UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GLEN A. RUSHER,
Plaintiff-Appellant,

v.

LOWE'S HOME CENTERS,
INCORPORATED,
Defendant & Third Party
                                                                  No. 95-1864
Plaintiff-Appellee,

v.

STEVEN J. NIX; JACQUELINE ANNE
WILLIAMS, LIMITED, d/b/a The
Double Deuce,
Third Party Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Tommy E. Miller, Magistrate Judge.
(CA-94-440-2)

Argued: April 1, 1996

Decided: August 12, 1996

Before HALL and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Webb Drescher, BREIT, DRESCHER & BREIT,
P.C., Norfolk, Virginia, for Appellant. Neil Samuel Lowenstein,
VANDEVENTER, BLACK, MEREDITH & MARTIN, L.L.P., Nor-
folk, Virginia, for Appellee. ON BRIEF: Michael Lee Goodove, Bil-
lie J. Hobbs, BREIT, DRESCHER & BREIT, P.C., Norfolk, Virginia,
for Appellant. Dean T. Buckius, VANDEVENTER, BLACK, MERE-
DITH & MARTIN, L.L.P., Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

In this diversity action for damages he suffered as the result of a
nasty fall at the defendant's business premises, Glen A. Rusher
appeals the judgment of the district court, entered on the jury's ver-
dict, awarding him nothing. We affirm.

I.

Rusher owns and operates a drywall installation business. On Sat-
urday, April 13, 1991, he drove his pickup truck to Lowe's Home
Centers in Chesapeake, Virginia, to pick up some building materials.
Rusher noticed the nearly filled parking lot and discerned that the
store was busy. He drove through a security gate around to the rear
of the building and pulled up to the loading dock, so that he could
enter the store nearer the contractor sales department. Rusher exited
his truck and ascended the left of two sets of staircases that had been
affixed to either end of the dock.1

Rusher went to contractor sales and placed an order for corner
bead, then he shopped for some other things. He paid for his pur-
_________________________________________________________________
1 In addition to the two staircases, a long, wide concrete ramp emanat-
ing from the extreme right of the dock provided access to the rear of the
store.

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chases and walked back out onto the loading dock, noting that the
corner bead had already been loaded into the truck bed. As soon as
Rusher got in his truck to leave, however, he realized that he had for-
gotten the sales receipt for the corner bead, without which he would
not be permitted to exit the security gate.

Rusher jumped back out of his truck and looked toward the loading
dock area, trying to spot the salesperson who had assisted him with
the corner bead. He then noticed for the first time a third set of stairs
that were adjacent and perpendicular to the middle of the dock. These
stairs were narrower than the other two, and, unlike the others, were
not equipped with handrails.

As it turned out, the stairs were not attached to the loading dock
by any forces other than friction and gravity, though this crucial bit
of information may not have been immediately apparent to a person
approaching the stairs head-on. The stairs had been brought to Lowe's
by another customer, and had been placed against the dock by an
unknown person or persons some minutes before the accident.

Rusher climbed this third set of stairs and re-entered the store; he
found the salesperson and retrieved his receipt. Rusher came back
outside and attempted to descend the same stairs. When Rusher strode
onto the top step, the stairs toppled, sending him crashing to the pave-
ment below.2

Rusher broke both wrists and his right ankle. Pins inserted through
the skin into the right wrist caused a staphylococcus infection in the
bone, which had to be treated with intravenously administered antibi-
otics. Rusher continues to suffer discomfort from the hardware
inserted into his ankle.
_________________________________________________________________
2 The uncontradicted expert testimony was that, upon ascent, the cumu-
lative coefficient of friction between the stairs and the loading dock (at
the top) and the stairs and the parking lot (at the bottom), in combination
with the down and inward force exerted by Rusher's momentum, were
sufficient to allow the stairs to remain in place. Upon descent, however,
the outward force generated by Rusher's momentum overcame the other
forces at work, causing the stairs to break away. The stairs retained their
structural integrity notwithstanding the accident.

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Rusher filed suit in the district court on May 6, 1994, asserting that
Lowe's had negligently allowed the third set of stairs to remain stand-
ing against the loading dock. Lowe's denied that it was at fault, and
countered that, in any event, Rusher's use of the stairs amounted to
contributory negligence.3 The parties consented to proceed before a
magistrate judge,4 and a jury trial commenced on January 31, 1995.

II.

