Present:   All the Justices

SOUTHERN FLOORS AND ACOUSTICS, INC.

v.   Record No. 031097        OPINION BY JUSTICE DONALD W. LEMONS
                                         April 23, 2004
ANTHONY MAX-YEBOAH

FOOD LION, INC.

v.   Record No. 031140

ANTHONY MAX-YEBOAH, ET AL.

      FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                    Edward L. Hogshire, Judge

      In this appeal, we consider whether a customer who is

injured by tripping over a stack of floor tiles in a grocery

store where the floor is being re-tiled is contributorily

negligent as a matter of law and, if not, whether both the

independent contractor installing the new floor and the store

owner can be held liable to the customer for his injuries.

                  I.   Facts and Proceedings Below

      Anthony Max-Yeboah ("Max-Yeboah") tripped over a stack of

tiles in an aisle of a Food Lion, Inc. ("Food Lion") grocery

store in Charlottesville, Virginia and broke his ankle.    On

the evening of Max-Yeboah's accident, employees of Southern

Floors and Acoustics, Inc. ("Southern Floors"), a

subcontractor, were installing new floor tiles in the aisle

where Max-Yeboah was injured.    The Southern Floors employees

had spread glue on part of the floor of the aisle an hour
before Max-Yeboah entered it and were waiting for the glue to

become "tacky" so that new tiles could be installed.   One end

of the aisle was completely blocked by caution tape.

Conflicting testimony was offered concerning whether, and to

what degree, the other end of the aisle was blocked by a fan

used to dry the glue, and caution tape.

     Between 15 and 20 Southern Floors employees were working

in the aisle on a number of tasks associated with the tiling

process at the time of the accident.   Although Max-Yeboah

testified at trial that he was not aware that work was being

performed on the floors when he entered the aisle, he was

aware that work associated with the remodeling of the store

was occurring throughout the store.

     Max-Yeboah entered the aisle where the tile work was

occurring to get some frozen food.    He testified at trial that

he did not see the stack of tiles he eventually tripped over,

although he had walked past them on his way into the aisle,

because he was looking at a freezer case for frozen food.

While Max-Yeboah was standing in front of the freezer case, a

Southern Floors employee told Max-Yeboah to "go back" because

he was standing in the glue which was not yet dry.   Max-Yeboah

alleges that the man yelled at him and pointed which led Max-

Yeboah to believe that something was falling toward him.     At

trial, the employee recalled addressing Max-Yeboah but did not


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recall yelling.   In response to the instruction from the

Southern Floors employee, Max-Yeboah turned quickly to exit

the aisle, tripped over a foot-high stack of tiles placed next

to the freezer unit, and broke his ankle.

     Max-Yeboah filed suit against both Southern Floors and

Food Lion.    At trial, the jury was given conflicting

instructions.   One instruction provided that "[a] person who

hires an independent contractor is not liable for his

actions."    The jury was also instructed that, "where the owner

of the premises had control and oversight at the site where

work was being done by the contractor, he is responsible for

the negligent actions of an independent contractor."

     The trial court overruled Food Lion's objection to the

latter instruction.      The jury returned a verdict for Max-

Yeboah, finding Food Lion and Southern Floors jointly and

severally liable and awarding Max-Yeboah damages in the amount

of $30,000.   Food Lion and Southern Floors appeal the

judgments adverse to them.

                             II.   Analysis

                    A.    Contributory Negligence

     Southern Floors and Food Lion maintain on appeal that the

trial court should have held that Max-Yeboah was

contributorily negligent as a matter of law because the tiles

that he tripped over were an open and obvious condition, which


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he noticed or should have noticed when he initially entered

the aisle.   They maintain that Max-Yeboah tripped over the

tiles because he failed to be reasonably aware of his

surroundings.   Max-Yeboah contends that he was distracted by

the yelling and pointing by the Southern Floors employee and

that these special circumstances excused his failure to see

the tiles.

     When a plaintiff is injured by an open and obvious

defect, it is his burden "to show conditions outside of

himself which prevented him seeing the defect or which would

excuse his failure to observe it . . . .   When they do not

exist the law charges the party with failure to do what was

required of him."   City of South Norfolk v. Dail, 187 Va. 495,

505, 47 S.E.2d 405, 409 (1948); see also Hill v. City of

Richmond, 189 Va. 576, 584, 53 S.E.2d 810, 813 (1949).

