COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, AtLee and Callins UNPUBLISHED
Argued at Richmond, Virginia
JAMES BURGESS MEMORANDUM OPINION* BY v. Record No. 0877-23-2 JUDGE RICHARD Y. ATLEE, JR. SEPTEMBER 24, 2024 SYP HOSPITALITY, LLC
FROM THE CIRCUIT COURT OF HENRICO COUNTY Richard S. Wallerstein, Jr., Judge
Darrell J. Getman (Jonathan E. Halperin; Brody H. Reid; Halperin Law Center; Reid Goodwin, PLC, on briefs), for appellant.
John P. O’Herron (Peter S. Askin; ThompsonMcMullan, P.C., on brief), for appellee.
This appeal arises from a premises liability claim asserted by James Burgess against SYP
Hospitality, LLC. After a two-day trial, a jury found in favor of SYP. On appeal, Burgess argues
that the circuit court erred by granting a jury instruction that was incorrect, issuing contradictory
jury instructions, sending the issue of contributory negligence to the jury, and allowing SYP to
argue that his preexisting medical conditions contributed to his fall and resulting injuries. For the
following reasons, we disagree and affirm the decision of the circuit court.1
I. BACKGROUND
On September 10, 2018, Burgess checked into a hotel room owned by SYP, intending to
shower before dinner. The hotel bathroom included a bathtub “a little less than two feet” tall, which
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 SYP asks this Court to dismiss the appeal because the record on appeal does not contain a transcript of a video deposition played for the jury. Because we find that the transcript was not necessary to decide the appeal, we deny that motion. had a “gritty” surface that felt like “grains of sand.” The bathtub did not include a bathmat, grab
bar, or nonskid strips.
Burgess turned the shower faucet on and let in run for 10 to 15 seconds. While standing
outside the rear of the bathtub, Burgess placed his left foot inside the bathtub and began to bring his
right foot into the bathtub. Before he was able to place his right foot down, Burgess started to slip.
Burgess put his right foot down inside the bathtub to “try to catch [him]self,” but he ultimately
slipped “less than a second” later.2
Burgess sustained a cut to his right foot, which bled “[p]rofusely.” He stopped “the vast
majority of the bleeding” by applying pressure to the wound and went to an urgent care center the
next day. The doctor cleaned his wound, prescribed two antibiotics, provided him with a walking
boot, and instructed him to “treat [his] foot very gingerly” and to follow up with his podiatrist.
Burgess followed the doctor’s instructions.
On October 23, 2018, while his wound was still healing, Burgess discovered that his right
foot was “puffy” and “warm to the touch.” By the following morning, Burgess’s right foot had
turned red, and his little toe had begun to turn black and purple. Burgess sought treatment, and
doctors amputated the toes and two-thirds of his right foot because of an infection.
Burgess filed a personal injury complaint against SYP, which, as amended, alleged that SYP
had negligently failed to remove a “thin and invisible layer of soap” from the bathtub. Burgess also
alleged that SYP had negligently failed to install a grab bar or anti-slip bathmat in the bathtub. In its
answer, SYP asserted that Burgess had been contributorily negligent in causing his fall. In pursuit
of that theory, SYP designated experts to testify about Burgess’s preexisting conditions.
2 Burgess testified that he placed one of his hands on the shower rod before entering the bathtub but did not testify as to when he removed his hand. His testimony indicates that he was not holding the shower rod when he fell. -2- Burgess suffers from diabetes, neuropathy, and Charcot arthropathy in his left foot. Patients
with neuropathy “are still able to feel” initially but become “very numb and not able to feel” in their
extremities, like their feet, over time. Charcot arthropathy begins with a loss of sensation and leads
to collapsed bones in the foot as it progresses, causing instability and affecting balance. Before the
incident, Burgess’s podiatrist had prescribed him an orthotic “CROW boot [for] his left foot,”
instructed him to wear it “[a]s much as[] possible,” and prescribed “an accommodative orthotic shoe
device” for his right foot.3
SYP’s experts intended to testify that Burgess’s neuropathy and Charcot arthropathy
“contributed to the [f]all due to lack of sensation causing unsteadiness and [Burgess’s] inability to
feel the surface of the bathtub.” The lack of feeling in his feet “put him at risk for frequent falls and
unsteadiness.” Additionally, SYP’s experts were also designated to testify that Burgess’s diabetes,
allegedly uncontrolled, put him at an increased risk of infection.
