City of Richmond v. Holt

• Decision Date: 07 June 2002
• Docket Number: Record No. 011742.
• Citation: 563 S.E.2d 690,264 Va. 101
• Parties: CITY OF RICHMOND v. Junne-Anne HOLT.
• Court: Virginia Supreme Court

563 S.E.2d 690

264 Va. 101

CITY OF RICHMOND v. Junne-Anne HOLT.

Record No. 011742.

Supreme Court of Virginia.

June 7, 2002.

William Joe Hoppe (Phillip L. Hairston; Office of City Atty., on brief), Richmond, for appellant.

Catherine A. Lee (Antonio Q.L. Rhodes; Coates & Davenport, on brief), Richmond, for appellee.

Present: All the Justices.

Opinion by Justice BARBARA MILANO KEENAN.

In this appeal of a judgment in favor of a plaintiff in a personal injury action, the primary issue is whether the evidence was sufficient to establish constructive notice to a municipality of a defect in a municipal right-of-way adjoining a public street.

We state the evidence in the light most favorable to the plaintiff, Junne-Anne Holt, the prevailing party in the trial court. Tashman v. Gibbs, 263 Va. 65, 68, 556 S.E.2d 772, 774 (2002); City of Bedford v. Zimmerman, 262 Va. 81, 83, 547 S.E.2d 211, 212 (2001). At a jury trial, the evidence showed that Holt sustained injuries when she fell after stepping into a hole in a "grassy area" located near the curb of a public street. The grassy area was within the boundaries of a right-of-way adjoining the street, and was owned and controlled by the City of Richmond (the City).

About 9:00 p.m. on October 28, 1997, Holt left her church at the intersection of Oakland Avenue and Columbia Street. She crossed Oakland Avenue and walked along Columbia Street to return to a car driven by her friend, Evelyn Hyde, who had taken Holt to church. Because there was no "off-street" parking available for those attending the church, Hyde parked her vehicle one block from the church on Columbia Street.

The church was located on a city block that was bordered by a paved sidewalk. Although the adjacent block where Hyde parked her vehicle did not have a paved sidewalk, a crosswalk connected the two blocks for use by pedestrians crossing Oakland Avenue. This crosswalk led directly to the grassy area along the curb of the block where Hyde parked her vehicle.

It was dark outside as Holt walked along Columbia Street to Hyde's vehicle. Holt was holding in her arms her ten-month-old grandson, her coat, her purse, and a diaper bag.

Holt walked in front of Hyde's car and stepped onto the grassy area alongside the curb to enter the vehicle through a passenger-side door. As Holt entered the grassy area, she stepped into a hole and fell to the ground. The hole was four to six inches deep and covered Holt's foot up to her ankle. The hole had some grass growing in it and was located about two to five feet away from the curb. As a result of her fall, Holt sustained various injuries, including fractures to both her legs.

Holt filed a motion for judgment against the City alleging, among other things, that she was injured as a result of the City's negligence. At trial, she testified that she had attended church in the same location for about 15 years, and that she was not aware of the hole before her fall. Holt stated that she never parked on the side of the street where the hole was located. She further testified that when she stepped into the hole she was not looking "[a]nywhere in particular."

Erika L. Holliday, a member of Holt's church for about 19 years, testified that church members regularly walked in the grassy area where the hole was located when they parked along that section of Columbia Street. Holliday stated that she personally observed a person trip "over the hole" between eight months and one year before Holt's fall. Holliday further testified that the hole could not be seen in the dark because it was shallow and grass had begun to grow in the hole. She stated that the hole resulted from the removal of a mailbox at that location between three and five years before Holt's fall.

Barbara J. Welch, who also attended Holt's church, testified that both her children had tripped and fallen in the hole two or more years before Holt fell. Welch stated that the hole "had grass on it, and you really didn't know it was there until you got there." She also stated that the church members regularly walked over the grassy area where the hole was located.

Ray Bohannon, the Maintenance and Claims Examiner for the City's Department of Public Works, testified that the City did not have any procedures for routinely inspecting its sidewalks and pathways. He also testified that the City provided maintenance to Oakland Avenue and Columbia Street because they are public streets. At the conclusion of Holt's case, the City made a motion to strike the evidence, which the trial court took under advisement.

The City presented the testimony of Ethel A. Williams, who had attended Holt's church for about 25 years. Williams testified that she occasionally parked her vehicle near the area where Holt fell, and that she had not seen the hole before Holt's accident. Williams also testified that a public mailbox was previously located in the general area where Holt fell.

After resting its case, the City renewed its motion to strike the evidence. At that time, the following exchange occurred between the City's counsel and the trial court:

THE COURT: I'll take it under advisement. Your motion is that they haven't proved notice or any reason to know of the condition; right?

COUNSEL: And we don't agree that this area-in this area, there was the kind of duty to—

THE COURT: I assume that. Now, you have your record clear.

COUNSEL: Yes, sir.

THE COURT: Your motion is taken under advisement.

The jury returned a verdict in favor of Holt, awarding her damages in the amount of $125,000 plus interest from the date of the accident. The City moved to set aside the verdict on various grounds, including that the evidence was insufficient to show that the City had constructive notice of the hole. The trial court denied the motion and entered judgment on the jury verdict. The City appeals from this judgment.

The City first argues that the evidence was insufficient as a matter of law to support the jury verdict. The City contends that Holt failed to prove that 1) the grassy area where Holt fell was intended by the City for use as a public way by pedestrians, and 2) the City had either actual or constructive notice of the hole where Holt fell.

In response, Holt argues that the City failed to preserve for appeal the issue whether the City intended the grassy area to be used by pedestrians as a public way. On the issue of notice, Holt concedes that the City did not have actual notice of the hole, but contends that the evidence regarding constructive notice was sufficient to present a question for the jury's consideration. We agree with Holt's arguments.

A municipality is required to exercise reasonable care to maintain in "a safe condition for passage such public ways as are opened and intended by the municipality for general use, and over which the municipality exercises or may exercise full control, for their entire width. The invitation on the part of the municipality to use such ways imposes the obligation." City of Norfolk v. Travis, 149 Va. 523, 528-29, 140 S.E. 641, 642 (1927); see also Votsis v. Ward's Coffee Shop, Inc., 217 Va. 652, 654, 231 S.E.2d 236, 237 (1977)

; Dockery v. City of Norton, 204 Va. 752, 754, 133 S.E.2d 296, 298 (1963); Wray v. Norfolk & W. Ry. Co., 191 Va. 212, 221, 61 S.E.2d 65, 70 (1950). However, before a municipality can be held liable for injuries resulting from a defect in the condition of a public way, the municipality must have actual or constructive notice of the particular defect that gave rise to the injury. City of Virginia Beach v. Roman, 201 Va. 879, 882-84, 114 S.E.2d 749, 752-53 (1960); West v. City of Portsmouth, 196 Va. 510, 513-15, 84 S.E.2d 503, 505-07 (1954); Travis, 149 Va. at 534-35, 140 S.E. at 644; see Commonwealth v. Coolidge, 237 Va....