WOOLFOLK PROPERTIES, INC., et
June 11, 1999
Record No. 981197
WOOLFOLK PROPERTIES, INC., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Present: All the Justices
OPINION BY JUSTICE CYNTHIA D. KINSER
The primary issue in this premises liability case is whether
the circuit court erred by admitting evidence pertaining to the
absence of prior accidents. Finding error in the circuit
courts judgment, we will reverse.
This appeal arises out of an accident that occurred on the
evening of May 20, 1994, in front of Ruths Chris Steak
House (Ruths) located in Chesterfield County. The
plaintiff, Edna Wood (Wood), and several members of her family
ate dinner at the restaurant that night. After finishing their
dinner, the Wood party prepared to leave the restaurant. While
Woods son went to the parking lot to retrieve his vehicle,
Wood and the others waited outside the restaurant. Woods
son drove the vehicle into a circular driveway in front of the
restaurant and stopped it approximately two or three feet from
the curb. As Wood approached the rear door of the stopped
vehicle, she appeared to "step into air" and fell
down. As a result of the fall, Wood sustained physical injuries
and incurred medical expenses.
Ruths is located in a shopping center that is owned by
defendant Bellgrade Development Company, Inc. (Bellgrade).
Defendant Woolfolk Properties, Inc. (Woolfolk), is the
"managing member" of Bellgrade and provides property
management and maintenance services to the shopping center.
The curb where Wood fell is a transitional area that is
slanted rather than perpendicular. The transitional curb between
the sidewalk and the circular driveway has a thirty-degree slope,
is eight inches long, and drops four inches in height from the
sidewalk to the driveway. The sidewalk, transitional curb, and
driveway are designed with varying colors, patterns, and textures
of brick in order to give pedestrians visual clues with regard to
the different surfaces, heights, and grades as they walk from the
driveway onto the sidewalk and into the restaurant.
Although the original design of the restaurant did not call
for the curb to be painted, it had been painted white sometime
prior to the night of Woods accident. In 1992, Charles
Lytton, chief executive officer of Woolfolk, decided that the
transitional area should be painted white for both aesthetic and
safety reasons. He testified that it was initially an aesthetic
idea but that the white paint also made the curb area more
visible. He described the paint as "an enhancement to
On April 22, 1997, Wood filed a motion for judgment against
Woolfolk and Bellgrade alleging that the defendants negligently
owned, operated, and maintained Ruths and the surrounding
premises; allowed certain unsafe conditions to exist on
Ruths premises; and failed to warn the plaintiff about
these unsafe conditions. Prior to trial, Wood filed a motion in
limine to exclude any evidence regarding the absence of prior
accidents at the curb area where she fell. Initially, the circuit
court sustained the motion. However, at trial, the court
reconsidered its ruling and allowed Lytton to testify, during
cross-examination, that no one had fallen across the curb line
prior to Woods accident.* The
court reasoned that the testimony rebutted the inference that,
because of Lyttons decision to paint the curb, the
defendants had notice of an unsafe condition. During the
cross-examination of Lytton, the court cautioned the jury that
the evidence pertaining to the lack of prior accidents should be
considered only with regard to the notice issue.
At the close of Woods evidence, the court sustained a
motion to strike with regard to Woolfolk and dismissed it from
this action. The court took the motion under advisement as to
Bellgrade and allowed the case to proceed to the jury. After
deliberating, the jury returned a verdict in favor of Bellgrade.
Wood then moved the court to set aside the verdict, but the court
overruled the motion and entered judgment in favor of Bellgrade
on March 24, 1998.
We granted Wood this appeal on two assignments of error: (1)
that the circuit court erred by allowing the defendants to
introduce evidence regarding the absence of similar accidents at
the curb area prior to Woods fall; and (2) that the court
erred by granting the motion to strike the evidence as to
We find no merit to the second assignment of error. The
uncontradicted testimony of Woods own witness, Lytton,
establishes that Woolfolk managed the shopping center in which
Ruths is located and provided maintenance services for it.
Lytton further stated that, when he decided to have the
transitional curb area painted white, he was acting as an owner
of the property and was not performing a maintenance function.
Moreover, the thrust of Woods claim against the defendants
was that the curb was dangerous or unsafe in its design, not in
how it was maintained. Thus, we conclude that the circuit court
did not err in granting the motion to strike with regard to
Woolfolk, dismissing it from this action.
However, we reach a different conclusion with regard to
Woods first assignment of error. In addressing that issue,
Bellgrade acknowledges that evidence establishing the lack of
prior, similar accidents is generally not admissible in a
negligence action. Nevertheless, Bellgrade asserts that this
court created an exception to that rule in Sykes v. Norfolk
& Western Ry. Co., 200 Va. 559, 106 S.E.2d 746 (1959).
