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AUSTIN v. SHONEY'S, INC. (59882)


JUNE 6, 1997
Record No. 961236





Everett A. Martin, Jr., Judge
Present: All the Justices

In this appeal we consider whether the trial court properly
sustained the defendant’s renewed motion to strike the
plaintiff’s evidence in a slip and fall case after the jury was
unable to return a verdict. Under well settled principles, we
view the evidence and the inferences reasonably raised thereby in
the light most favorable to the plaintiff, whose evidence was
stricken. Meador v. Lawson, 214 Va. 759, 761, 204 S.E.2d
285, 287 (1974).

Jane Pauline Austin, 70 years old, was dining with her family
on the morning of October 16, 1993 at a restaurant in Norfolk
owned by Shoney’s, Inc. Austin wore a prosthetic limb on her left
leg as a result of a below-the-knee amputation and used a cane
with a four-pronged foot for support when walking. After
completing the meal, Austin and the others walked down an aisle
between two rows of booths toward the front of the restaurant to

As Austin proceeded down the aisle, her cane slid forward on
the floor and then went into the air, causing her to lose her
balance and to fall. As a result, she suffered broken bones in
her left shoulder and left leg. She was treated for these
injuries at a local hospital and was later transferred to a
hospital nearer her home in Pittsburgh, Pennsylvania. Austin
remained hospitalized there and died five months later from
causes not directly related to her fall.

In September 1994, Doris Austin, Austin’s daughter-in-law and
personal representative of her estate, filed the present action
alleging that Austin’s fall was directly and proximately caused
by Shoney’s negligent failure to keep the floor of its dining
area in a dry and safe condition. After extensive pre?trial
proceedings, a jury trial was commenced in the trial court on
November 15, 1995. Testimony concerning various contested issues
was received over a period of four days of trial. However, we
will recite only that evidence which is relevant to the
dispositive issues of this appeal.

The floor of the restaurant’s dining area consists of red
quarry tile laid in a brickwork pattern. Shoney’s employed two
night porters to clean the floors of its dining area and other
areas of the restaurant each night. Larry Horton was the regular
weekday night porter; James Crawford was the weekend night
porter. Crawford testified that he regularly used one of two
commercial cleaning products to clean the restaurant’s floors:
Quarry Tile Cleaner WP-329 and Green Liquid Detergent WP-522, a
dishwashing detergent. Horton testified that he always used the
dishwashing detergent.

Both Crawford and Horton conceded that they used levels of
concentration of detergent to water considerably lower than was
recommended by the manufacturer for cleaning a quarry tile floor.
In addition to regular cleaning with diluted detergent, the
instructions for cleaning quarry tile floors with the quarry tile
cleaner called for weekly "shock treatments" with full
strength cleaner. This was not done. Plaintiff’s expert witness
testified that the concentrations of the two cleaning products
used by the night porters would not effectively remove grease
from the floors or emulsify grease picked up by the mops.

Horton testified that it was his practice to clean the kitchen
floor first and then the dining area floor, rinsing his mop and
changing the water in his mop bucket six to eight times a night.
Crawford testified that it was his practice to clean the dining
area floor first and then to mop the kitchen floor. Each further
testified that they used the same mop to clean the dining area
floor and the kitchen floor. The same mop was used by both night
porters over several nights until it required replacement.

The night before the accident, Crawford was the night porter.
He testified that, after completing his duties, he inspected the
floor to confirm that there were "no wet spots or anything
like that." The restaurant manager testified that when she
inspected the dining area floor on the morning of the accident,
"[t]here were no problems. The [floor] was clean."

William Meadows, another restaurant patron on the morning of
the accident, testified that 20 to 30 minutes prior to the
accident he slipped twice in the same area where Austin fell.
Meadows examined the floor and found a "slippery residue on
the floor. . . . It wasn’t [any] type of water, it
was more [a] petroleum residue." Meadows further testified
that just before Austin fell, he saw her cane "jet[] from
her . . . [l]ike it had hit something slick."
After Austin fell, Meadows reexamined the floor where she had
fallen and he had slipped. He estimated that an area about four
feet wide and four to six feet long was slick with a petroleum
residue. Doris Austin testified that she examined the floor after
Austin fell and found a "greasy film, like a slick greasy
film-like substance" on the floor.

