Present:    All the Justices

EDNA WOOD

v.   Record No. 981197 OPINION BY JUSTICE CYNTHIA D. KINSER
                                        June 11, 1999
WOOLFOLK PROPERTIES, INC., ET AL.

        FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                  Walter W. Stout, III, Judge


      The primary issue in this premises liability case is

whether the circuit court erred by admitting evidence

pertaining to the absence of prior accidents.    Finding

error in the circuit court’s judgment, we will reverse.

                                I.

      This appeal arises out of an accident that occurred on

the evening of May 20, 1994, in front of Ruth’s Chris Steak

House (Ruth’s) located in Chesterfield County.    The

plaintiff, Edna Wood (Wood), and several members of her

family ate dinner at the restaurant that night.   After

finishing their dinner, the Wood party prepared to leave

the restaurant.   While Wood’s son went to the parking lot

to retrieve his vehicle, Wood and the others waited outside

the restaurant.   Wood’s son drove the vehicle into a

circular driveway in front of the restaurant and stopped it

approximately two or three feet from the curb.    As Wood

approached the rear door of the stopped vehicle, she

appeared to “step[] into air” and fell down.    As a result
of the fall, Wood sustained physical injuries and incurred

medical expenses.

     Ruth’s is located in a shopping center that is owned

by defendant Bellgrade Development Company, Inc.

(Bellgrade).   Defendant Woolfolk Properties, Inc.

(Woolfolk), is the “managing member” of Bellgrade and

provides property management and maintenance services to

the shopping center.

     The curb where Wood fell is a transitional area that

is slanted rather than perpendicular.    The transitional

curb between the sidewalk and the circular driveway has a

thirty-degree slope, is eight inches long, and drops four

inches in height from the sidewalk to the driveway.    The

sidewalk, transitional curb, and driveway are designed with

varying colors, patterns, and textures of brick in order to

give pedestrians visual clues with regard to the different

surfaces, heights, and grades as they walk from the

driveway onto the sidewalk and into the restaurant.

     Although the original design of the restaurant did not

call for the curb to be painted, it had been painted white

sometime prior to the night of Wood’s accident.    In 1992,

Charles Lytton, chief executive officer of Woolfolk,

decided that the transitional area should be painted white

for both aesthetic and safety reasons.   He testified that


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it was initially an aesthetic idea but that the white paint

also made the curb area more visible.    He described the

paint as “an enhancement to visibility.”

     On April 22, 1997, Wood filed a motion for judgment

against Woolfolk and Bellgrade alleging that the defendants

negligently owned, operated, and maintained Ruth’s and the

surrounding premises; allowed certain unsafe conditions to

exist on Ruth’s premises; and failed to warn the plaintiff

about these unsafe conditions.     Prior to trial, Wood filed

a motion in limine to exclude any evidence regarding the

absence of prior accidents at the curb area where she fell.

Initially, the circuit court sustained the motion.

However, at trial, the court reconsidered its ruling and

allowed Lytton to testify, during cross-examination, that

no one had fallen across the curb line prior to Wood’s

accident. ∗   The court reasoned that the testimony rebutted

the inference that, because of Lytton’s decision to paint

the curb, the defendants had notice of an unsafe condition.

During the cross-examination of Lytton, the court cautioned

the jury that the evidence pertaining to the lack of prior

accidents should be considered only with regard to the

notice issue.




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     At the close of Wood’s evidence, the court sustained a

motion to strike with regard to Woolfolk and dismissed it

from this action.   The court took the motion under

advisement as to Bellgrade and allowed the case to proceed

to the jury.   After deliberating, the jury returned a

verdict in favor of Bellgrade.      Wood then moved the court

to set aside the verdict, but the court overruled the

motion and entered judgment in favor of Bellgrade on March

24, 1998.

                              II.

     We granted Wood this appeal on two assignments of

error:    (1) that the circuit court erred by allowing the

defendants to introduce evidence regarding the absence of

similar accidents at the curb area prior to Wood’s fall;

and (2) that the court erred by granting the motion to

strike the evidence as to Woolfolk.

     We find no merit to the second assignment of error.

The uncontradicted testimony of Wood’s own witness, Lytton,

establishes that Woolfolk managed the shopping center in

which Ruth’s is located and provided maintenance services

for it.   Lytton further stated that, when he decided to

have the transitional curb area painted white, he was

__________________
     ∗
       Wood called Lytton as a witness. The defendants
elicited the challenged testimony during their cross-


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acting as an owner of the property and was not performing a

maintenance function.    Moreover, the thrust of Wood’s claim

against the defendants was that the curb was dangerous or

unsafe in its design, not in how it was maintained.   Thus,

we conclude that the circuit court did not err in granting

the motion to strike with regard to Woolfolk, dismissing it

from this action.

     However, we reach a different conclusion with regard

to Wood’s first assignment of error.   In addressing that

issue, Bellgrade acknowledges that evidence establishing

the lack of prior, similar accidents is generally not

admissible in a negligence action.   Nevertheless, Bellgrade

asserts that this court created an exception to that rule

in Sykes v. Norfolk & Western Ry. Co., 200 Va. 559, 106

S.E.2d 746 (1959).