Before trial, Burgess moved the circuit court to exclude expert testimony that his diabetes or
other preexisting medical conditions caused his injuries. He also moved the circuit court to bar SYP
from arguing to the jury that he had been contributorily negligent in causing his fall. The circuit
court denied both motions and ruled that SYP could provide “testimony concerning potential
liability and damages issues relating to [Burgess’s] pre-existing condition of diabetes.”
At trial, Burgess testified about his fall and injuries. He described slipping on a foreign
substance on the surface of the bathtub that was “very slick” and “felt like a sheet of ice with baby
oil on top of it,” which he did not discover until he began to fall. He denied having an opportunity
to put his right foot down outside the bathtub before he fell.
3 The record does not disclose what a CROW boot is, but testimony at trial indicated that the wearer retains use of the foot and ankle. -3- Burgess acknowledged that the arch in his left foot had “collapsed” before the incident,
making the foot “flatter,” but denied having a “balance problem” beforehand. Similarly, he
admitted that his neuropathy “reduce[d] the sensation in [his] foot” but testified that it did “not make
it absent by any means.” Burgess also testified that diabetics generally “tend to heal slower with
wounds.”4
One of the hotel’s housekeepers testified in Burgess’s case-in-chief that he cleaned the
hotel’s bathtubs by washing them with clean water and wiping them with a rag. The housekeeper
explained that he would then spray the bathtubs with a “pink liquid” before further cleaning them
with another rag. The housekeeper admitted that a hotel guest would receive their room in whatever
condition it was in after he finished cleaning.
Dr. Michael Bowen, a podiatrist, testified as an expert witness for SYP. He explained that
Burgess’s diabetes became uncontrolled5 and, as a result, he developed neuropathy and Charcot
arthropathy. He explained that patients with neuropathy lose the ability “to tell the difference
between . . . something that’s smooth versus something that’s rough” and “are at 15 times greater
risk . . . for falls.” He also testified that Burgess had a “very high risk” of developing a severe
infection in his right foot due to his preexisting conditions, regardless of his fall. On cross-
examination, Dr. Bowen acknowledged that he had never personally examined Burgess, and he did
not know how unstable Burgess’s conditions made him.
After the close of all the evidence, Burgess moved to strike SYP’s contributory negligence
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COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, AtLee and Callins UNPUBLISHED
Argued at Richmond, Virginia
JAMES BURGESS MEMORANDUM OPINION* BY v. Record No. 0877-23-2 JUDGE RICHARD Y. ATLEE, JR. SEPTEMBER 24, 2024 SYP HOSPITALITY, LLC
FROM THE CIRCUIT COURT OF HENRICO COUNTY Richard S. Wallerstein, Jr., Judge
Darrell J. Getman (Jonathan E. Halperin; Brody H. Reid; Halperin Law Center; Reid Goodwin, PLC, on briefs), for appellant.
John P. O’Herron (Peter S. Askin; ThompsonMcMullan, P.C., on brief), for appellee.
This appeal arises from a premises liability claim asserted by James Burgess against SYP
Hospitality, LLC. After a two-day trial, a jury found in favor of SYP. On appeal, Burgess argues
that the circuit court erred by granting a jury instruction that was incorrect, issuing contradictory
jury instructions, sending the issue of contributory negligence to the jury, and allowing SYP to
argue that his preexisting medical conditions contributed to his fall and resulting injuries. For the
following reasons, we disagree and affirm the decision of the circuit court.1
I. BACKGROUND
On September 10, 2018, Burgess checked into a hotel room owned by SYP, intending to
shower before dinner. The hotel bathroom included a bathtub “a little less than two feet” tall, which
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 SYP asks this Court to dismiss the appeal because the record on appeal does not contain a transcript of a video deposition played for the jury. Because we find that the transcript was not necessary to decide the appeal, we deny that motion. had a “gritty” surface that felt like “grains of sand.” The bathtub did not include a bathmat, grab
bar, or nonskid strips.