At the conclusion of the plaintiff’s case?in?chief, Shoney’s
made a motion to strike the evidence on the ground that the
evidence did not establish that there was an unsafe condition
which was the cause of the accident, or that if such a condition
existed, it was created by Shoney’s or known by Shoney’s to
exist. Although stating that "the evidence of constructive
notice in this case is awfully thin," the trial court
overruled the motion.

Shoney’s then introduced the testimony of various employees of
the restaurant that they did not observe any grease on the floor
the morning of the accident or otherwise have reason to suspect
that the floor was slippery. Shoney’s also called a
representative of the manufacturer of the products used to clean
the floor as an expert witness. The representative testified that
the two products in question were appropriate for cleaning and
removing grease from floors, but that the dishwashing liquid
"would not be our first recommendation" for cleaning a
quarry tile floor. Another expert called by Shoney’s testified
that the cleaning methods used by the night porters were
"well within any set of [industry] guidelines," but
conceded on cross-examination that the procedures used were
"not exactly what I would have recommended."

At the conclusion of all the evidence, Shoney’s renewed its
motion to strike. The trial court took the matter under
advisement and permitted the case to go to the jury. After
several hours the jury informed the trial court that it could not
reach a verdict. The trial court directed the jury to continue to
deliberate in an effort to reach a verdict. After several more
hours of deliberation, the jury was unable to reach a verdict and
was discharged by the trial court. Shoney’s again renewed its
motion to strike. Following submission of briefs by the parties,
the trial court granted the motion and entered summary judgment
for Shoney’s. Rule 1:11. We awarded an appeal to the plaintiff.

The standard under which a trial court should review the
evidence adduced at trial before granting a motion to strike the
case at the end of a plaintiff’s evidence is well settled under
prior decisions of this Court. That standard requires the trial
court to accept as true all the evidence favorable to the
plaintiff as well as any reasonable inference a jury might draw
therefrom which would sustain the plaintiff’s cause of action.
The trial court is not to judge the weight and credibility of the
evidence, and may not reject any inference from the evidence
favorable to the plaintiff unless it would defy logic and common
sense. See, e.g., Williams v. Vaughan, 214
Va. 307, 309-10, 199 S.E.2d 515, 517-18 (1973); Esso Standard
Oil Co. v. Williams
, 202 Va. 362, 365-66, 117 S.E.2d 93, 95
(1960); Smith v. Carpenter, 198 Va. 91, 93, 92 S.E.2d 275,
277 (1956).

When a motion to strike the plaintiff’s evidence is made or
renewed at the end of all evidence, the trial court may also
consider the evidence presented during the defendant’s case in
considering the motion. Kendrick v. Vaz, Inc., 244 Va.
380, 384 n.*, 421 S.E.2d 447, 450 n.* (1992). Nonetheless, it
must still view the evidence and all its reasonable inferences in
the light most favorable to the plaintiff. Id. at 384, 421
S.E.2d at 450; see also Estate of Taylor v.
Flair Property Associates
, 248 Va. 410, 414, 448 S.E.2d 413,
416 (1994). When the trial court considers a renewed motion to
strike after the jury has been unable to return a verdict, it
should sustain the motion only if it "is of opinion that it
erred in denying the motion" made before the case was
submitted to the jury. Rule 1:11. Thus, the standard for granting
a motion to strike in such cases is identical to that for
granting such motions made during trial.

The evidence taken in the light most favorable to the
plaintiff in this case shows that the area where Austin fell was
covered with a grease-like film that rendered the surface
slippery. Shoney’s, however, contends that the evidence failed to
show what caused the grease-like film to be there and, thus, that
the plaintiff failed to meet her burden of production as to that
element of her case. Shoney’s further contends that its motion to
strike was properly sustained since the evidence failed to show
that Shoney’s was on notice as to the dangerous condition of its
floor. We disagree.

