Austin v. Shoney's, Inc.

486 S.E.2d 285, 254 Va. 134, 1997 Va. LEXIS 57
CourtSupreme Court of Virginia
DecidedJune 6, 1997
DocketRecord 961236
StatusPublished
Cited by53 cases

This text of 486 S.E.2d 285 (Austin v. Shoney's, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Austin v. Shoney's, Inc., 486 S.E.2d 285, 254 Va. 134, 1997 Va. LEXIS 57 (Va. 1997).

Opinions

JUSTICE KOONTZ

delivered the opinion of the Court.

In this appeal we consider whether the trial court properly sustained the defendant’s renewed motion to strike the plaintiff’s evidence in a slip and fall case after the jury was unable to return a verdict. Under well settled principles, we view the evidence and the inferences reasonably raised thereby in the light most favorable to the plaintiff, whose evidence was stricken. Meador v. Lawson, 214 Va. 759, 761, 204 S.E.2d 285, 287 (1974).

Jane Pauline Austin, 70 years old, was dining with her family on the morning of October 16, 1993 at a restaurant in Norfolk owned by Shoney’s, Inc. Austin wore a prosthetic limb on her left leg as a result of a below-the-knee amputation and used a cane with a four-pronged foot for support when walking. After completing the meal, Austin and the others walked down an aisle between two rows of booths toward the front of the restaurant to exit.

As Austin proceeded down the aisle, her cane slid forward on the floor and then went into the air, causing her to lose her balance and to fall. As a result, she suffered broken bones in her left shoulder and left leg. She was treated for these injuries at a local hospital and was later transferred to a hospital nearer her home in Pittsburgh, Penn[136]*136sylvania. Austin remained hospitalized there and died five months later from causes not directly related to her fall.

In September 1994, Doris Austin, Austin’s daughter-in-law and personal representative of her estate, filed the present action alleging that Austin’s fall was directly and proximately caused by Shoney’s negligent failure to keep the floor of its dining area in a dry and safe condition. After extensive pre-trial proceedings, a jury trial was commenced in the trial court on November 15, 1995. Testimony concerning various contested issues was received over a period of four days of trial. However, we will recite only that evidence which is relevant to the dispositive issues of this appeal.

The floor of the restaurant’s dining area consists of red quarry tile laid in a brickwork pattern. Shoney’s employed two night porters to clean the floors of its dining area and other areas of the restaurant each night. Larry Horton was the regular weekday night porter; James Crawford was the weekend night porter. Crawford testified that he regularly used one of two commercial cleaning products to clean the restaurant’s floors: Quarry Tile Cleaner WP-329 and Green Liquid Detergent WP-522, a dishwashing detergent. Horton testified that he always used the dishwashing detergent.

Both Crawford and Horton conceded that they used levels of concentration of detergent to water considerably lower than was recommended by the manufacturer for cleaning a quarry tile floor. In addition to regular cleaning with diluted detergent, the instructions for cleaning quarry tile floors with the quarry tile cleaner called for weekly “shock treatments” with full strength cleaner. This was not done. Plaintiff’s expert witness testified that the concentrations of the two cleaning products used by the night porters would not effectively remove grease from the floors or emulsify grease picked up by the mops.

Horton testified that it was his practice to clean the kitchen floor first and then the dining area floor, rinsing his mop and changing the water in his mop bucket six to eight times a night. Crawford testified that it was his practice to clean the dining area floor first and then to mop the kitchen floor. Each further testified that they used the same mop to clean the dining area floor and the kitchen floor. The same mop was used by both night porters over several nights until it required replacement.

The night before the accident, Crawford was the night porter. He testified that, after completing his duties, he inspected the floor to confirm that there were “no wet spots or anything like that.” The [137]*137restaurant manager testified that when she inspected the dining area floor on the morning of the accident, “[tjhere were no problems. The [floor] was clean.”

William Meadows, another restaurant patron on the morning of the accident, testified that 20 to 30 minutes prior to the accident he slipped twice in the same area where Austin fell. Meadows examined the floor and found a “slippery residue on the floor. ... It wasn’t [any] type of water, it was more [a] petroleum residue.” Meadows further testified that just before Austin fell, he saw her cane “jet[] from her . . . [l]ike it had hit something slick.” After Austin fell, Meadows reexamined the floor where she had fallen and he had slipped. He estimated that an area about four feet wide and four to six feet long was slick with a petroleum residue. Doris Austin testified that she examined the floor after Austin fell and found a “greasy film, like a slick greasy film-like substance” on the floor.

At the conclusion of the plaintiff’s case-in-chief, Shoney’s made a motion to strike the evidence on the ground that the evidence did not establish that there was an unsafe condition which was the cause of the accident, or that if such a condition existed, it was created by Shoney’s or known by Shoney’s to exist. Although stating that “the evidence of constructive notice in this case is awfully thin,” the trial court overruled the motion.

Shoney’s then introduced the testimony of various employees of the restaurant that they did not observe any grease on the floor the morning of the accident or otherwise have reason to suspect that the floor was slippery. Shoney’s also called a representative of the manufacturer of the products used to clean the floor as an expert witness. The representative testified that the two products in question were appropriate for cleaning and removing grease from floors, but that the dishwashing liquid “would not be our first recommendation” for cleaning a quarry tile floor. Another expert called by Shoney’s testified that the cleaning methods used by the night porters were “well within any set of [industry] guidelines,” but conceded on cross-examination that the procedures used were “not exactly what I would have recommended.”

At the conclusion of all the evidence, Shoney’s renewed its motion to strike. The trial court took the matter under advisement and permitted the case to go to the jury. After several hours the jury informed the trial court that it could not reach a verdict. The trial court directed the jury to continue to deliberate in an effort to reach a verdict. After several more hours of deliberation, the jury was unable [138]*138to reach a verdict and was discharged by the trial court. Shoney’s again renewed its motion to strike. Following submission of briefs by the parties, the trial court granted the motion and entered summary judgment for Shoney’s. Rule 1:11. We awarded an appeal to the plaintiff.

The standard under which a trial court should review the evidence adduced at trial before granting a motion to strike the case at the end of a plaintiff’s evidence is well settled under prior decisions of this Court. That standard requires the trial court to accept as true all the evidence favorable to the plaintiff as well as any reasonable inference a jury might draw therefrom which would sustain the plaintiff’s cause of action. The trial court is not to judge the weight and credibility of the evidence, and may not reject any inference from the evidence favorable to the plaintiff unless it would defy logic and common sense.

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Cite This Page — Counsel Stack

Bluebook (online)
486 S.E.2d 285, 254 Va. 134, 1997 Va. LEXIS 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-shoneys-inc-va-1997.