Roll 'R' Way Rinks, Inc. v. Smith

• Decision Date: 01 September 1977
• Docket Number: No. 760721,760721
• Citation: 237 S.E.2d 157,218 Va. 321
• Parties: ROLL 'R' WAY RINKS, INC. v. Michael Lester SMITH. Record
• Court: Virginia Supreme Court

Page 157

237 S.E.2d 157

218 Va. 321

ROLL 'R' WAY RINKS, INC. v. Michael Lester SMITH.

Record No. 760721.

Supreme Court of Virginia.

Sept. 1, 1977.

I. Lionel Hancock, III, Norfolk (Campbell, Lustig & Hancock, Norfolk, on brief), for plaintiff in error.

Guy E. Daugherty, Willis J. Spaulding, Norfolk (Howell, Anninos, Daugherty & Brown, Norfolk, on brief), for defendant in error.

Before CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

POFF, Justice.

Plaintiff Michael Lester Smith filed a motion for judgment seeking damages for injuries sustained in a fall at a roller skating rink operated by defendant Roll 'R' Way Rinks, Inc. Plaintiff alleged that defendant "permitted its premises . . . to be maintained in an improper condition and unsafe for the use of the public, and . . . negligently and carelessly failed to give the plaintiff any warning whatsoever of the aforesaid defect. . . ." By final order entered February 2, 1976, the trial court confirmed a jury verdict awarding plaintiff damages in the sum of $85,000.

Defendant's rink was constructed in a building formerly used as an armory and postal service facility. The oval skating area was separated from the "off-skate" area by a concrete block wall 42 inches high. The skating surface consisted of "Temblin" composition boards 11/8 inches thick. The boards, coated with an epoxy substance and splined together at the edges, were laid upon a concrete floor. In the off-skate area the concrete was covered by carpet 3/8 inch thick. In the dividing wall were five openings, each nine feet wide, affording skaters access between the two areas. At each opening, the 3/4 inch grade separation between the two floors was covered by a transition ramp. Made of a tempered steel plate, the ramp was nine feet long, 10 inches wide, and 1/8 inch thick. The plate, which was flat when purchased by defendant, was bent along one longitudinal edge to form a lip 7/8 inch wide. Counter-sunk screw holes were bored in this lip. The distances between the holes varied from 131/2 inches to 16 inches. The lip was fastened to the top of the Temblin with wood screws and the other longitudinal edge rested upon the carpet. This edge was left unfastened in order to accommodate expansion and contraction of the Temblin.

On April 22, 1974, a private party of 40 to 50 people, including plaintiff, rented defendant's rink for approximately two hours. During that time, plaintiff, who described himself as an "average skater", had crossed the transition ramps, including the ramp opposite the skate rental room, several times and had experienced no difficulty. While attempting to skate across that ramp to return his rented skates, plaintiff fell and injured his right knee.

I

Defendant contends that plaintiff's evidence was not sufficient to raise jury questions concerning negligence and proximate cause. Before reviewing the evidence as a whole, we consider a threshold argument. Defendant argues that the trial court erroneously admitted the testimony of Nancy Kline concerning the condition of the steel plates and certain accidents she and other skaters had suffered.

Kline, a 17-year-old high school student, had used defendant's rink "on an average of about five times a week" for approximately three years after she learned to skate at the age of 12. She testified that she had noticed the steel plates raised above the skating surface, once as high as "maybe a little over a quarter of an inch". "I noticed the plate above the floor most often when I fell over it," she said, "which (as a beginner) I did do several times." "After a while," she continued, "you remember it is there and you learn to step over it." "Several times" she saw other "beginning skaters" fall. Kline described two accidents which she said occurred after she became a "club member" in February 1974. Once, she "saw a lady fall over it (a plate)." "She turned around backwards and fell on her back" and "complained of her leg". Defendant's manager "stayed with her" while "someone in the office called an ambulance." On another occasion, one of her skating companions "fell on the plate" and "scratched her leg"; Kline saw "a screw sitting up out of the plate" and took it to a "floor guard", one of defendant's employees. "He looked at it, shrugged his shoulders, and threw it in the trash can." Kline said that she had never made any complaint directly to the manager because "I didn't feel it my place to tell him how to fix it or how to run this rink".

