September 18, 1998
Record No. 972018




Charles E. Poston, Judge

Present: All the Justices

Francesca Nicole Amos brought suit against NationsBank, N.A.
(NationsBank) to recover damages for personal injuries she
sustained when she fell on ice located on NationsBank’s premises.
A jury returned a verdict in favor of Amos. The trial court,
however, set aside the verdict and entered final judgment in
favor of NationsBank. Amos appeals from that judgment. Because we
find the evidence insufficient as a matter of law to establish
that NationsBank had a duty to remove ice and snow from its
premises at the time of Amos’ fall, we will affirm the trial
court’s judgment.
Amos was an invitee on NationsBank’s premises when she fell.
Therefore, NationsBank owed her the duty of using ordinary care
to maintain its premises in a reasonably safe condition and to
warn her of any hidden dangers. Wynne v. Spainhour, 215
Va. 16, 17, 205 S.E.2d 634, 635 (1974). However, a business
establishment, landlord, common carrier or other inviter may wait
until the end of a storm and a reasonable time thereafter before
removing ice and snow from an outdoor entrance, walk, platform or
steps. Walker v. The Memorial Hospital, 187 Va. 5, 13, 45
S.E.2d 898, 902 (1948). Accord FAD Ltd. Partnership v.
, 237 Va. 413, 415, 377 S.E.2d 437, 438 (1989); Mary
Washington Hosp., Inc. v. Gibson
, 228 Va. 95, 101, 319 S.E.2d
741, 744 (1984). In other words, NationsBank "had no duty to
remove the ice during the time moisture was falling and freezing
on the ground." Feagley, 237 Va. at 415, 377 S.E.2d
at 438.
As plaintiff, Amos bears the burden of establishing that, at the
time of her fall, NationsBank had the duty to clear its premises
of ice and snow. Burns v. Johnson, 250 Va. 41, 44, 458
S.E.2d 448, 450 (1995). Whether NationsBank’s duty had arisen at
that time is a "pure question of law" to be decided by
the court. Id. at 45, 458 S.E.2d at 451; The Chesapeake
and Potomac Tel. Co. of Va. v. Bullock
, 182 Va. 440, 445, 29
S.E.2d 228, 230 (1944). Thus, the issue before this Court is
whether Amos presented sufficient evidence to prove that, at the
time of the accident, the storm had ended and a reasonable time
thereafter had elapsed.
When a trial judge disapproves a verdict, that verdict is not
entitled to the same weight as a verdict that has been approved. Deskins
v. T.H. Nichols Line Contractor, Inc.
, 234 Va. 185, 186, 361
S.E.2d 125, 125 (1987). However, we must still consider the
evidence in the light most favorable to Amos, who was the
recipient of the verdict. Id. We must also accord Amos
"the benefit of all substantial conflict in the evidence, as
well as all reasonable inferences that could be drawn
therefrom." Kendrick v. Vaz, Inc., 244 Va. 380, 384,
421 S.E.2d 447, 450 (1992). We will review the evidence using
these principles.
At trial, Amos testified that, on February 2, 1996, around 1:20
p.m., she left the building where she worked in downtown Norfolk
and walked across the street to the NationsBank building for the
purpose of opening an account. Amos described the weather
conditions at that time as being "cold" with a
"light drizzle" falling and the temperature as having
dropped significantly since the morning hours.
Upon reaching the NationsBank complex, Amos ascended stairs that
lead from the street level up to an outside pedestal or plaza
area, walked approximately halfway across the plaza, and
"slipped a little." Amos stated that the plaza’s
surface "looked wet, just looked like it was raining"
but that it did not "look like ice." She also testified
that she saw no signs, ropes, cones, salt or chemicals alerting
her to the presence of ice. Amos testified that she then walked
more cautiously, but that she slipped and fell after three or
four more steps and landed on her back. As a result of her fall,
Amos fractured her right ankle.
Amos presented evidence from two bystanders, Ronald Dew and Tina
Sutton, who worked in the NationsBank building and assisted Amos
after she fell. Both Dew and Sutton testified regarding the
weather conditions when Amos fell as well as the weather
conditions earlier that day. Dew stated that, when he arrived at
the NationsBank building about 8:30 a.m., the weather conditions
were "[v]ery icy" and "[v]ery windy and
cold." Dew further testified that, at the time Amos fell, it
was "[s]till windy and cold, icy" and that a "lot
of ice . . . a lot of packed snow" was on the
plaza. Sutton also testified that, when she arrived at work
around 8:30 a.m., the temperature was "extremely cold"
and that there had been "some ice or some kind of freezing
condition the day before." Sutton described the weather
conditions when Amos fell as "cold . . . very,
very cold."
NationsBank presented two witnesses who corroborated Amos’
evidence that the weather conditions at the NationsBank building
on the day Amos fell were cold, windy, and icy. One of the
witnesses also described the area where Amos fell as covered with
"ice with little piles of slush here and there."
Finally, Jeffrey B. Lawson testified for NationsBank as an expert
