform maintenance work at the housing complex after it was
completed. On August 14, 1984, he had been working in a
second-floor unit of Building 1949 when it began to rain. Walking
briskly down the stairway to raise the windows on his van, he
slipped on the wet landing and fell to the bottom of the stairs,
suffering the injuries for which he sought damages in the action
filed below. He examined the landing the day after he fell and
found it was composed of "real smooth concrete," unlike
the "rough, broom-finished concrete" on the steps.

On appeal, the defendants argue that actionable negligence
requires proof of a legal duty to exercise ordinary care for the
safety of another person, a breach of that duty, and an injury
proximately resulting from the breach. The defendants say that
the plaintiff was required to establish by the use of expert
testimony what duty they owed him as designers and general
contractors, yet the plaintiff failed to produce such expert
testimony. Furthermore, the defendants submit, there was no
showing that they breached any duty they owed the plaintiff; he
produced no evidence to show that the trowel finish was unfit or
unsafe for use on an exterior landing or that the trowel finish
constituted a defect in the premises. Hence, the defendants
conclude, their motions to strike and for summary judgment, made
below, should have been granted.

The plaintiff responds that expert testimony was not required
to establish the defendants’ duty because this is a case "in
which the facts and circumstances are within the common
understanding and experience of the average lay juror." The
plaintiff maintains that "[f]or a proper statement of the
duty owed to a person injured by a defective condition created by
a contractor, the court must look to tort law and apply the
objective standard of the reasonably prudent man."

Here, the plaintiff says, there was "ample evidence from
which the jury could conclude that [the defendants] failed to use
ordinary care in creating and failing to repair the condition
that caused [the plaintiff's] injury." The evidence showed,
the plaintiff submits, that the defendants failed to use ordinary
care "in (1) designing a stairway composed of a smooth
concrete surface exposed to the weather, (2) replacing all but
one surface when the owner rejected it as too smooth, and (3)
failing to perform the repair they arranged for (application of
epoxy)." Hence, the plaintiff concludes, the trial court did
not err in refusing to grant the defendants’ motions to strike
and for summary judgment.

For purposes of this discussion, we will assume, without
deciding, that the plaintiff is correct in his assertion that
expert testimony was not required to prove what duty the
defendants owed him, and we will agree with the plaintiff that
the defendants owed him the duty of ordinary care. Yet, there
remained upon the plaintiff the burden of showing a breach of
that duty by producing evidence of a non-expert nature
establishing that the smooth finish on the landing in the
stairway of Building 1949 constituted what the plaintiff calls
"a hazardous condition . . . created by [the
defendants] which they failed to repair."

We are of opinion that the plaintiff failed to carry his
burden. Indeed, at best, the plaintiff’s evidence may be
described as sketchy. He cites the testimony of the defendants’
quality control officer that there is no custom in the building
industry concerning broom-finished versus trowel-finished
concrete. The plaintiff also cites the testimony of the
defendants’ project manager to the effect that he was unfamiliar
with building code requirements. The plaintiff then argues that
if the defendants could have shown that they had complied with
applicable industry standards or building codes, "they would
have done so."

The difficulty with this argument is that the burden was not
upon the defendants to show that they complied with industry
standards or building codes, if any were applicable. Rather, the
burden was upon the plaintiff to show that the defendants
deviated from the standard of ordinary care, either by failing to
observe applicable trade customs and building code provisions or
by some other defalcation.

The plaintiff also cites an "acknowledgement" by the
defendants’ quality control officer that broom-finished stair
treads "give you more traction" than smooth-finished
treads, especially in damp "climates such as you have in
Yorktown," and that if he were building the stairs and
landings, he would prefer a "real light broom finish."
Further, the plaintiff cites a statement by the defendants’
project manager to the effect that he did not know why the Navy
requested the change to broom-finished treads "other than
that they wanted the stair treads to be rougher."

