
    CIRCUIT COURT OF THE CITY OF RICHMOND
    Sandra L. Souders v. Graham D. Padgett, Jr., et al.
    November 3, 1997
    Case No. ML-5262
   By Judge Randall G. Johnson

This slip and fall case resulted in a jury verdict for $1,641.36, which is $1,000 above plaintiffs medical bills. At the conclusion of plaintiffs evidence, the court took defendant’s motion to strike under advisement Defendants motion to strike was also taken under advisement at the conclusion of all the evidence. The motion to strike will now be sustained.

The party receiving a favorable jury verdict is entitled to "fee benefit of all substantial conflict in fee evidence and all fair inferences that may be drawn therefrom.” Ashby v. Faison & Associates, 247 Va. 166, 167, 440 S.E.2d 603 (1994) (quoting Fobbs v. Webb Building Ltd. Partnership, 232 Va. 227, 230, 349 S.E.2d 355 (1986), in turn quoting Walton v. Walton, 168 Va. 418, 423, 191 S.E.2d 768 (1937)). Under feat standard, fee evidence in this case is that before 1993 or 1994, defendants, fee owner and manager of an office building, had been told on at least four occasions that people had slipped and fallen on fee tile floor of their building when it was raining, hi 1993 or 1994, mats or "runners” were put on fee floor to address fee problem. The runners covered part, but not all, of fee tile floor. Among fee areas not covered was the area just outside fee women’s restroom. After fee runners were put down, three or four other people fell, and defendants were also aware of feeir felling. No other precautions were taken.

On March 28, 1996, it was raining. While in defendant’s building on business, plaintiff walked toward fee restroom. As she stepped off fee runner mid onto fee tile floor, she slipped and fell. Although her shoes were “damp,” neither she nor the only other eyewitness saw any water on fee floor, either before ¡her fell or afterwards. There was no evidence as to how long it had been raining or how hard it was raining during the time leading up to her fell. It was plaintiffs argument to the jury, and it is now her argument to the court, that because defendants were on notice that their floor was dangerously slippery when wet and because it was raining and her shoes were damp when she fell, she has sufficiently proved both negligence and causation to justify a verdict in her favor. Defendants argue that the evidence was not sufficient to allow the case to go to the jury. The court agrees with defendants.

First, fee court is not satisfied that plaintiff adequately proved that she fell because defendant’s floor was wet All she proved is that it was raining, feat her shoes were damp, and that in fee past other people had fallen on feat florar when it was raining. There was no direct evidence feat rain had anything to do wife plaintiffs fell. While fee court recognizes feat "[a]ny feet that may be proved by direct evidence may be proved by circumstantial evidence,” plaintiffs ‘proof” in this case is little more than conjecture and speculation. Indeed, if all feat is needed to prove causation is a history of fells and rain, every owner of every building can look forward to having a jury determine whether the next person who fells in his/her/its building fee next time it rains is entitled to compensation. Causation was not proven here.

Just as important as plaintiffs failure to prove causation was plaintiffs failure to prove negligence, and this is true in spite of plaintiffs evidence, even considered in fee light most favorable to her, that defendants were on notice that their floor was slippery when it rained and that other people had fallen after fee runners were put down, In Ashby v. Faison, supra, Ashby fell in an office building while it was raining. The evidence showed, as fee evidence showed here, that fee floor in that building “became slippery when wet” 247 Va. at 168. The evidence also showed, contrary to fee present plaintiffs failure to show, feat Ashby’s fall was caused by water on fee floor:

Ashby walked fee length of fee rain mat which she described as "soaked wife water,” took several steps on fee marble floor, then "slipped and fell in fee puddles of water that had gathered there.’ She did net see fee water before she fell, but when she “got up [sire] brushed fee side of [her] clothes ... and they were wet.” When she "looted down at fee flora:... there were puddles of water.”

247 Va. at 168.

It was Ashby’s argument there, as it is Souders’ argument here, that such evidence was sufficient to take the case to the jury. Specifically:

Ashby says that foreseeability is the appropriate test for determining whether the defendants breached their duty. Ashby argues "there was sufficient evidence from which the Jury could have found that it was raining on the morning of the accident and that the defendants had actual or constructive notice that, whenever it rained, it was foreseeable that water would be brought into die building and the floor would become slippery and create a hazardous condition for invitees.”

247 Va. at 169.

The Supreme Court rejected Ashby’s argument Contrasting cases in which building owners are alleged to have engaged in some affirmative conduct to create a hazardous condition, such as Memco Stores, Inc. v. Yeatman, 232 Va. 50, 348 S.E.2d 228 (1986) ("slimy” leaf that had Men from a plant while being moved by defendant’s employee), from cases in which an owner’s conduct is "passive” in Ming to remove or warn of a hazard created by someone or something other than the owner, such as Ashby and, by necessary implication, tire case at bar, the Court said:

In these circumstances, we think the applicable standard is whether the defendants had actual or constructive notice, that is, whether they knew or should have known, of the presence of the water that caused Ashby's M and failed to remove it within a reasonable time or to warn of its presence.

247 Va. at 170.

Because Ashby Med to show that the owners of the building knew or should have known that water was on the floor before she fell, negligence was not proved:

[T]here was no evidence here that any person, including Ashby herself, knew of the existence of water on the lobby floor before she fell. So there was no showing that the defendants actually knew of the existence of a hazardous condition before Ashby fell or that the condition had existed long enough that the defendants should have known of its existence in time to remove it or to warn Ashby of the danger.

Id.

The same is true here. As pointed out earlier, plaintiff and her only eyewitness did not see any water on the floor, either before she fell or afterwards. Nor did anyone else. Also as pointed out earlier, diere was no evidence concerning how long it had been raining or how hard it was raining. All we know is that it was raining. Thus, for all practical purposes, the situation here is exactly as it was in Ashby. A plaintiffs verdict there was not allowed to stand. Plaintiffs verdict here cannot be allowed to stand.

Finally, the court is not unmindful of the present plaintiffs evidence of other Mis on defendants' floor when it had rained in the past, thus putting defendants on notice that their floor was hazardous when it rained That allegation, however, is no different from Ashby’s allegations that those defendants knew that die floor cm which she fell was "slippery when wet” (247 Va. at 168) and that those defendants had actual or constructive knowledge of the "hazardous condition" (id. at 170). While there was no evidence in Ashby that anyone had actually slipped and fallen on that floor in die past — at least no such evidence is reflected in the Supreme Court’s opinion — that feet simply makes no difference. Indeed, what is the point of noting that a floor is slippery when wet except to imply that people will slip on it? More importantly, we have absolutely no idea why die prior falls occurred For example, did they occur after a heavy rainstorm or a drizzle? Did they occur because the runners were so wet that they could not absorb the moisture from people’s shoes? Did they occur because of puddles on the floor or simply because die people frilling had “damp” shoes? Were the people who fell contributonly negligent? Without die answers to at least those questions, plaintiffs reliance on the fact that previous frills occurred is misplaced There simply was not enough evidence to take this case to the jury, and defendants’ motion to strike is now sustained 
      
       Virginia Model Jury Instruction No. 2.100. See also Bailey v. Kerns, 246 Va. 158, 431 S.E.2d 312 (1993); Northern Virginia Power Co. v. Bailey, 194 Va. 464, 470-72, 73 S.E.2d 425 (1952).
     