
    CIRCUIT COURT OF THE CITY OF NORFOLK
    Francesca Amos v. NationsBank, N.A.
    June 3, 1997
    Case No. (Law) L96-3545
   By Judge Charles E. Poston

On Much 21, 1997, in tins personal injury action, the jury returned a verdict for the plaintiff. For the reasons stated below, the court grants the defendant’s motion to set aside the jury verdict and to enter judgment for the defendant notwithstanding the jury’s verdict.

Facts

The facts are not substantially in dispute and are stated in a light most favorable to the plaintiff. On February 2, 1996, about 1:20 p.m., the plaintiff left her place of employment in the Crestar Bank Building in downtown Norfolk and walked to the NationsBank Center about one block away. The NationsBank Center is a multi-story building to which access is pined by ascending several steps to a pedestal or plaza area and proceeding to the doors to the building. At that time, the plaintiff testified, "It was cold and light drizzle." Amos Transcript, page 7.

The temperature had dropped significantly from the time the plaintiff arrived at work until she began her trip to the NationsBank Center. The plaintiff had no difficulty walking up the steps to the pedestal, and she saw no areas roped off on the stairs nor did she see any warning signs or cones. She. also saw no pathways cleared, nor did she see any salt or chemicals on the steps. The pedestal area looked wet, and the plaintiff slipped as she began walking to the building. This slip caused her to walk more cautiously, and three or four steps later she slipped, fell, and suffered the injuries resulting in this action.

Jeffrey Lawson, a meteorologist, testified for die defense, and his testimony was not contradicted. The evening before, Lawson, who is chief meteorologist for a local television station, had predicted a major winter storm for the area. He remembered the day especially well because he was the only local forecaster who had predicted the storm. The storm he had predicted began about 3:00 am on February 2,1996, and continued until 2:41 pm, at which tune there was a lull in the storm. Later that night die storm resumed. Lawson described the storm as the “worst ice storm we had in decades ... Lawson Transcript at 17:1-2. The best description of die conditions that day was offered by Lawson:

The temperature cooled below evaporative, and everything we had was starting to turn into a sheet of ice. Typical event you might only have a tenth of an inch. It only takes a tenth of an inch to make it slippery, hr this case, we had a significant ice storm. The observation showed it continued to rain, continued to have a temperature below freezing all throughout the morning and all through the early parts of die afternoon.
Eventually — it was foggy as well by die way. It was also quite blustery as the other people have indicated. The exact time to the minute, the 2:50 observation — they reported that it had ended at 2:41. So at 2:41 pm is when die storm began to abate — no began to abate, but it went to foggy conditions. It actually picked up later drat night and started all over again with a little bit of sleet mixed in with the freezing tain and a significant ice storm that night
During the day it continued to be freezing rain through about 2:50 in the afternoon.

Lawson Transcripts at 14:19-15:15.

On the afternoon of the accident Lawson personally observed the conditions in downtown Norfolk:

I spent die entire time driving in, as I did the entire night looking up at the sky and looking around at the conditions on the ground and everything, and it was the exact same downtown, if not even a little bit worse, than it has [sic] been everywhere across the area.
There were significant ice buildups. It was clearly visible from the trees, and it looked like a winter wonderland, sort of a picture postcard, only not with snow but that sort of glistening, which, opaque sheet sort of everywhere.

Lawson Transcript at 22:2-22:12.

There is no doubt that the ice storm occurred as Lawson had predicted and that it was still raging at the time of the plaintiffs Ml.

Two witnesses who were responsible for certain janitorial and housekeeping duties for the NationsBank Canter testified that they had arrived early that morning because of the storm. They described bow they had roped off certain areas of access to the building, cleared pathways through the ice, spread chemicals, and positioned warning devices such as cones. It is clear that NationsBank was taking actions to facilitate entry into the building which was not closed as a result of the storm.

Low

Under Virginia Code § 8.01-430, a trial court is empowered in a civil action to set aside a verdict as contrary to or not supported by the evidence and enter final judgment However, trial courts should only exercise this power when tire verdict is plainly wrong or without credible evidence to support it Rogers v. Marrow, 243 Va. 162 (1992). If there is a conflict in the testimony on a material point or if reasonable men may differ in their conclusions of fact to be drawn from the evidence, or if the conclusion is dependent on the weight of the testimony, the trial judge may not substitute Ms conclusion for that of tire jury merely because he would have voted for a different verdict if he had been on the jury. Lane v. Scott, 220 Va. 578 (1979), cert. denied, 446 U.S. 986 (1980). Nonetheless, in situations where there has been “a plain deviation from right and justice,” a court must cot malm itself a party to such a wrong by entering judgment upon it. W. S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245, 259 (1921) (quoting Palmer v. Showalter, 126 Va. 306, 316 (1919)). The duty to set aside a verdict not justified by the law and tire evidence is "just as imperative” as the duty to sustain a proper verdict. Nicholson v. Garland, 156 Va. 745, 751 (1931) (quoting Bohlkin v. Portsmouth, 146 Va 340, 348 (1926)).

M tire case at bar, tire essence of the defendant’s argument is that a business has no duty to remove ice and scow until a reasonable time after a storm ends. The defendant also argues that the fact that its business remained open during the storm and that steps were taken to remove ice and snow does not mean it assumed a duty to keep the ways clear and safe for its invitees.

