Present: Carrico, C.J., Compton, Stephenson, 1 Lacy, Keenan, and
Koontz, JJ., and Whiting, Senior Justice

MORRISON-KNUDSEN
COMPANY, INC., ET AL.
                                          OPINION BY
v.   Record No. 961606               CHIEF JUSTICE HARRY L. CARRICO
                                       September 12, 1997
ALTON BRUCE WINGATE

          FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                        Robert W. Curran, Judge


      In this slip-and-fall case, a jury awarded the plaintiff,

Alton Bruce Wingate, a verdict for $300,000 against the

defendants, Morrison-Knudsen Company, Inc. and Eugene W. Kelsey &

Son, Inc., a joint venture operating under the name of Kelsey &

Associates.    The trial court entered judgment on the verdict, and

we awarded the defendants an appeal.
      The plaintiff was injured when he slipped and fell on an

outside stairway at Building 1949 in a housing complex at the

Naval Weapons Station in Yorktown.    Building 1949 was one of 36

two-story buildings containing a total of 232 housing units for

which the defendants were awarded a construction contract by the

United States Navy Department in 1981.    Pursuant to the contract,

the defendants acted as architect and designer as well as general

contractor for the project, including the exterior stairways.

      Building 1949 was the first structure erected, and it was

used as a prototype for the remaining thirty-five buildings.     The

second-floor units in each building were reached by an exterior

stairway in the shape of a "Y," with the leg of the "Y" joined to
      1
      Justice Stephenson participated in the hearing and decision
of this case prior to the effective date of his retirement on
July 1, 1997.
the arms by a landing located approximately one-third of the way

up the stairs.

     The original shop drawings for the prototype stairway

specified a "steel trowel finish" for the precast concrete treads

and landing, meaning that the finish would be "relatively

smooth," and the treads and the landing on the stairway in

Building 1949 were finished in this manner.      However, after

Building 1949 was completed, "the Navy . . . decided [it] wanted

broom finish instead of steel-trowel finish" on the stair treads,

and a change order was issued directing the replacement of

"[s]tair treads at Bldg. 1949."      A note on the change order

stated that the "[o]riginal stair treads were smooth [and should]

have been rough texture."      The change order made no mention of

the landing on the stairway in Building 1949.
     The stair treads in Building 1949 were replaced with treads

having a "broom finish," meaning that "you still trowel [the

concrete], and then you run a broom over it to get a slight
            2
texture."       C.H. Morgan, the framing subcontractor who originally

erected the prototype stairway, was employed to do the

replacement work.      He asked a representative of the defendants

why the landing was not being replaced and was told that the

surface of the landing would be roughened by application of an

epoxy material.      However, the finish on the landing was still

smooth when he examined it some time later.

     The plaintiff was employed by a private commercial firm to
     2
      A broom finish was used on the treads and landings on the
stairways of the remaining 35 buildings in the housing complex.
perform maintenance work at the housing complex after it was

completed.   On August 14, 1984, he had been working in a second-

floor unit of Building 1949 when it began to rain.   Walking

briskly down the stairway to raise the windows on his van, he

slipped on the wet landing and fell to the bottom of the stairs,

suffering the injuries for which he sought damages in the action

filed below.   He examined the landing the day after he fell and

found it was composed of "real smooth concrete," unlike the

"rough, broom-finished concrete" on the steps.
     On appeal, the defendants argue that actionable negligence

requires proof of a legal duty to exercise ordinary care for the

safety of another person, a breach of that duty, and an injury

proximately resulting from the breach.   The defendants say that

the plaintiff was required to establish by the use of expert

testimony what duty they owed him as designers and general

contractors, yet the plaintiff failed to produce such expert

testimony.   Furthermore, the defendants submit, there was no

showing that they breached any duty they owed the plaintiff; he

produced no evidence to show that the trowel finish was unfit or

unsafe for use on an exterior landing or that the trowel finish

constituted a defect in the premises.    Hence, the defendants

conclude, their motions to strike and for summary judgment, made

below, should have been granted.

     The plaintiff responds that expert testimony was not

required to establish the defendants' duty because this is a case

"in which the facts and circumstances are within the common

understanding and experience of the average lay juror."   The
plaintiff maintains that "[f]or a proper statement of the duty

owed to a person injured by a defective condition created by a

contractor, the court must look to tort law and apply the

objective standard of the reasonably prudent man."

     Here, the plaintiff says, there was "ample evidence from

which the jury could conclude that [the defendants] failed to use

ordinary care in creating and failing to repair the condition

that caused [the plaintiff's] injury."   The evidence showed, the

plaintiff submits, that the defendants failed to use ordinary

care "in (1) designing a stairway composed of a smooth concrete

surface exposed to the weather, (2) replacing all but one surface

when the owner rejected it as too smooth, and (3) failing to

perform the repair they arranged for (application of epoxy)."

