UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STANLEY M. BELL, SR.,
Plaintiff-Appellant,

v.                                                              No. 97-2191

NASH-FINCH COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CA-96-101-A)

Argued: January 28, 1999

Decided: April 2, 1999

Before WIDENER, MURNAGHAN, and HAMILTON,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Karel Brown Ryan, RYAN LAW FIRM, P.C., Tazewell,
Virginia, for Appellant. Paul Arthur Billups, MUNDY & ADKINS,
Huntington, West Virginia, for Appellee. ON BRIEF: Gerald L.
Gray, GERALD GRAY LAW FIRM, Clintwood, Virginia, for Appel-
lant.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

The case at bar is a diversity matter in which a truck driver (Stan-
ley M. Bell) appeals from the district court's grant of judgment as a
matter of law to Nash-Finch at the close of all of the evidence. The
district court concluded that Bell failed to establish a prima facie case
of negligence because he could not establish that Nash-Finch had suf-
ficient notice of the defective condition. Moreover, the district court
concluded that Bell's failure to use the jack correctly also contributed
to his injury. Bell claims that the court erred in failing to find that the
prior repairs made to the pallet jack he was using when he was injured
established sufficient notice to Nash-Finch that they could be held lia-
ble in negligence. Moreover, he claims, the court's failure to admit
evidence of subsequent repairs made to the same pallet jack was also
error. Having reviewed Bell's claims, we find no error and affirm.

I.

Bell is a commercial truck driver who hauls products in interstate
commerce. Nash-Finch is a grocery distributor. On the assignment
during which he was injured, Bell was in the process of shelving
products he had delivered to Nash-Finch's warehouse.

Bell arrived at Nash-Finch's warehouse on June 28, 1994 and
began unloading his truck at approximately 10:30 a.m. According to
Bell, the receiving clerk at the warehouse generally is responsible for
ensuring that the loading docks remain clear and the products are
shelved properly. The warehouse was very busy on the day and at the
time in question, and Bell had to assist in loading the products on the
warehouse shelves.

In order to shelve the products properly, Bell was required to oper-
ate a pallet jack. A pallet jack is a motorized platform on which the

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operator rides as he or she shelves the items. The jack has two metal
protrusions ("arms") extending from its front, which allow the opera-
tor to lift the wooden pallets on which the products sit and put them
on the appropriate shelves. Its platform is surrounded by metal railing
for the protection and the support of the operator. Finally, the operator
engages the pallet jack by moving its "T-bar" and stops the jack when
the T-bar is returned to the upright position.

Bell was assigned pallet jack 107, which had been repaired five
times over the two-year period before his use.1 Some of the repairs
merely required the replacement of parts, such as a solenoid or a
potentiometer.2 Serious repairs were made in October 1993, when the
jack was run off of one of the loading docks and damaged. Those
repairs required the replacement of several mechanical parts and the
rewiring of the controls. None of the repairs made were to the motor
that controlled the electric braking system.

Bell operated pallet jack 107 for approximately two hours before
his accident. He testified that during that time, the manual brake mal-
functioned but the electrical brake worked properly. Thus, he was
able to stop the pallet jack by returning the T-bar to the upright posi-
tion. Bell never reported the manual braking problem to any Nash-
Finch official and there is no evidence that they otherwise knew of
it.

Shortly before his accident, Bell determined that he could not suffi-
ciently maneuver the jack to shelve the goods because the warehouse
isles were crowded. Therefore, he stepped off of the riding platform
and began to operate the jack from the floor of the warehouse. He
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1 The jack also was repaired several months after his accident for
mechanical problems unrelated to the electric motor or the hazard (fail-
ure to stop) at issue here. Finally, more than a year after the accident, it
was scrapped. See J.A. at 122.
2 The record shows that the solenoid was replaced on February 19,
1992. See J.A. at 111. The SCR, which affects the drive motor, was
replaced in April 1992. See J.A. at 112. The potentiometer, which is a
device that measures electromotive forces, see WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY 1775 (1993), was replaced in December 1992.
See J.A. at 113.

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operated the jack by standing behind it and guiding it to the desired
location.

At approximately 12:30 p.m., Bell was operating the jack in this
manner and was backing up to continue shelving the goods. While
doing so, he backed into the bright yellow beam behind him. When
he pushed the T-bar into the upright position, it did not stop as it had
all morning. As a result, Bell's foot was crushed between the jack and
the beam. He then filed the instant lawsuit.