The general rule applicable is stated in Walker v. Memorial Hosp., 187 Va. 5 (1948), the leading case on this point:

a business establishment, landlord, carrier, or other inviter, in the absence of unusual circumstances, is permitted to await the end of [the] storm and reasonable time thereafter to remove ice and snow from an outdoor enhance, walk, platform, or steps.

Walker, 187 Va. at 13 (emphasis added).

Thus, Walker establishes that the defendant has no duty to remove ice and snow during die time toat toe storm is ongoing. The plaintiffs assertion in toe present case toat them was a conflict in toe evidence as to whether toe storm was still in progress at toe time of her accident can be addressed summarily. The overwhelming evidence presented at trial is conclusive that at toe time of toe plaintiffs injury, an ice storm was in progress, moisture was frilling, and the moisture was freezing on toe ground. No reasonable person could conclude otherwise. At toe trial, Mr. Lawson, toe expert meteorologist, testified that toe ice storm during which plaintiff fell began at about 3:00 am. and continued until it ceased temporarily at 2:41 pm., after toe plaintiffs accident. See Lawson Transcript at 14:23-15:15. The NOAA report for toe day of toe plaintiffs accident also shows that it rained continuously from 1:50 am. to 2:50 pm. See Defendant’s Exhibit 3. Not a single witness testified toat it was not raining at toe time of toe plaintiffs fall. Most importantly, toe plaintiff herself testified that at the time of her toll, “It was cold and light drizzle.” Amos Transcript at 7:23-8:1. She is, of course, bound by her own testimony under toe rule stated in Massie v. Firmstone, 134 Va. 450, 462 (1922). As toe court in Massie explained:

As a general rule when two or more witnesses introduced by a party litigant vary in their statements of fact, such party has toe right to ask the court or jury to accept as true toe statements most favorable to him .... This is not true, however, as to testimony which he gives himself. No litigant can successfully ask a court or jury to believe toat be has not told toe truth. His statements of fact and toe necessary inferences therefrom are binding upon him. He cannot be heard to ask that his case be made stronger toan he makes it, where, as here, it depends upon facts within his own knowledge and as to which he has testified.

Massie v. Firmstone, 134 Va. 450, 462 (1922).

The plaintiff seeks to avoid the effect of ho* own testimony by arguing that a “light drizzle* does not M within the definition of “storm” for purposes of the Walker rule. However, in the Virginia Supreme Court’s most recent reaffirmation of Walker, the court concluded that the Walker rule applies anytime that moisture is Ming and freezing on the ground. As stated by the court:

In our view... the landlord had no duty to remove tire ice during the time moisture was falling and freezing on the ground....

FAD Ltd. Partnership v. Feagley, 237 Va. 413, 415 (1989) (emphasis added).

It follows, then, that the defendant had no duty at the time of die plaintiffs injury to remove the ice on tire pedestal to the building. The Supreme Court in Walker explained the justification for this conclusion:

The hazardous condition which resulted in plaintiffs unfortunate injury was caused solely by the usual and natural action of tire elements. It rendered slippery, not only the defendant’s premises, but also all other exposed places within tire city. Every pedestrian who ventures out at such times knows he is risking tire chance of a fall and of a possible serious injury. It is a hazard to which nature subjects all alike, him who undertakes to remove or correct it as well as tire one for whose protection the risk of removal or correction is incurred. It would be an unreasonable rule which would impose upon an inviter tire necessity of repeated excursions into tire storm, with tire attendant risks of exposure and injury to himself, in order to relieve the invitee of all risk from this natural hazard. Such a burden would place tire inviter practically in tire role of an insurer of tire safety of the invitee.

Walker at 22, 23.

Neither Walker nor its progeny directly addresses whether tire defendant’s action in attempting to remove the ice from tire paths to tire building created a legal duty to the plaintiff which it breached. Nevertheless, in Walker, the fact that snow had been swept to tire side of tire hospital steps during the storm had no impact on the court’s decision. Walker at 9. Moreover, this “assumed duty” argument has been rejected by courts in other jurisdictions applying the Walker rule. For instance, in Mattson v. St. Luke's Hosp., 89 N.W.2d 743 (Minn. 1958), the Supreme Court of Minnesota, citing Walker as authority, held:

Reasonable care requires only that the possessor shall remove the ice and snow, or take other appropriate corrective action, within a reasonable time after the storm has abated. The fact that the possessor may have attempted to take corrective measures during the storm’s progress does not change the situation even though such measures were temporarily effective.

Mattson, 89 N.W.2d 743, 745 (Minn. 1958) (emphasis supplied); accord, Hedglin v. Church of St. Paul, 158 N.W.2d 269 (Minn. 1968); Agnew v. Dillon's, Inc., 822 P.2d 1049 (Kan. App. 1991).

In the present case, there is absolutely no evidence which could be construed to indicate that the defendant’s efforts to ameliorate the icy conditions added a new element of danger or hazard other than the one caused by the natural forces of the storm. Indeed, the plaintiff’s testimony suggests that the area where she fell had not even been treated by the defendant’s maintenance personnel. See Amos Transcript at 9:1-10:2. The court concludes that die defendant’s attempts to remove the ice from the paths to the building created no additional legal duty to the plaintiff.

The court, therefore, concludes that the defendant’s motion to set aside the jury’s verdict and for judgment notwithstanding the verdict should be granted. 
      
       NOAA weather report admitted as defendant’s exhibit 3.
     