witness in the field of meteorology. Lawson confirmed that
"a significant ice storm" began in the Norfolk area
about 3:00 a.m. on February 2, 1996 and did not begin to abate
until 2:41 p.m. that day. Lawson stated that "it continued
to rain, continued to have a temperature below freezing all
throughout the morning and all through the early parts of the
afternoon." He further explained that the Norfolk area had
freezing rain "through about 2:50 in the afternoon" and
that the storm formed "a thick layer of ice throughout the
day that didn’t let up except for a few hours in the late
afternoon and then started up again in the evening." Records
reviewed by Lawson from the National Oceanic and Atmospheric
Administration (NOAA) also indicate that there was "freezing
rain" from 10:37 a.m. to 1:50 p.m. and "freezing
drizzle" at 2:50 p.m. in the Norfolk area on February 2,
Following the jury’s verdict in favor of Amos, NationsBank moved
to set aside that verdict on the grounds that it did not have a
duty to remove ice or snow from its premises until after the
storm subsided and that all the evidence, including Amos’
testimony, demonstrated that the storm was still ongoing when she
fell. After considering briefs filed by both parties, the trial
court granted the motion and entered final judgment for
NationsBank in an order dated July 1, 1997. In a letter opinion,
the trial court characterized the storm as "raging" at
the time of Amos’ fall and determined that "[t]he
overwhelming evidence presented at trial [was] conclusive that at
the time of [Amos’] injury, an ice storm was in progress,
moisture was falling, and the moisture was freezing on the
ground." Accordingly, the court held that NationsBank
"had no duty at the time of [Amos’] injury to remove
the ice on the pedestal to the building."
However, Amos maintains on appeal that she presented sufficient
evidence to establish that NationsBank owed her the duty to clear
its premises. Specifically, Amos relies on the fact that the
witnesses who testified about the weather conditions in downtown
Norfolk at the time of her fall failed to mention, observe, or
describe an ongoing ice storm or freezing precipitation. Amos
contends that the absence of such testimony proves that the storm
had ended. We disagree.
The absence of any affirmative testimony with regard to an
ongoing storm or freezing precipitation is an insufficient
premise upon which to base a conclusion that the ice storm had
ended. Just as no witness conclusively stated that the storm was
ongoing, not a single witness affirmatively said that the storm
was over. Rather, the evidence actually adduced at trial and the
reasonable inferences which may be drawn therefrom indicate that
the storm had not yet passed when Amos fell. Amos herself
testified that, at the time of her accident, a "light
drizzle" was falling. Furthermore, the meteorologist
confirmed that, on the day in question, the Norfolk area had a
"significant ice storm" with "freezing rain"
lasting until approximately 2:50 p.m., more than an hour after
Amos’ accident. According to the meteorologist, the storm created
a "thick layer of ice" and did not abate "except
for a few hours in the late afternoon." The NOAA records
also show that freezing rain and drizzle occurred in the Norfolk
area until 2:50 p.m.
Nevertheless, Amos posits that the trial court erroneously
characterized the storm as "raging" based on her
testimony that a "light drizzle" was falling when she
fell. However, a storm does not have to be "raging" in
order for a business inviter to wait until the end of the storm
before removing ice and snow from its premises. We have
previously held that a storm was ongoing when there was a
"fairly continuous condition of freezing rain or sleet"
falling during a four and one-half hour time period, Walker,
187 Va. at 11, 45 S.E.2d at 901, and when "moisture was
falling and freezing on the ground." Feagley, 237 Va.
at 415, 377 S.E.2d at 438.
Thus, we agree with the trial court that the evidence
overwhelmingly shows that, at the time of Amos’ fall, there was
an ongoing ice storm with precipitation falling and freezing on
the ground. We, therefore, hold that the trial court properly set
aside the jury’s verdict because Amos failed to present
sufficient evidence to establish that NationsBank had a duty to
remove ice and snow from its premises at the time of her fall.
Moreover, the cessation of a storm alone does not give rise to an
inviter’s duty to clear its premises. Rather, the storm must have
ceased and a reasonable time period must have passed.
"[C]hanging conditions due to the pending storm render it
inexpedient and impracticable to take earlier effective action,
and . . . ordinary care does not require it." Walker,
187 Va. at 13, 45 S.E.2d at 902. Thus, the complete inquiry is
whether the storm had ended, and if so, whether a reasonable time
period had passed. Amos failed to present sufficient evidence to
satisfy this standard.
Accordingly, we will affirm the judgment of the circuit court.