Among Rusher's witnesses were Keith M. Harris and Curtis L.
Drake, both of whom worked for Lowe's on the date of the accident.
Harris testified that he had seen the stairs against the loading dock
from a distance, but that he did not attempt to remove them. Harris's
memory of the incident was spotty; he could not recall whether he had
considered the situation to be dangerous or why he had otherwise
decided not to act.

Drake, the delivery supervisor, testified that he had been using the
telephone in the warehouse manager's office, and that he had periodi-
cally looked out across the dock through the office window. He said
that he saw two men and another employee, Sheldon Brown, standing
behind a small pickup parked at the loading dock. Drake watched the
two men unload an object from the truck and place it on the parking
lot.

A bit later, Drake glimpsed Rusher ascending the loading dock at
its midpoint. Drake then noticed the stairs positioned against the dock,
and he connected them mentally with the object that the two men had
taken from their pickup. Drake testified that he had finished his con-
versation and had started outside to move the stairs when he received
_________________________________________________________________
3 Virginia retains the common-law rule that a plaintiff's contributory
negligence is ordinarily a complete bar to any recovery. See, e.g., Norfolk
& Western Ry. Co. v. Gilliam, 178 S.E.2d 499, 503 (Va. 1971) (the plain-
tiffs' failure to exercise reasonable care in keeping a lookout precluded
an award of damages for injuries sustained when the vehicle in which
they were riding collided with an oncoming train).
4 See 28 U.S.C.A. §§ 636(c)(1), -(3) (West 1996) (permitting the parties
in a civil matter to consent to trial before a magistrate judge and to
appeal the judgment obtained directly to the court of appeals).

                    4
a delivery call on the telephone intercom. Upon hanging up for the
second time, Drake looked out the office window just in time to see
Rusher fall.

The trial evidence indicated that the accident occurred only a short
time after the stairs had been placed against the loading dock. The tes-
timony of several witnesses tended to establish that Rusher descended
the stairs within five minutes of ascending them. Brown testified that
Rusher fell within six to ten minutes of the stairs being placed on the
parking lot, and Rusher himself estimated that only about twenty min-
utes passed between his initial arrival at the loading dock and the sub-
sequent accident.

The court denied cross-motions for judgment as a matter of law at
the end of Rusher's case-in-chief, and again at the conclusion of all
of the evidence. Over Rusher's objection, the court decided to submit
the issue of his contributory negligence to the jury.

The jury returned a general verdict in favor of Lowe's. Rusher
moved once more for judgment as a matter of law, or, in the alterna-
tive, a new trial. The motions were denied, and judgment was entered
on the verdict. Rusher appeals the court's decision to instruct the jury
on contributory negligence, and its denial of his motion for judgment
as a matter of law.

III.

In light of the general verdict, it is impossible to tell whether the
jury decided that Rusher had been contributorily negligent, or merely
that Lowe's had not been negligent to begin with. 5 The distinction is
unimportant in this case, however, because the evidence supports
either conclusion.

The jury could have found that Lowe's was not negligent for fail-
ing to recognize and/or rectify a potentially dangerous situation mere
_________________________________________________________________
5 See Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co.,
370 U.S. 19, 29-30 (1962) (error in the admission of evidence or in
instructing the jury as to one theory upon which a general verdict may
have rested requires the verdict to be nullified).

                    5
minutes after it had commenced. See Ashby v. Faison & Assocs., Inc.,
440 S.E.2d 603, 605 (Va. 1994) (business owner with notice that a
hazardous condition suddenly exists on his premises breaches his duty
to an invitee only if he fails to rectify the situation within "a reason-
able time"). Although Lowe's had shown Harris and Drake an instruc-
tional videotape that implored all of the company's employees to give
their immediate attention to potential accident risks, it is for the jury
to decide whether these particular employees' actions were reasonable
under the circumstances. See Brann v. F.W. Woolworth Co., 24
S.E.2d 424, 426 (Va. 1943) ("Generally, where the test of negligence
is the use of reasonable care and no definite standard of care has been
established, the question is for the jury, although the facts are not in
dispute."). Though the evidence in this case would have permitted the
jury to find that Lowe's had been negligent (indeed, the jury may
have so concluded), it was not so strong as to compel such a finding.

Likewise, the issue of contributory negligence was properly one for
the jury. The stairs themselves were admitted into evidence, and,
although Rusher may not have fully appreciated the precise danger
they presented, the jury could have concluded from its examination
that the narrow, rail-less apparatus posed a number of apparent poten-
tial risks, in consideration of which a reasonable and prudent person
would have selected one of the sturdier and readily available alterna-
tive means to access the dock.

The judgment below is affirmed.

AFFIRMED

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