However, "more is needed than a simple allegation of a

distraction to create a jury issue.   It [is] necessary for

[the] plaintiff to establish that his excuse for inattention

was reasonable, i.e., that the distraction was unexpected and

substantial."   West v. City of Portsmouth, 217 Va. 734, 737,

232 S.E.2d 763, 765 (1977).

     While the one-foot high stack of tiles Max-Yeboah tripped

over was clearly an open and obvious hazard, Max-Yeboah

offered evidence of an extrinsic condition, in the form of the


                                4
Southern Floors employee's yelling and pointing to excuse his

inattention.    If believed, the condition was unexpected,

placed him in fear of bodily harm, and constituted a

substantial distraction.     Determining the credibility and the

weight of the evidence is the province of the finder of fact,

in this case, the jury.     Therefore, the question of Max-

Yeboah's contributory negligence was properly submitted to the

jury.    The trial court did not err in refusing to hold that

Max-Yeboah was contributorily negligent as a matter of law.

                      B.   Liability of Food Lion

        Food Lion maintains that, even if Max-Yeboah is not

contributorily negligent, Food Lion cannot be held liable

because its employees were not involved in the work, it had no

duty to supervise an independent contractor, and it had no

actual or constructive notice of the defect.        Further, Food

Lion argues that the trial court erred in giving conflicting

and irreconcilable instructions to the jury on this issue.          We

agree.

        Southern Floors was clearly an independent contractor.

As we have previously stated, "An independent contractor is one

who undertakes to produce a given result without being in any

way controlled as to the method by which he attains that

result."     Craig v. Doyle, 179 Va. 526, 531, 19 S.E.2d 675, 677

(1942).


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          If under the contract the party for whom
     the work is being done may prescribe not only
     what the result shall be, but also direct the
     means and methods by which the other shall do
     the work, the former is an employer, and the
     latter an employee. But if the former may
     specify the result only, and the latter may
     adopt such means and methods as he chooses to
     accomplish that result, then the latter is not
     an employee, but an independent contractor.

Craig, 179 Va. at 531, 19 S.E.2d at 677; MacCoy v. Colony

House Builders, 239 Va. 64, 67-68, 387 S.E.2d 760, 762 (1990).

     In cases involving liability of owners of property for

injuries to third parties arising from conditions on the

premises caused by independent contractors, the possible

theories of recovery include vicarious liability of the owner

for the acts of the independent contractor,1 and independent

liability for the separate negligence of the owner.


     1
       The general rule regarding liability of an owner of
property for the negligence of an independent contractor has
been clearly stated: “As a general rule, an owner who employs
an independent contractor is not liable for injuries to third
persons caused by the contractor's negligence.” Kesler v.
Allen, 233 Va. 130, 134, 353 S.E.2d 777, 780 (1987), C & P
Telephone Company v. Properties One, 247 Va. 136, 140-41, 439
S.E.2d 369, 372 (1994). In Kesler, we noted:
     Exceptions exist, and the doctrine of
     respondeat superior may become applicable, if
     the independent contractor's torts arise
     directly out of his use of a dangerous
     instrumentality, arise out of work that is
     inherently dangerous, are wrongful per se, are
     a nuisance, or are such that it would in the
     natural course of events produce injury unless
     special precautions were taken. Broaddus v.
     Standard Drug Co., 211 Va. 645, 649, 179 S.E.2d
     497, 501 (1971); N. & W. Railway v. Johnson,

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     Initially, we note that Food Lion moved to dismiss Max-

Yeboah's claim of vicarious liability of Food Lion for the

negligent acts of Southern Floors.   The trial court granted

the motion and, in a pretrial order, dismissed all claims of

vicarious liability from the case.   In its order, the trial

court held that "[t]his dismissal shall have no effect on

plaintiff's general negligence claims against Food Lion."

With the claim of vicarious liability removed from the case,

the only claim remaining against Food Lion was for its alleged

independent liability for separate negligence in "failing to

see that proper warnings and safety conditions existed at the

scene of the work."

     Curiously, and over the objection of Food Lion, the trial

court instructed the jury that Food Lion could be held

"responsible for the negligent actions of an independent

contractor."   It was error to instruct the jury on a claim

that had been removed from the case.