Burgess turned the shower faucet on and let in run for 10 to 15 seconds. While standing
outside the rear of the bathtub, Burgess placed his left foot inside the bathtub and began to bring his
right foot into the bathtub. Before he was able to place his right foot down, Burgess started to slip.
Burgess put his right foot down inside the bathtub to “try to catch [him]self,” but he ultimately
slipped “less than a second” later.2
Burgess sustained a cut to his right foot, which bled “[p]rofusely.” He stopped “the vast
majority of the bleeding” by applying pressure to the wound and went to an urgent care center the
next day. The doctor cleaned his wound, prescribed two antibiotics, provided him with a walking
boot, and instructed him to “treat [his] foot very gingerly” and to follow up with his podiatrist.
Burgess followed the doctor’s instructions.
On October 23, 2018, while his wound was still healing, Burgess discovered that his right
foot was “puffy” and “warm to the touch.” By the following morning, Burgess’s right foot had
turned red, and his little toe had begun to turn black and purple. Burgess sought treatment, and
doctors amputated the toes and two-thirds of his right foot because of an infection.
Burgess filed a personal injury complaint against SYP, which, as amended, alleged that SYP
had negligently failed to remove a “thin and invisible layer of soap” from the bathtub. Burgess also
alleged that SYP had negligently failed to install a grab bar or anti-slip bathmat in the bathtub. In its
answer, SYP asserted that Burgess had been contributorily negligent in causing his fall. In pursuit
of that theory, SYP designated experts to testify about Burgess’s preexisting conditions.
2 Burgess testified that he placed one of his hands on the shower rod before entering the bathtub but did not testify as to when he removed his hand. His testimony indicates that he was not holding the shower rod when he fell. -2- Burgess suffers from diabetes, neuropathy, and Charcot arthropathy in his left foot. Patients
with neuropathy “are still able to feel” initially but become “very numb and not able to feel” in their
extremities, like their feet, over time. Charcot arthropathy begins with a loss of sensation and leads
to collapsed bones in the foot as it progresses, causing instability and affecting balance. Before the
incident, Burgess’s podiatrist had prescribed him an orthotic “CROW boot [for] his left foot,”
instructed him to wear it “[a]s much as[] possible,” and prescribed “an accommodative orthotic shoe
device” for his right foot.3
SYP’s experts intended to testify that Burgess’s neuropathy and Charcot arthropathy
“contributed to the [f]all due to lack of sensation causing unsteadiness and [Burgess’s] inability to
feel the surface of the bathtub.” The lack of feeling in his feet “put him at risk for frequent falls and
unsteadiness.” Additionally, SYP’s experts were also designated to testify that Burgess’s diabetes,
allegedly uncontrolled, put him at an increased risk of infection.
Before trial, Burgess moved the circuit court to exclude expert testimony that his diabetes or
other preexisting medical conditions caused his injuries. He also moved the circuit court to bar SYP
from arguing to the jury that he had been contributorily negligent in causing his fall. The circuit
court denied both motions and ruled that SYP could provide “testimony concerning potential
liability and damages issues relating to [Burgess’s] pre-existing condition of diabetes.”
At trial, Burgess testified about his fall and injuries. He described slipping on a foreign
substance on the surface of the bathtub that was “very slick” and “felt like a sheet of ice with baby
oil on top of it,” which he did not discover until he began to fall. He denied having an opportunity
to put his right foot down outside the bathtub before he fell.
3 The record does not disclose what a CROW boot is, but testimony at trial indicated that the wearer retains use of the foot and ankle. -3- Burgess acknowledged that the arch in his left foot had “collapsed” before the incident,
making the foot “flatter,” but denied having a “balance problem” beforehand. Similarly, he
admitted that his neuropathy “reduce[d] the sensation in [his] foot” but testified that it did “not make
it absent by any means.” Burgess also testified that diabetics generally “tend to heal slower with
wounds.”4
One of the hotel’s housekeepers testified in Burgess’s case-in-chief that he cleaned the
hotel’s bathtubs by washing them with clean water and wiping them with a rag. The housekeeper
explained that he would then spray the bathtubs with a “pink liquid” before further cleaning them
with another rag. The housekeeper admitted that a hotel guest would receive their room in whatever
condition it was in after he finished cleaning.