     In that case, this Court allowed the defendant railway

company to introduce evidence as to the number of accidents

that had previously occurred at a particular railroad

crossing.   We stated that the rule that “‘evidence of the

absence of other injuries is not admissible when timely

objection is interposed to it’” would be applicable “except

for the fact that the plaintiff had introduced the

testimony of the defendant company’s supervisor of signals

__________________
examination of Lytton.

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that he had recommended to his company that it install

automatic crossing gates and flashers at [the] crossing [in

question].”   Id. at 565, 106 S.E.2d at 751 (quoting

Sanitary Grocery Co. v. Steinbrecher, 183 Va. 495, 500, 32

S.E.2d 685, 687 (1945)).   The company had never implemented

the recommendation.   Although the plaintiff asserted that

the evidence from the supervisor of signals was to prove

that the defendant company had notice of the inadequacy of

the signals, we held “that it . . . [was] permissible for

the defendants to introduce the accident experience at the

crossing to rebut the inference of negligence that might be

made from the failure to follow this recommendation.”

Sykes, 200 Va. at 565, 106 S.E.2d at 751.

     Bellgrade argues that its evidence showing the absence

of prior accidents comes within the Sykes exception.

According to Bellgrade, the evidence rebuts the inference

that Lytton directed that the curb be painted white because

he knew that it was an unsafe area.   We do not agree.

     In Goins v. Wendy’s Int’l, Inc., 242 Va. 333, 410

S.E.2d 635 (1991), the trial court allowed the introduction

of testimony from two restaurant employees that they had

not received any complaints of food poisoning as a result

of the food served on the day that the plaintiff allegedly

consumed contaminated food.   We reversed the trial court on


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the basis of the well-established rule that “evidence of

the absence of other injuries is not admissible in a

negligence action when timely objection to it is made”

because it interjects into the trial collateral issues that

confuse and mislead a jury.    Id. at 335, 410 S.E.2d at 636.

We further stated that “a departure from the rule would

interject evidence so problematical, due to the potential

for a lack of reporting and the variables of circumstances

and conditions, that such evidence would have slight, if

any, relevancy or probative value.”     Id. at 335-336, 410

S.E.2d at 636.

     The principles reiterated in Goins apply to the

present case and preclude the introduction of evidence

showing the absence of prior accidents in the area where

Wood fell.   Initially, we note that Lytton did not specify

whether he was referring to the period of time before or

after the curb was painted when he stated that no one had

fallen across the curb line prior to Wood’s accident.    The

absence of accidents after the area was painted is not

germane to whether Bellgrade had notice of an unsafe

condition and thus painted the transitional area white

because of that knowledge.    Furthermore, Lytton’s testimony

is problematical because of the potential that a customer

will not report an accident.    Id.   Thus, to allow evidence


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concerning the absence of prior accidents in premises

liability cases for the purpose of refuting evidence

showing notice of an unsafe condition would eviscerate the

rule that we restated with approval in Goins.

     In addition, the present case is distinguishable from

Sykes.   Although the plaintiff in that case offered the

evidence concerning the recommendation by the supervisor of

signals to establish notice of inadequate signals, we

recognized that the evidence created an inference of

negligence because of the failure to follow the

recommendation.   Therefore, evidence as to the accident

history at the crossing in question was admissible, not in

regard to the notice issue, but to rebut that inference of

negligence.   In the present case, Lytton’s testimony about

the lack of prior accidents is not arguably relevant to any

issue other than notice.

     Finally, we do not believe that the introduction of

this evidence was harmless error.   It interjected

collateral issues into the trial, and we are unable to say

that it did not confuse or mislead the jury.    The

challenged evidence was prejudicial to Wood.    See Sanitary

Grocery Co., 183 Va. at 499, 32 S.E.2d at 686-87 (holding

evidence showing absence of prior accidents misleads jury

and is prejudicial).


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        Thus, for the reasons stated, we will affirm the

circuit court’s judgment striking the evidence with regard

to Woolfolk and dismissing it from this action.    We will

reverse the circuit court’s judgment allowing the

introduction of evidence relating to the absence of prior

accidents and remand for a new trial.

                                              Affirmed in part,
                                              reversed in part,
                                              and remanded.

JUSTICE COMPTON, dissenting in part.

        I agree that the trial court correctly granted the

motion to strike the evidence regarding defendant Woolfolk

Properties, Inc.    I do not agree, however, that the trial

court erred by allowing evidence regarding the absence of

similar accidents at the curb area prior to plaintiff's

fall.

        This case is controlled by Sykes v. Norfolk & W. Ry.

Co., 200 Va. 559, 564-65, 106 S.E.2d 746, 751 (1959).      The

majority's argument attempting to distinguish Sykes from

the present case is unpersuasive.

        Sykes stands for the proposition that when a plaintiff

presents evidence of a contemplated change by the defendant

in the conditions at the accident scene, in an effort to

show notice of a defective condition, evidence of the

absence of prior accidents at the scene becomes relevant


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and admissible for the limited purpose of showing the lack

of notice.   This is precisely the situation in the present

case, and the trial court correctly so ruled.

     Consequently, I would affirm the judgment below in all

respects.




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