Hence, the plaintiff concludes, the trial court did not err in

refusing to grant the defendants' motions to strike and for

summary judgment.
     For purposes of this discussion, we will assume, without

deciding, that the plaintiff is correct in his assertion that

expert testimony was not required to prove what duty the

defendants owed him, and we will agree with the plaintiff that

the defendants owed him the duty of ordinary care.   Yet, there

remained upon the plaintiff the burden of showing a breach of

that duty by producing evidence of a non-expert nature

establishing that the smooth finish on the landing in the

stairway of Building 1949 constituted what the plaintiff calls "a

hazardous condition . . .   created by [the defendants] which they

failed to repair."
     We are of opinion that the plaintiff failed to carry his

burden.   Indeed, at best, the plaintiff's evidence may be

described as sketchy.   He cites the testimony of the defendants'

quality control officer that there is no custom in the building

industry concerning broom-finished versus trowel-finished

concrete.   The plaintiff also cites the testimony of the

defendants' project manager to the effect that he was unfamiliar

with building code requirements.   The plaintiff then argues that

if the defendants could have shown that they had complied with

applicable industry standards or building codes, "they would have

done so."
     The difficulty with this argument is that the burden was not

upon the defendants to show that they complied with industry

standards or building codes, if any were applicable.   Rather, the

burden was upon the plaintiff to show that the defendants

deviated from the standard of ordinary care, either by failing to

observe applicable trade customs and building code provisions or

by some other defalcation.

     The plaintiff also cites an "acknowledgement" by the

defendants' quality control officer that broom-finished stair

treads "give you more traction" than smooth-finished treads,

especially in damp "climates such as you have in Yorktown," and

that if he were building the stairs and landings, he would prefer

a "real light broom finish."   Further, the plaintiff cites a

statement by the defendants' project manager to the effect that

he did not know why the Navy requested the change to broom-

finished treads "other than that they wanted the stair treads to
be rougher."

     However, all that this evidence establishes is the obvious:

broom-finished concrete provides a rougher surface with better

traction than smooth-finished concrete.   It does not prove that a

smooth finish is inherently unsafe or unfit for use on an

exterior landing.   Simply because one method of finishing

concrete may be better or preferable to another does not mean

that the other is necessarily unacceptable or that its use would

constitute negligence under circumstances similar to those

present here.
     Next, the plaintiff cites the testimony of C.H. Morgan, the

framing subcontractor who originally erected the prototype

stairway and later replaced the treads pursuant to the change

order.   Morgan stated that in his forty years of building

experience, he had never seen smooth-finished concrete used in a

public area.

     But Morgan's "business, . . . on this particular project,

was to do carpentry and framing and trim work."   He had never

participated in the design of concrete forms or concrete

structures, had no expertise in concrete, and was only generally

familiar with what concrete finishes are used on common walkways

and areas.   While he found the use of smooth-finished concrete in

a public area unusual, he did not question its use on the

prototype stairway.   And the fact that one person may never have

seen smooth-finished concrete used in a public area does not make

its use in this particular case a breach of the duty to use

ordinary care.
     Finally, the plaintiff puts great emphasis upon the change

order requiring replacement of the treads on the prototype

stairway because the "[o]riginal stair treads were smooth [and

should] have been rough texture."   The plaintiff says that the

defendants prepared the plans and specifications for the

prototype stairway, which allowed the use of smooth-finished

concrete, that "[t]he Navy rejected the plans and ordered them

changed," and that the defendants complied with respect to all

the buildings in the housing project except Building 1949.    "In

other words," the plaintiff states, "these were [the defendants']

own plans, [they] were not approved but rejected and not followed

as modified."
     However, there is nothing in the record to justify the view

that the Navy ever "rejected" the use of smooth-finished concrete

on the treads and landing in the stairway of Building 1949.

Rather, the evidence shows that the original plans and

specifications were approved and that the stairway was erected

with smooth-finished concrete in accordance with those plans and

specifications.   Only later did the Navy indicate that it

"wanted" the smooth treads replaced by treads with a rough

finish.   The change order was then issued and the treads were

replaced.   This goes to prove nothing more than that the Navy

changed its mind about the type of finish it wanted on the stair

treads in Building 1949.

     Furthermore, the change order made no mention of the landing

in question.    Therefore, the order cannot be construed, as the

plaintiff would have us construe it, as imposing upon the
defendants an obligation to "follow" the order by replacing not

only the stair treads but also the landing with broom-finished

concrete.

     We are not unmindful of the maxim that, "on appeal, a

litigant who is fortified by a jury's verdict and a trial court's

judgment thereon 'occupies the most favored position known to the

law.'"   Virginia & Maryland R.R. v. White, 228 Va. 140, 145, 319

S.E.2d 755, 758 (1984) (quoting Pugsley v. Privette, 220 Va. 892,

901, 263 S.E.2d 69, 76 (1980)).   But it is the duty of this Court

to set aside a jury verdict, even though approved by the trial

court, when it is not supported by evidence and could only have

been reached through speculation and conjecture.   Wagman v.

Boccheciampe, 206 Va. 412, 418, 143 S.E.2d 907, 911 (1965).

     Here, the plaintiff failed to establish that the use by the

defendants of smooth-finished concrete on the landing in question

constituted a defect or a hazardous, unsafe, or unfit condition

which the defendants were bound to repair.   Therefore, the jury's

verdict finding that the defendants breached their duty of

ordinary care is not supported by evidence and could only have

been reached through speculation and conjecture.   Accordingly, we

will reverse the judgment of the trial court, set the jury

verdict aside, and enter final judgment here in favor of the

defendants.

                                      Reversed and final judgment.