II.

We review de novo the grant of judgment as a matter of law pursu-
ant to FED. R. CIV. P. 50(a). See In re Wildwood Litigation, 52 F.3d
499, 503 (4th Cir. 1995). In doing so, we view the evidence and all
reasonable inferences in the light most favorable to the nonmovant.
See id. The dispute is governed by Virginia law, as Erie v. Tompkins,
304 U.S. 64, 78 (1938), directs us to apply the law of the forum state
in diversity matters.

A. Actual Notice

The district court concluded that the records showing that the pallet
jack in question had been repaired on five occasions prior to the acci-
dent were insufficient to establish either actual or constructive notice
to Nash-Finch that the particular problem at issue here -- an alleged
failure of the electrical system that prevented the machine from shut-
ting off -- existed. Moreover, Bell had not told Nash-Finch that he
had been experiencing a problem all morning with the manual braking
system. As that was the only evidence presented on the notice issue
(i.e., the repair records and Bell's testimony), Bell could not establish
a prima facie case of premises liability.

The parties do not dispute that under Virginia law, Bell was a busi-
ness invitee. See Marin v. Myers, 665 F.2d 57, 58 (4th Cir. 1981)
(interpreting Virginia law). A property owner owes an invitee a duty
of reasonable care and is liable for the invitee's injuries if they are
caused by dangerous conditions about which the owner knew or
should have known. See Roll "R" Way Rinks v. Smith, 237 S.E.2d 157,

                    4
161 (Va. 1977). To recover for his injuries, then, Bell must show that
Nash-Finch had actual or constructive notice of the dangerous condi-
tion -- i.e., the failure of the jack to shut off when the electric braking
mechanism was activated. See Franconia v. Clark , 463 S.E.2d 670,
673 (Va. 1995).

The record reveals that Nash-Finch had no actual knowledge of the
problem at issue. None of Bell's evidence suggests that Nash-Finch
had actual knowledge of the specific defect (i.e., a defective motor
that failed to disengage when the T-bar was placed in an upright posi-
tion). First, Bell admitted that the problem with the motor occurred
for the first time during his use when he had the accident. Until that
point, he had used the jack all morning and had been able to stop it
successfully. Second, Bell presented no evidence that specifically
related to the type of electrical problem of which he now complains.
There are no complaints that the T-Bar failed to disengage the motor
when placed in the upright position, nor are there repair records indi-
cating a repair of an electrical problem with the motor. As a result,
we cannot conclude that Nash-Finch had actual notice of the defective
condition.

B. Constructive Notice

Even if actual notice is lacking, liability may still be established if
Nash-Finch had constructive notice of the defective condition. See
Roll "R" Way Rinks, 237 S.E.2d at 161. Bell contends that such notice
is present. He points to five repairs to the jack between February 1992
and June 1994 -- including a major repair on October 19, 1993
requiring the replacement of the steering yoke, handle, knuckle and
roll pin and adjusting the brakes -- and argues that they are sufficient
to show that Nash-Finch had constructive notice of the defective con-
dition. He argues that a history of danger on the premises gives the
owner constructive notice of latent defects that must either be repaired
or warned of and cites Appalachian Power Co. v. Sanders, 349 S.E.2d
101, 103-04 (Va. 1986).

However, that contention fails for several reasons. First, the defec-
tive condition did not exist long enough to give Nash-Finch reason-
able notice of it. Under Virginia law, the invitee may hold the owner
liable under a constructive notice theory only where the dangerous

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condition has "`existed for such a length of time as to make it the
owner's duty in the exercise of ordinary care to have discovered it.'"
Roll "R" Way Rinks, Inc. v. Smith, 237 S.E.2d 157, 161 (Va. 1977)
(citing Cannon v. Clarke, 167 S.E.2d 352, 355 (Va. 1969)). Here, Bell
himself admitted that the electric braking system properly engaged all
morning and did not fail until he had his accident. There were no prior
reports to Nash-Finch of the failure of the electric braking system or
that the jack failed to disengage for some other reason. There was no
other evidence that Nash-Finch had some reason to know that the jack
would not stop when the T-bar is returned to the upright position.
Therefore, Bell simply cannot establish that the condition existed for
a sufficient amount of time to give Nash-Finch notice of the problem
or that Nash-Finch could have discovered the problem with a reason-
able inspection.