However, all that this evidence establishes is the obvious:
broom-finished concrete provides a rougher surface with better
traction than smooth-finished concrete. It does not prove that a
smooth finish is inherently unsafe or unfit for use on an
exterior landing. Simply because one method of finishing concrete
may be better or preferable to another does not mean that the
other is necessarily unacceptable or that its use would
constitute negligence under circumstances similar to those
present here.

Next, the plaintiff cites the testimony of C.H. Morgan, the
framing subcontractor who originally erected the prototype
stairway and later replaced the treads pursuant to the change
order. Morgan stated that in his forty years of building
experience, he had never seen smooth-finished concrete used in a
public area.

But Morgan’s "business, . . . on this
particular project, was to do carpentry and framing and trim
work." He had never participated in the design of concrete
forms or concrete structures, had no expertise in concrete, and
was only generally familiar with what concrete finishes are used
on common walkways and areas. While he found the use of
smooth-finished concrete in a public area unusual, he did not
question its use on the prototype stairway. And the fact that one
person may never have seen smooth-finished concrete used in a
public area does not make its use in this particular case a
breach of the duty to use ordinary care.

Finally, the plaintiff puts great emphasis upon the change
order requiring replacement of the treads on the prototype
stairway because the "[o]riginal stair treads were smooth
[and should] have been rough texture." The plaintiff says
that the defendants prepared the plans and specifications for the
prototype stairway, which allowed the use of smooth-finished
concrete, that "[t]he Navy rejected the plans and ordered
them changed," and that the defendants complied with respect
to all the buildings in the housing project except Building 1949.
"In other words," the plaintiff states, "these
were [the defendants'] own plans, [they] were not approved but
rejected and not followed as modified."

However, there is nothing in the record to justify the view
that the Navy ever "rejected" the use of
smooth-finished concrete on the treads and landing in the
stairway of Building 1949. Rather, the evidence shows that the
original plans and specifications were approved and that the
stairway was erected with smooth-finished concrete in accordance
with those plans and specifications. Only later did the Navy
indicate that it "wanted" the smooth treads replaced by
treads with a rough finish. The change order was then issued and
the treads were replaced. This goes to prove nothing more than
that the Navy changed its mind about the type of finish it wanted
on the stair treads in Building 1949.

Furthermore, the change order made no mention of the landing
in question. Therefore, the order cannot be construed, as the
plaintiff would have us construe it, as imposing upon the
defendants an obligation to "follow" the order by
replacing not only the stair treads but also the landing with
broom-finished concrete.

We are not unmindful of the maxim that, "on appeal, a
litigant who is fortified by a jury’s verdict and a trial court’s
judgment thereon ‘occupies the most favored position known to the
law.’" Virginia & Maryland R.R. v. White, 228 Va.
140, 145, 319 S.E.2d 755, 758 (1984) (quoting Pugsley v.
Privette
, 220 Va. 892, 901, 263 S.E.2d 69, 76 (1980)). But it
is the duty of this Court to set aside a jury verdict, even
though approved by the trial court, when it is not supported by
evidence and could only have been reached through speculation and
conjecture. Wagman v. Boccheciampe, 206 Va. 412, 418, 143
S.E.2d 907, 911 (1965).

Here, the plaintiff failed to establish that the use by the
defendants of smooth-finished concrete on the landing in question
constituted a defect or a hazardous, unsafe, or unfit condition
which the defendants were bound to repair. Therefore, the jury’s
verdict finding that the defendants breached their duty of
ordinary care is not supported by evidence and could only have
been reached through speculation and conjecture. Accordingly, we
will reverse the judgment of the trial court, set the jury
verdict aside, and enter final judgment here in favor of the
defendants.

Reversed and final judgment.

 

FOOTNOTES:

[1]
Justice Stephenson participated in the hearing and decision of
this case prior to the effective date of his retirement on July
1, 1997.

[2] A
broom finish was used on the treads and landings on the stairways
of the remaining 35 buildings in the housing complex.

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