In that case, this Court allowed the defendant railway company
to introduce evidence as to the number of accidents that had
previously occurred at a particular railroad crossing. We stated
that the rule that "evidence of the absence of other
injuries is not admissible when timely objection is interposed to
it" would be applicable "except for the fact that
the plaintiff had introduced the testimony of the defendant
companys supervisor of signals that he had recommended to
his company that it install automatic crossing gates and flashers
at [the] crossing [in question]." Id. at 565, 106
S.E.2d at 751 (quoting Sanitary Grocery Co. v. Steinbrecher,
183 Va. 495, 500, 32 S.E.2d 685, 687 (1945)). The company had
never implemented the recommendation. Although the plaintiff
asserted that the evidence from the supervisor of signals was to
prove that the defendant company had notice of the inadequacy of
the signals, we held "that it . . . [was] permissible for the defendants to introduce the accident
experience at the crossing to rebut the inference of negligence
that might be made from the failure to follow this
recommendation." Sykes, 200 Va. at 565, 106 S.E.2d at
Bellgrade argues that its evidence showing the absence of
prior accidents comes within the Sykes exception.
According to Bellgrade, the evidence rebuts the inference that
Lytton directed that the curb be painted white because he knew
that it was an unsafe area. We do not agree.
In Goins v. Wendys Intl, Inc., 242 Va. 333,
410 S.E.2d 635 (1991), the trial court allowed the introduction
of testimony from two restaurant employees that they had not
received any complaints of food poisoning as a result of the food
served on the day that the plaintiff allegedly consumed
contaminated food. We reversed the trial court on the basis of
the well-established rule that "evidence of the absence
of other injuries is not admissible in a negligence action when
timely objection to it is made" because it interjects into
the trial collateral issues that confuse and mislead a jury. Id.
at 335, 410 S.E.2d at 636. We further stated that "a
departure from the rule would interject evidence so
problematical, due to the potential for a lack of reporting and
the variables of circumstances and conditions, that such evidence
would have slight, if any, relevancy or probative value." Id.
at 335-336, 410 S.E.2d at 636.
The principles reiterated in Goins apply to the present
case and preclude the introduction of evidence showing the
absence of prior accidents in the area where Wood fell.
Initially, we note that Lytton did not specify whether he was
referring to the period of time before or after the curb was
painted when he stated that no one had fallen across the curb
line prior to Woods accident. The absence of accidents after
the area was painted is not germane to whether Bellgrade had
notice of an unsafe condition and thus painted the transitional
area white because of that knowledge. Furthermore, Lyttons
testimony is problematical because of the potential that a
customer will not report an accident. Id. Thus, to allow
evidence concerning the absence of prior accidents in premises
liability cases for the purpose of refuting evidence showing
notice of an unsafe condition would eviscerate the rule that we
restated with approval in Goins.
In addition, the present case is distinguishable from Sykes.
Although the plaintiff in that case offered the evidence
concerning the recommendation by the supervisor of signals to
establish notice of inadequate signals, we recognized that the
evidence created an inference of negligence because of the
failure to follow the recommendation. Therefore, evidence as to
the accident history at the crossing in question was admissible,
not in regard to the notice issue, but to rebut that inference of
negligence. In the present case, Lyttons testimony about
the lack of prior accidents is not arguably relevant to any issue
other than notice.
Finally, we do not believe that the introduction of this
evidence was harmless error. It interjected collateral issues
into the trial, and we are unable to say that it did not confuse
or mislead the jury. The challenged evidence was prejudicial to
Wood. See Sanitary Grocery Co., 183 Va. at 499, 32
S.E.2d at 686-87 (holding evidence showing absence of prior
accidents misleads jury and is prejudicial).
Thus, for the reasons stated, we will affirm the circuit
courts judgment striking the evidence with regard to
Woolfolk and dismissing it from this action. We will reverse the
circuit courts judgment allowing the introduction of
evidence relating to the absence of prior accidents and remand
for a new trial.
Affirmed in part, reversed in part, and remanded.
JUSTICE COMPTON, dissenting in part.
I agree that the trial court correctly granted the motion to
strike the evidence regarding defendant Woolfolk Properties, Inc.
I do not agree, however, that the trial court erred by allowing
evidence regarding the absence of similar accidents at the curb
area prior to plaintiff’s fall.
This case is controlled by Sykes v. Norfolk & W. Ry.
Co., 200 Va. 559, 564-65, 106 S.E.2d 746, 751 (1959). The
majority’s argument attempting to distinguish Sykes from
the present case is unpersuasive.
Sykes stands for the proposition that when a plaintiff
presents evidence of a contemplated change by the defendant in
the conditions at the accident scene, in an effort to show notice
of a defective condition, evidence of the absence of prior
accidents at the scene becomes relevant and admissible for the
limited purpose of showing the lack of notice. This is precisely
the situation in the present case, and the trial court correctly
Consequently, I would affirm the judgment below in all
* Wood called
Lytton as a witness. The defendants elicited the challenged
testimony during their cross-examination of Lytton.