Second, the repairs introduced by Bell are unrelated to the defec-
tive condition at issue. Bell introduced repair records of five repairs
made in the two-year period prior to his accident. While some are
serious -- the October 19, 1993 repairs required the replacement of
many parts and the rewiring of the controls -- none have been shown
to have had any relation to the failure of the motor to disengage. In
fact, Bell does not argue that any of the repairs had a specific relation-
ship to the defect. Rather, he maintains that because the jack required
some electrical work a year or more before his accident, a future unre-
lated, "unpredictable" electrical problem was foreseeable. See Appel-
lant's Br. at 8.

However, Virginia law does not permit us to draw such conclu-
sions. Virginia's courts require foreseeability of the hazard. See
Freeman v. Case Corp., 118 F.3d 1011, 1014-15 (4th Cir. 1997)
(interpreting Virginia law). For example, in Roll "R" Way Rinks, the
plaintiff was injured when he fell on a metal ramp leading to the rink
floor. See id. at 159. The rink owner previously had made many tem-
porary repairs to the exact part of the ramp that caused the safety haz-
ard. See id. at 162. As a result, he had constructive, if not actual,
knowledge of the hazard and was held liable. See id. Similarly, in
Franconia Assocs. v. Clark, 463 S.E.2d 670, 673 (Va. 1995), the
plaintiff, an employee of a hair salon in the defendant's shopping
mall, was injured while chasing a thief through an outer door of the
mall. See id. Two weeks prior to the incident, other mall patrons had

                     6
trouble with the door, which sprang back too quickly. See id. at 673.
The defendant's maintenance personnel checked the door during the
two-week period before the accident for just such a reaction as that
which injured the plaintiff. See id. Therefore, the defendant had con-
structive notice of the hazard.

Those cases present far different factual scenarios than the instant
case. The defendants in those cases were well aware of the hazards
faced by their invitees because the hazards surfaced prior to the
respective accidents. By contrast, the hazard at issue here surfaced
only an instant before the accident, according to the injured party
himself. Until then, there had been no warning that the electric motor
would fail to disengage the jack. On that record, we cannot conclude
that Nash-Finch had any notice of a dangerous condition that could
subject them to liability in negligence.3

III.

Bell also has appealed the district court's refusal to admit evidence
of subsequent repairs made to the jack before its eventual retirement
more than a year after the accident. Bell argues that they are relevant
to the negligence issue. The district court's decisions to admit or
exclude evidence are reviewable for abuse of discretion. See Distaff,
Inc. v. Springfield Contracting Corp., 984 F.2d 108 (4th Cir. 1993).

The district court's exclusion of the evidence was not an abuse of
its discretion. Under Fed. R. Evid. 407, subsequent remedial measures
are inadmissible if offered "to prove negligence, culpable conduct, a
defect in a product, a defect in a product's design, or a need for a
warning or instruction." Id. Thus, to the extent that Bell offers the
subsequent repairs to establish Nash-Finch's negligence, they are
inadmissible, and it was not an abuse of discretion to exclude them.

Moreover, the subsequent repairs are irrelevant to whether Nash-
Finch had notice of the defective condition. Since Bell's accident is
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3 We also note that Bell has referred to Nash-Finch's negligence in fail-
ing to affirmatively inspect, repair and maintain the jack. However, Bell
has presented no evidence that the repairs made were tardy, or that the
jack was not otherwise maintained.

                    7
the first reported incident involving that hazard, reports of repairs to
the jack following Bell's accident that are unrelated to the hazard do
nothing to establish or disprove that Nash-Finch knew or had reason
to know of the defect or hazard before Bell was injured. Therefore,
the evidence also could have been excluded as irrelevant. See FED. R.
EVID. 402 (stating that irrelevant evidence is not admissible).

CONCLUSION

In short, Bell suffered a terrible, unfortunate accident. However, he
has not established a prima facie case of premises liability against
Nash-Finch because he cannot establish that the company had either
actual or constructive notice of the hazard. Moreover, the subsequent
repair records are not admissible. In light of our conclusion here, we
need not reach the contributory negligence issue raised below.
Accordingly, the judgment is hereby

AFFIRMED.

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