Dr. Michael Bowen, a podiatrist, testified as an expert witness for SYP. He explained that
Burgess’s diabetes became uncontrolled5 and, as a result, he developed neuropathy and Charcot
arthropathy. He explained that patients with neuropathy lose the ability “to tell the difference
between . . . something that’s smooth versus something that’s rough” and “are at 15 times greater
risk . . . for falls.” He also testified that Burgess had a “very high risk” of developing a severe
infection in his right foot due to his preexisting conditions, regardless of his fall. On cross-
examination, Dr. Bowen acknowledged that he had never personally examined Burgess, and he did
not know how unstable Burgess’s conditions made him.
After the close of all the evidence, Burgess moved to strike SYP’s contributory negligence
defense because it had failed to introduce evidence of what he “could have done . . . differently that
4 Burgess also testified that he had an infection in his right foot before his fall. It is not clear from his testimony when his prior infection resolved. Each party, however, introduced expert testimony indicating that Burgess previously sustained a cut to his right foot between 2014 and 2015. 5 The parties disputed whether Burgess’s diabetes was uncontrolled at the time of the incident. -4- would not have resulted in injury.” Burgess further argued that the jury would have had to
speculate to find that he had been contributorily negligent and objected to any proposed jury
instructions concerning that defense. The circuit court denied Burgess’s motion to strike and
overruled his objections to the contributory negligence jury instructions.
Burgess also objected to Jury Instruction 16, which provided in relevant part that
“[n]egligence is the failure to use ordinary care.” Burgess argued that SYP, as the owner of a hotel,
owed its guests “an absolute duty,” rather than a duty of ordinary care, with respect to dangers that
SYP “knew or should have known of . . . that might easily have been removed, remediated, or
cured.” The circuit court overruled Burgess’s objection. The circuit court also issued Jury
Instruction 15, which provided in relevant part that “[a]n innkeeper has an absolute duty of care to
protect its guests when it knows or should know of a danger to them that might be easily removed.”
In closing argument, SYP claimed that Burgess’s preexisting medical conditions caused his
wound to take “longer to recover” and that Dr. Bowen’s testimony showed that Burgess “was at
high risk.”6 SYP argued that Burgess had been contributorily negligent because his preexisting
medical conditions affected his balance yet he did not request a handicap room or a bathmat. SYP
also argued that Burgess had been contributorily negligent because he failed to put his right foot
down outside the bathtub after he realized he was slipping. In rebuttal, Burgess responded that he
did “what he [could] to try to get his [right] foot down” and that his actions were “not
unreasonable.”
Following their deliberations, the jury returned a verdict for SYP. The jury verdict form did
not specify whether the jury found that Burgess had been contributorily negligent in causing his fall
and injuries or whether the jury found that Burgess failed to preponderate his allegation of
6 SYP’s closing argument did not specify what Burgess “was at high risk” of. -5- negligence against SYP. Burgess then moved to set aside the jury’s verdict, which the circuit court
denied. Burgess appeals.
II. ANALYSIS
“[A]ll trial court rulings come to an appellate court with a presumption of correctness.”
Sobol v. Sobol, 74 Va. App. 252, 272 (2022) (alteration in original) (quoting Wynnycky v. Kozel, 71
Va. App. 177, 192 (2019)). “[T]he party seeking reversal bears the burden to demonstrate error on
the part of the trial court.” Id. at 272-73 (quoting Barker v. Barker, 27 Va. App. 519, 535 (1998)).
A. Jury Instructions 15 and 16
On appeal, Burgess argues that the circuit court erred by submitting Jury Instruction 16 to
the jury, as he contends it is an incorrect statement of the law. He also argues that submitting Jury
Instruction 15, which was correct, alongside Jury Instruction 16, which was incorrect, “served to
mislead and confuse the jury.”