     On appeal, most of Max-Yeboah's argument concerning

liability of Food Lion is stated in terms of vicarious




     207 Va. 980, 983-84, 154 S.E.2d 134, 137
     (1967); Smith Adm'r. v. Grenadier, 203 Va. 740,
     747, 127 S.E.2d 107, 112 (1962); Ritter Corp.
     v. Rose, 200 Va. 736, 742, 107 S.E.2d 479, 483
     (1959).
     Kesler, 233 Va. at 134, 353 S.E.2d at 780. None of the
enumerated exceptions exist in this case.

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liability, a claim removed from the case prior to trial.2

However, Max-Yeboah does argue that our decisions in Love v.

Schmidt, 239 Va. 357, 389 S.E.2d 707 (1990), and Kesler v.

Allen, 233 Va. 134, 353 S.E.2d 777 (1987) together support the

liability of Food Lion under the facts of this case and the

issues remaining at trial.

     Our holding in Kesler was explicit: "We hold that a

landlord, in the absence of one of the exceptions to the

general rule, has no vicarious liability to a tenant for the

negligence of an independent contractor in making repairs or

improvements."   Id. at 134, 353 S.E.2d at 780.   Kesler dealt

with vicarious liability, not independent liability of the

owner of property.   It has no application to this case.

     In Love, the plaintiff was injured when she fell off a

loose toilet seat.   We affirmed the judgment against the

landlord-owner, holding that "if a duty to maintain a premises

in a safe condition is imposed by contract or by law, it

cannot be delegated to an independent contractor."    Love, 239

Va. at 357, 360-61, 389 S.E.2d at 709.   Unlike circumstances

involving discrete and isolated repair and improvement, the

work at issue in Love involved regular and routine

     2
       For example, Max-Yeboah states on brief, "The issue of
Food Lion's responsibility for the negligence of Southern
Floors . . . was an issue for the jury," and "[t]he jury was



                                8
maintenance, repair, and janitorial services.    We

characterized the owner's arguments against imposition of

liability as "an attempt to delegate the landlord's common-law

duty to maintain his premises in a reasonably safe condition."

Id. at 361, 389 S.E.2d at 710.

     With regard to Food Lion's independent liability to Max-

Yeboah, the jury was properly instructed that:

     An occupant of the premises has the duty to an invitee:
     1.   To use ordinary care to have the premises
          in a reasonably safe condition for an
          invitee's use consistent with the
          invitation; but an occupant does not
          guarantee an invitee's safety; and
     2.   To use ordinary care to warn an invitee of any
          unsafe condition which the occupant knows, or by the
          use of ordinary care should know, about; except that
          an occupant has no duty to warn an invitee of an
          unsafe condition which is open and obvious to a
          person using ordinary care for his own safety.
     3.   If an occupant fails to perform either or both of
          these duties, then he is negligent.

     Food Lion argues correctly that Max-Yeboah presented no

evidence that Food Lion had either actual or constructive

notice of the alleged hazard, the stack of tiles.     It is hard

to imagine that Food Lion could have known about the tiles

because the work was ongoing and the conditions in the aisle

were constantly changing.




correct in finding Food Lion, Inc. responsible for the
negligence of its contractor."

                                 9
     Additionally, Max-Yeboah argues that Food Lion

negligently failed to supervise Southern Floors in its work.

Southern Floors was a subcontractor of a general contractor

with whom Food Lion had contracted for store renovations.

Southern Floors was neither selected nor actually supervised

by Food Lion.   As previously noted, Southern Floors was an

independent contractor.    It is illogical and antithetical to

the definition of an independent contractor to impose a duty

to supervise upon the principal when the essence of the

relationship is lack of power and control to supervise.    Food

Lion had no duty to supervise the means and method of the work

of Southern Floors and cannot be found independently negligent

for failing to do so.     MacCoy 239 Va. at 69, 387 S.E.2d at

762; Craig, 179 Va. at 531, 19 S.E.2d at 677.

                          III.   Conclusion

     We hold that the question of Max-Yeboah’s contributory

negligence was properly submitted to the jury and the trial

court did not err in refusing to hold that he was

contributorily negligent as a matter of law.    However, the

trial court did err in its instruction to the jury that Food

Lion could be held liable for the negligence of Southern

Floors.   Further, we hold that Food Lion is not independently

negligent because it did not have a duty to supervise Southern

Floors in its means and method of work, nor did Food Lion have


                                  10
actual or constructive knowledge of the stack of tiles in the

aisle.   Accordingly, the judgment against Southern Floors will

be affirmed and the judgment against Food Lion will be

reversed.

                                               Affirmed in part,
                                               reversed in part,
                                               final judgment.




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