As below, defendant argues on brief that, for this testimony to be admissible, "it must be relevant in time and be such as reasonably established that the condition on the day in question was substantially the same as described on previous occasions."

We look to the record to determine the purpose for which Kline's testimony was offered and the purpose for which it was admitted. Responding to defendant's objection at trial, plaintiff's counsel said: "The question is . . . notice of the fact and condition to be repaired and corrected . . . not the condition as it existed, but simply notice to management." Holding that it "would be a question that the jury would consider in assessing as to whether they had knowledge or notice of this defect and that they had been negligent in not taking care of it", the trial court overruled the objection and admitted the testimony.

On appeal, the parties agree that evidence of prior accidents is not admissible for the purpose of proving negligence or causation at the time of the accident in issue.

"Evidence of other similar accidents or occurrences, when relevant, is admissible to show that the defendant had notice and actual knowledge of a defective condition; but it is well settled that evidence of prior accidents or occurrences is not admissible and can have no effect in establishing the defendant's knowledge of a danger unless the plaintiff shows that those prior accidents or occurrences happened at substantially the same place and under substantially the same circumstances, and had been caused by the same or similar defects and dangers as those in issue, or by the acts of the same person. (Citations omitted)." Spurlin, Administratrix v. Richardson, 203 Va. 984, 989, 128 S.E.2d 273, 277 (1962). ¹

This rule springs from the lessons of human experience that similar causes can be expected to produce similar effects. By definition, the test of admissibility is not identity but substantial similarity. If the place, the circumstances, and the defect associated with a prior accident are substantially the same as those in issue, evidence of that accident is admissible to show notice of the existence of the defect and notice of its dangerous potential.

We believe the facts and circumstances described by Kline meet the test of substantial similarity. Like the accident in issue, the accidents she witnessed occurred at defendant's rink and involved skaters who fell over steel transition plates. It is true that Kline did not state that all of the falls occurred on the same ramp where plaintiff fell. Yet, as will appear in more detail later in our opinion, the testimony of defendant's manager had established earlier than the five plates were made of identical material, were designed in identical fashion, and were installed in the same manner, and that the screws by which they were fastened repeatedly worked loose and had to be replaced. ²

Defendant argues that the accidents Kline described were not " relevant in time" to plaintiff's accident. While Kline's testimony did not fix the exact times of the two accidents involving injuries, she said that they occurred after she became a club member in February 1974. Through its manager and its floor guard, defendant had actual knowledge of those two accidents but chose to offer no evidence to show that they occurred after the date of plaintiff's accident. Considering the inference this raises and reading Kline's testimony as a whole, we believe the jury was entitled to conclude that these two accidents occurred some time after February 1974 and before April 22, 1974, the date of plaintiff's injury. In that time frame, they were clearly relevant to the question of notice of a dangerous condition. The other accidents Kline described occurred while she was still a "beginner", and defendant contends that they were too remote to be relevant. It has been held that remoteness goes to the weight of the evidence rather than to its admissibility. Lake Shore & M. S. R. Co. v. Beall, 13 Ohio C.C.R. 605, 6 Ohio C.Dec. 250 aff'd without opinion, 53 Ohio St. 674, 44 N.E. 1144 (1895). In Virginia, remoteness of defective conditions goes to the question of admissibility, and that question is left to the sound discretion of the trial court. Shenandoah Valley, etc. Co. v. Murray, 120 Va. 563, 579-80, 91 S.E. 740, 745 (1917). The same rule applies, of course, to evidence of prior accidents offered to show notice that a defect is potentially dangerous.

As we have said, Kline's testimony concerning defective conditions and prior accidents was offered and admitted only for the purpose of showing such notice. Upon timely request, defendant would have been entitled to a cautionary instruction admonishing the jury that her testimony was not competent to prove negligence or causation at the time of plaintiff's accident. No such request was made, and we hold that the trial court did not abuse its discretion in admitting the testimony.

II(a)

We consider now whether the evidence as a whole was sufficient to raise jury questions concerning negligence and proximate cause.

The owner of premises is not an insurer of an invitee's safety, but he owes the invitee the duty to use ordinary care to maintain the premises in a reasonably safe condition, and, unless a dangerous condition is open and obvious, the invitee has the right to assume that the premises are in such condition. Culpepper v. Neff, 204 Va. 800, 804-05, 134 S.E.2d 315, 318-19...