“The purpose of jury instructions is to inform the jury fully and fairly about the law
applicable to the particular facts of a case.” Hawthorne v. VanMarter, 279 Va. 566, 586 (2010).
“[N]o instruction should be given . . . ‘which would be confusing or misleading to the jury.’” Bista
v. Commonwealth, 76 Va. App. 184, 227 (2022) (second alteration in original) (quoting Graves v.
Commonwealth, 65 Va. App. 702, 708 (2016)). “A reviewing court’s responsibility in reviewing
jury instructions is ‘to see that the law has been clearly stated and that the instructions cover all
issues which the evidence fairly raises.’” Conley v. Commonwealth, 74 Va. App. 658, 674-75
(2022) (quoting Fahringer v. Commonwealth, 70 Va. App. 208, 211 (2019)). “We review a trial
court’s decisions in giving and denying requested jury instructions for abuse of discretion.” Id. at
675.
Burgess contends that the circuit court erred by giving Jury Instruction 16 because it
incorrectly stated the duty of care owed by SYP. Relying on Taboada v. Daly Seven, Inc., 271 Va.
-6- 313 (2006), Burgess asserts that SYP owed him an “elevated” duty of care “akin to that of a
common carrier and passenger,” rather than a duty of ordinary care. He also asserts that Jury
Instructions 15 and 16 were inconsistent. We disagree.
An innkeeper is responsible for its premises, and “guests may generally assume that they are
safe.” Kirby v. Moehlman, 182 Va. 876, 884 (1944) (quoting Baker v. Dallas Hotel Co., 73 F.2d
825, 827 (5th Cir. 1934)). An innkeeper’s “qualified duty of ordinary care may become an absolute
duty and does become an absolute duty when a proprietor knew or should have known of a danger
that might have been easily removed.” Id. at 885 (emphasis added). Stated otherwise, an innkeeper
has a “qualified duty” of ordinary care with respect to the condition of its premises, which becomes
an absolute duty if the innkeeper “knew or should have known of” a hazardous condition that it
could easily have eliminated. Id.
In Taboada, the Supreme Court addressed what duty of care an innkeeper owes to a guest
concerning “criminal conduct of a third party.” Taboada, 271 Va. at 324 (emphasis added). By
contrast, this appeal does not concern SYP’s duty to protect its guests from a third party’s criminal
conduct. Instead, it concerns a purported dangerous condition on the hotel premises—the foreign
substance on the surface of the bathtub. SYP owed Burgess a qualified duty of ordinary care with
respect to the safety of its premises. Kirby, 182 Va. at 884-85. That qualified duty became
“absolute” if SYP knew or should have known of the presence of the foreign substance, and it
needed to remediate the condition if it could have “easily” done so. Id. at 885. Jury Instructions 15
and 16 correctly reflect the law, and, accordingly, the circuit court did not err by submitting the
instructions to the jury.
-7- B. Contributory Negligence
Burgess next argues that the circuit court erred by submitting the question of contributory
negligence to the jury because SYP failed to introduce evidence that he “could have taken
reasonable action to avoid his injury.”
“Contributory negligence is an affirmative defense that must be proved according to an
objective standard whether the plaintiff failed to act as a reasonable person would have acted for
his own safety under the circumstances. The essential concept of contributory negligence is
carelessness.” RGR, LLC v. Settle, 288 Va. 260, 283 (2014) (quoting Jenkins v. Pyles, 269 Va.
383, 388 (2005)). “[J]ust as a plaintiff is required to establish a prima facie case of negligence, a
defendant who relies upon the defense of contributory negligence must establish a prima facie
case of the plaintiff’s contributory negligence.” Id. at 284 (alternation in original) (quoting
Sawyer v. Comerci, 264 Va. 68, 75 (2002)). To establish a prima facie case of contributory
negligence, “a defendant must show that the plaintiff was negligent and that such negligence was
a proximate cause of the accident.” Id.