The evidence favoring the plaintiff shows that Shoney’s
employees failed to follow the recommended procedures for
cleaning a quarry tile floor. The procedures used in cleaning the
floor would not have been adequate to remove grease from the
floor’s surface or to emulsify grease picked up by the mops
elsewhere in the restaurant. The inference that the grease-like
film was placed on the floor by these inadequate cleaning
procedures does not defy logic or common sense. The evidence
showed that the grease-like film covered an area of 16 to 24
square feet. The logical inference is that it was placed there by
the movement of the mops over that area of the floor. Moreover,
nothing in the record suggests that some other foreign substance
was found in that area that would account for the slippery
condition of the floor over such a large area. Indeed, both the
restaurant manager and the waitress responsible for the area
where the fall occurred testified that there were no spills, food
or other debris visible on the floor before Austin’s fall. Thus,
for purposes of reviewing a renewed motion to strike, the trial
court should have accepted as true the inference which supported
the plaintiff’s prima facie case.

Similarly, with respect to the issue of notice, plaintiff need
only show that under some reasonable inference from the evidence
Shoney’s duty to warn against or remedy the dangerous condition
had been triggered. The plaintiff was not required to prove that
Shoney’s had actual notice of the dangerous condition of its
floor. If the jury accepted the plaintiff’s theory that the
grease-like film was the result of the improper cleaning methods,
the hazardous condition was affirmatively created by the property
owner. Thus, Shoney’s is charged with constructive knowledge of
the risk because it "had a duty to exercise reasonable care
to avoid the genesis of the danger." Memco Stores, Inc.
v. Yeatman
, 232 Va. 50, 55, 348 S.E.2d 228, 231 (1986).

Finally, Shoney’s contends that the plaintiff failed to show
that Austin’s fall was caused by the condition of the floor. In
doing so, Shoney’s relies primarily on the assertion that Austin
herself never stated that her fall had been caused by the
slippery substance on the floor. The testimony of Meadows that
Austin’s cane "jetted" out from under her suddenly and
without warning just before she fell is sufficient to raise the
inference that Austin’s fall was caused by the condition of the

For these reasons, we hold that the trial court erred in
sustaining Shoney’s motion to strike the plaintiff’s evidence.
Accordingly, we will reverse the trial court’s judgment and
remand the case for further proceedings consistent with this

Reversed and remanded.


Only through pure conjecture may one conclude that the greasy
film was on the floor through improper cleaning. Certainly that
is possible; however, it is just as likely that the film
collected from other causes, such as an unobserved spillage by
another customer occurring after the floor had been cleaned.

The majority says that "nothing in the record suggests
that some other foreign substance was found in that area that
would account for the slippery condition of the floor over such a
large area." This argument loses sight of the fact that in a
case such as this the plaintiff, not the defendant, has the
burden to prove negligence; the defendant does not have to
"account" for the happening of an accident.

Furthermore, there is no evidence that defendant had actual or
constructive notice of the condition. No customer had reported
"anything wrong with the floor" to defendant’s
employees during the hours immediately preceding the accident.
Moreover, the record shows that Meadows, who slipped 20-30
minutes before the accident, did not tell any of the defendant’s
employees about the slippery condition prior to the fall by
plaintiff’s decedent.

In addition, there was no evidence to show how long the
slippery condition existed. The proof merely showed that a defect
was present on the floor of defendant’s premises and that it
caused the decedent’s injury; this does not support a finding of
constructive notice.

Therefore, I would affirm the trial court’s judgment.



[1] Shoney’s made frequent
references on brief and at oral argument to evidence tending to
show that Austin’s cane "wobbled" and that her
prosthetic limb was not properly attached at the time of her
fall. While such evidence may tend to detract from the weight
given to the plaintiff’s theory of the case, the standard for
reviewing a motion to strike does not permit a balancing of the
weight of conflicting evidence or the inferences drawn therefrom.