
    CIRCUIT COURT OF THE CITY OF ALEXANDRIA
    Schoeni v. Preferred Management Service
    February 5, 1997
    Case No. (Law) CL960302
   By Judge Thomas A. Fortkort

This case was heard before a jury on December 5,1996. The case is a slip and fall case in which an elderly woman broke her wrist and ribs ate stepping into a hole in a parking garage. The jury returned a verdict for (he plaintiff in the amount of $400,000.00. The Court reduced the judgment to $200,000.00, (he amount sought in the ad damnum clause.

The defendant seeks judgment notwithstanding the verdict or, in the alternative, a new trial.

The Virginia Supreme Court has set out established criteria governing when a court may enter judgment notwithstanding the verdict in a civil action. The trial court is empowered to enter (his judgment on the ground that die verdict is contrary to the evidence or without evidence to support it Va. Code § 8.01-430; Lane v. Scott, 220 Va. 578 (1979). This power is to be exercised only where the verdict is plainly wrong or without credible evidence to support it Lane, 220 Va. 578 (1979). It is not to be exercised where the trial judge would substitute bis decision tor that of toe jury based on a conflict in toe evidence, where reasonable persons might disagree in toe conclusions drawn from toe frets or based on toe weight accorded to certain evidence. Id.

The defendant Preferred Management Service, seeks a judgment notwithstanding toe verdict based on toe argument that toe plaintiff Ms. Schoeni, testified to two different scenarios, and under toe doctrine of Massie v. Firmstone, she is bound by toe version of her story that most benefits toe defendant Preferred Management Service argues feat the plaintiff must be hound by toe statement that she saw toe hole prior to her fell. Ms. Schoeni would toen be barred from recovering by her own contributory negligence (failing to keep a proper lookout for a known danger).

Defendant’s reading of toe Massie v. Firmstone doctrine is incomplete. The doctrine, which states that a party cannot raise toe credibility of Ms case above his own testimony, has numerous limitations. The doctrine does not apply to equivocal statements, Clayton v. Taylor, 193 Va. 555 (1952), or to statements considered in isolation from a party’s total testimony, Travis v. Bulifant, 226 Va. 1, 5 (1983), or to statements made by a party outside that party’s personal knowledge, Charlton v. Craddock-Terry Shoe Corp., 235 Va. 485, 489 (1988), or to expressions of opinion as opposed to feet, Erlich v. Hendrick Construction Co., 217 Va. 108, 114 (1976).

Preferred Management Service argues that Ms. Schoeni testified that she saw toe hole in which she fell on previous occasions. The transcript does not precisely support this version. Defense counsel read these questions and answers provided by Ms. Schoeni in deposition:

Q. “There wasn’t anything wrong with toe lighting, and you’d seen that hole and gravel in toe area before when you went through?”

A. “Yeah."

Ms. Schoeni’s response could have referred to either toe lighting or toe hole or hoto. It does not clearly establish that Ms. Schoeni had seen toe hole on a prior occasion. The questioning continues:

Q. "Let me ask you this. If you can, could you think of anything that was different on toe day you fell that prevented you from seeing it on that day when you’d seen it before, the hole? That’s not a very clear question. Can you understand what I’m saying? Was there anything

A. “Well, it was like that every day.”

Q. "Okay, so there is nothing different”

A. “Huh-uh, like that every day.”

Preferred Management Service claims that this established that Ms. Schoeni had seen toe hole on prior occasions. The question is not very clear. Defense counsel never got Ms. Schoeni to directly admit to having seen toe hole. This question assumes that Ms. Schoeni had seen toe hole on a prior occasion. Ms. Schoeni’s response to toe question suggests that she thought toe question was referring to some overall condition of toe garage on toe day she fell. She could have been referring to toe hole she fell into, toe lighting, or other holes in toe garage that she had seen earlier.

Massie v. Firmstone does not apply even if these answers by toe plaintiff are assumed to be statements that she had seen toe hole prior to toe day she fell. Massie does not apply where a party's testimony is equivocal Her counsel introduced testimony from her deposition as to a prior consistent statement to counter toe inconsistent testimony introduced by toe defendant Prior consistent statements are admissible where a witness’ testimony has been attacked by toe admission of a prior inconsistent statement See, Faison v. Hudson, 243 Va. 397, at 405 (1992). The prior consistent statements would also be admissible under Va. Rule 4:7(a)(5), which provides that if a part of a deposition is introduced into evidence by any party, toe adverse party may require him to introduce any other part which in fairness ought to be considered with toe part introduced, and any party may introduce any other parts. Under this rule, toe plaintiff could introduce toe deposition testimony to give a more complete picture of her testimony at toe deposition. Even accepting defendant’s reading of toe deposition and trial questions (establishing that Ms. Schoeni stated that she had seen toe hole before toe day of toe accident), her complete testimony reveals that she was equivocating in her testimony. The Massie v. Firmstone instruction given to the jury allows toe jury to weigh toe statements given by toe plaintiff in light of explanations or clarifications made elsewhere in her testimony. The jury evidently resolved these inconsistencies in favor of toe plaintiff. Therefore, this ground does not serve as a basis for entering judgment for toe defendant

Preferred Management Service also argues that judgment should be entered on its behalf because toe plaintiff Med to prove that toe defendant was on notice of toe detect in toe floor. The testimony on this point was limited to Ms. Schoeni’s testimony that she had seen defects in toe floor over toe last two years and defendant agent’s testimony that some defecto had been repaired a year before this incident occurred. This testimony does not establish that toe defendant was on actual notice of toe particular hole that caused Ms. Schoeni’s tell The plaintiff argues that there was ample testimony that defendant was on constructive notice of toe defect. She points to several facts brought out in the testimony: (1) Management knew that the seams in the concrete deteriorated over time, causing holes; (2) Management had fixed such holes in toe past; (3) the deterioration such as existed in the hole plaintiff fell into takes a long time to occur; (4) plaintiff had no other route to her car but through the garage; (5) toe lighting was dim, adding to toe danger of the hole. This suggests that Preferred Management Service was on constructive notice of toe defect, particularly top fact that toe deterioration would take a long time to occur and that Preferred Management Service knew of the tendency for the concrete to deteriorate in this fashion.

Preferred Management Service’s final argument is that, if toe court will not otter judgment for toe defendant, toe court should at least grant a new trial based on (he excessive amount of damages awarded. The decision whether to grant a new trial based on excessive damages awarded by the jury is vested in the sound discretion of the trial judge. Robinson v. Old Dominion Freight Line, 236 Va. 125 (1988). The plaintiff proved $22,000.00 in medical bills. She testified as to pain and suffering and endured several operations to cure herself of her injuries. The measurement of damages for pain and suffering are particularly within the province of the jury. See, Stuart Circle Hosp. Corp. v. Curry, 173 Va. 136, 152 (1939). The award, while substantial, in the light of all the circumstances does not lead the court to believe a new trial on the grounds of "excessive damages” is warranted in fact or at law.  