Generally, whether a plaintiff is guilty of contributory negligence is a question of fact “to
be decided by the factfinder unless ‘reasonable minds could not differ about what conclusion
could be drawn from the evidence.’” Id. (quoting Jenkins, 269 Va. at 389). Before a
contributory negligence instruction may be submitted to a jury, however, a defendant asserting
contributory negligence must adduce “more than a scintilla of evidence . . . to establish each of
the elements of contributory negligence.” Sawyer, 264 Va. at 75. Burgess contends that SYP
produced no evidence to show that he could have taken reasonable action to avoid injury. We
disagree.
Burgess suffers from diabetes, neuropathy, and Charcot arthropathy in his left foot.
There is conflicting evidence about whether his diabetes was controlled at the time of the
-8- incident. Both neuropathy and Charcot arthropathy cause reduced sensation in limbs. While
neuropathy can start with tingling, it can progress to complete numbness. Likewise, Charcot
arthropathy begins with a loss of sensation and leads to collapsed bones in the foot. Burgess
acknowledged that his conditions caused reduced sensation in his feet and a collapsed arch in his
left foot. His condition had progressed to the point where he was prescribed a CROW boot for
his left foot. SYP’s experts testified that these conditions can affect how an individual feels with
their feet, including losing the ability to tell the difference between smooth and rough surfaces,
which leads to a significantly greater risk of falls. Burgess testified that he stepped into the
bathtub with his left foot. Thus, the evidence established that Burgess stepped into the bathtub,
leading with, and planting, his left foot, a foot in which Burgess suffered from reduced sensation
and a collapsed arch.7 The amount of sensation Burgess had at the time of the incident and what
role it played is a jury question. A reasonable factfinder could find that Burgess was negligent in
leading with his left foot and that this caused the fall. Thus, there was sufficient evidence to send
the issue to the jury, and the circuit court did not err.
C. Burgess’s Comorbidities and Increased Risk
Burgess next argues that the circuit court erred by permitting SYP to argue that his
comorbidities, including his diabetes, “significantly increased [his] risk of infection and subsequent
need for a partial amputation of his right foot.”
But Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a
basis for reversal unless an objection was stated with reasonable certainty at the time of the
ruling, except for good cause shown or to enable this Court to attain the ends of justice.” The
purpose behind this rule “is to require that objections be promptly brought to the attention of the
7 Inasmuch as Burgess did not request a handicap accessible room, the bath/shower enclosure did not have grab bars or a non-slip bathmat. While these facts add to the quantum of evidence regarding contributory negligence, they would not, standing alone, be sufficient. -9- trial court with sufficient specificity that the alleged error can be dealt with and timely addressed
and corrected when necessary.” Redman v. Commonwealth, 25 Va. App. 215, 220 (1997)
(quoting Brown v. Commonwealth, 8 Va. App. 126, 131 (1989)).
Burgess did not object during SYP’s argument. Even so, Burgess argues that he
preserved his objection through his motion in limine and oral argument on the motion and that he
was not required to renew his objection during the trial. He relies on Code § 8.01-384(A), which
provides,
No party, after having made an objection or motion known to the court, shall be required to (i) make such objection or motion again in order to preserve his right to appeal, challenge, or move for reconsideration of, a ruling, order, or action of the court or (ii) move for reconsideration in order to preserve his right to appeal a ruling, order, or action of the court, even if such ruling, order, or action is without prejudice to a motion to reconsider.
But Burgess’s arguments below sought to exclude any expert testimony that his “diabetes
or other pre-existing medical conditions caused his injuries.” On appeal, he assigns error to the
circuit court’s decision to permit SYP’s allegedly improper argument on that same issue.
Though the underlying rationale for his arguments may be the same, whether expert testimony is
admissible is a different issue than whether defense counsel made improper argument. While
Code § 8.01-384(A) does not require Burgess to repeat his objections to the admission of the
expert testimony, it does not excuse him from properly preserving a different legal objection.
Accordingly, we find that Burgess’s argument is not properly preserved under Rule 5A:18.
III. CONCLUSION
For the foregoing reasons, we affirm the decision of the circuit court.
Affirmed.
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