Virginia Lawyers Weekly//March 12, 2021
Virginia Lawyers Weekly//March 12, 2021//
Where the plaintiff offered photos, video evidence, and fact and expert witness testimony raising a disputed issue over whether loose bricks and sagging caulk in a town center were a dangerous condition, that the owner of the property should have known, and that they caused her fall, the defendant was incorrectly awarded summary judgment.
Following a serious fall down a short flight of stairs, Camille Sedar sued the defendants for negligence and negligence per se. The district court granted summary judgment to the defendants, holding that Sedar did not offer sufficient evidence that there was a dangerous condition, that the defendants had notice of the condition or that the alleged dangerous condition caused her fall.
To support her claim of a dangerous condition, Sedar offered photographs, taken the day of her fall, that depict unlevel bricks and sagging caulk, creating a lip where she contends someone could trip right before descending the stairs. She also points to the video taken after the incident that illustrates how the loose bricks move when stepped on. And she relies on the testimony of her colleagues.
The defendants argue that the loose bricks and sagging caulk gap were not dangerous enough to be considered a hazard. In support of their argument, they point to cases dealing with sidewalk irregularities, such as holes, depressions, or bumps in pavement. The defendants certainly can argue to the jury that the conditions Sedar complains about are not significant enough to rise to the level of a dangerous condition. And they may win.
But from this court’s review of the record, construing facts in the light most favorable to Sedar, the photographs, videotape and testimony by fact and expert witnesses constitute specific, material evidence relevant to a genuine issue based on her claims—the dangerousness of the conditions at the Reston Town Center. Accordingly, she has produced sufficient evidence from which a reasonable jury could conclude the loose bricks and the gap between them and the step posed a dangerous condition.
Sedar can satisfy the notice requirement by demonstrating constructive notice. Sedar contends she did this through her photographs which, according to her, indicate the loose bricks and resulting gap were not new and likely existed for a significant time prior to Sedar’s fall. Sedar’s expert, moreover, testified that “the sagging and deteriorating caulk joint immediately adjacent to the loose brick paver would have been visible during routine maintenance inspections and activities.” He further reasoned that the “conditions did not develop overnight but were formed over at least several months.”
This evidence is more than conclusory allegations. To the contrary, it includes specific, material facts because they help prove the existence of a dispositive issue of Sedar’s claim. It also creates a genuine issue because a reasonable jury could conclude that the conditions were in a well-trafficked area and “existed for such a length of time as to make it defendant’s duty in the exercise of ordinary care to have discovered it.” Thus, there is a genuine issue of material fact as to whether the defendants had constructive notice of the hazard.
The defendants contend that because Sedar did not provide direct evidence that she actually stepped on a specific brick or lip, her case cannot go to the jury. But causation can be proved by circumstantial evidence.
Sedar first presents her colleagues’ testimonies that establish her path of travel crossed over the loose bricks and lip created by the sagging caulk. And the photographic evidence shows the condition in line with Sedar’s bloodstains at the foot of the stairs, from which a jury could infer that she crossed over the condition before her fall. Moreover the tip of Sedar’s right shoe has a noticeable gray scuff, which she testified was not present before her fall.
Sedar fell headfirst, which she insists is more consistent with getting tripped up than with missing a step. Finally, Sedar’s expert concluded, based on the evidence available to him, that a loose brick exposed her toe to the lip at the top of the stairs and “most likely caused [Sedar] to lose her balance and fall down the stairway.” Although the defendants vigorously dispute this evidence, when “causal facts are in dispute, . . . summary judgment is not appropriate.”
Sedar v. Reston Town Center Property LLC, Appeal No. 19-1972, Feb. 22, 2021. 4th Cir. (Quattlebaum), from EDVA at Alexandria (Hilton). David J. Sensenig for Appellant. David Drake Hudgins for Appellees. VLW 021-2-072. 16 pp.