John R. Fricchione v. Cheryl Matthew

• Court: Court of Appeals of Virginia
• Decided: August 1, 2023
• Docket: 0690222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Ortiz, Chaney and Senior Judge Haley UNPUBLISHED

Argued by videoconference

JOHN R. FRICCHIONE MEMORANDUM OPINION* BY v. Record No. 0690-22-2 JUDGE VERNIDA R. CHANEY AUGUST 1, 2023 CHERYL MATTHEW

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG Gordon F. Willis, Judge

Paul L. Warren (Ryan V. Dougherty; Colin A. Dale; Warren PLC, on brief), for appellant.

Desmond L. Rice (Ramika D. Stephens; Stephanie M. Dahl & Associates, on brief), for appellee.

John R. Fricchione appeals the circuit court’s order granting Cheryl Matthew’s motion to

strike the plaintiff’s evidence for failure to make a prima facie case of negligence. On appeal, he

argues that the circuit court erred by granting Matthew’s motion to strike because there was

evidence that Matthew “breached her duty of care to him when he fell at her property.” For the

following reasons, this Court affirms the circuit court’s judgment.

BACKGROUND

“According to well-settled principles of appellate review, when the trial court grants a

motion to strike the plaintiff's evidence, we review the evidence on appeal in the light most

favorable to the plaintiff.” Collelo v. Geographic Servs., Inc., 283 Va. 56, 67 (2012) (quoting

Green v. Ingram, 269 Va. 281, 284 (2005)). Accordingly, we state the facts in the light most

* This opinion is not designated for publication. See Code § 17.1-413(A). favorable to Fricchione. Additionally, we grant Fricchione “the benefit of all substantial conflict

in the evidence, and all fair inferences that may be drawn therefrom.” Egan v. Butler, 290 Va.

62, 73 (2015) (quoting Hadeed v. Medic-24, Ltd., 237 Va. 277, 281 (1989)).

On the morning of January 18, 2020, Fricchione, the owner of J&J Tile, traveled to

Matthew’s home for the first time for a scheduled appointment to take measurements and

provide an estimate to install a backsplash in Matthew’s kitchen. That morning, “it was cold

out,” with “freezing rain,” and had “snowed . . . lightly the night before.”

Upon arriving, Fricchione traveled an icy walkway leading to the front door of Matthew’s

home. In doing so, Fricchione climbed a brick stairway (the “stairway”), which had “scattered

snow” and ice on its steps. “There [were] no broken bricks [and] no broken railing” on the

stairway. After reaching the top of the stairway, Fricchione then crossed a sloped brick pathway

that connected to the front steps of Matthew’s home. He then entered the home, measured its

kitchen walls, and provided Matthew with an estimate for the backsplash installation.

After providing the estimate, Fricchione exited the home in the same way he had entered.

When he left Matthew’s home, the weather conditions were icy, snowy, and rainy. As he walked

toward the stairway, Fricchione did not see any coloration or any other markings along the top

step identifying it as the top step. The alignment of the bricks on the top step was the same as

the alignment of the bricks on the walkway leading to the stairway.

As Fricchione approached the stairway with his clipboard book in his right hand, he

grabbed the stairway railing using the same hand. Fricchione then felt his “legs [come] out from

underneath [him]” and fell, injuring his right shoulder and left hip.

In November 2020, Fricchione filed a personal injury complaint against Matthew in the

circuit court, alleging that “Matthew was aware of the ice on her front walkway and failed to

keep the front stairway to her home free and clear of freezing water and ice.” Fricchione’s

-2- complaint further alleged that Matthew “knew, or in the exercise of reasonable care should have

known, of the unsafe condition of the ice-covered steps on the stairway, or . . . created said

condition, in her negligent maintenance of the stairway, and . . . should have corrected the

condition or warned [him] of its existence.” Matthew answered the complaint, and the case

proceeded to a jury trial on April 7, 2022.

At trial, Fricchione testified to all the facts recited above. He further testified that when

he fell, he “didn’t know where [he] was” and that he “couldn’t tell where the first [step] or the

next one was.” Rather, “before [he] could even judge it, [his] legs came out from underneath

[him] and [he] went down.” Fricchione testified that he “felt the ice when [his] legs came out

from underneath [him].” Fricchione reported to his doctor that he “slipped on some ice.”

Matthew, called as an adverse witness, testified that she woke up thirty minutes before

Fricchione arrived. Matthew had yet to go outside when Fricchione arrived and was unaware

that any snow, rain, or ice had accumulated during the night. Fricchione told Matthew that “it

was getting slick out there.”

Matthew also testified that she did not design the stairway and had hired a licensed

contractor to replace the concrete steps with bricks around “fifteen, sixteen years ago.” In

examining the photograph of the stairway, Matthew pointed out that the bricks on each side of

the pathway leading to the stairway “[were] laid differently” than the bricks forming the steps of

the stairway. Matthew acknowledged that there are no markings showing where the top step and

second step are.

At the close of Fricchione’s case-in-chief, Matthew moved to strike the evidence. She

argued that Fricchione had knowledge of the icy condition of the stairway, the danger was open

and obvious, and Matthew did not breach any duty owed to Fricchione as an invitee. Matthew

further argued that there was no evidence “that the way the bricks were laid was structurally

-3- compromised or structurally incorrect,” or that she had notice of an issue that would give rise to

a duty to warn Fricchione about the design of the stairway.

In response, Fricchione contended that his case was not “a failure to clear snow and ice

case” and “has not been presented that way.” Rather, he argued that the way “the bricks were

aligned [gave] no signal that there [was] a change in height,” that their alignment was incorrect

as a matter of “common sense,” and that the weather “exacerbated” the danger presented by the

way the bricks were aligned. Fricchione claimed that “common sense says you need to mark

where the top of the steps are, because it is a lot harder to see when there’s bad weather.”

Fricchione maintained that Matthew would have fulfilled her duty to him as an invitee if she had

marked the front step, warned him regarding the absence of a signal, or instructed him to exit

through the back door of her home.

After considering the arguments of the parties, the circuit court granted Matthew’s

motion to strike. In doing so, the court found that “there has been no evidence that the

appearance of these steps is somehow a breach of a standard of care, or somehow negligently

built, or improperly built.” The court also noted that Fricchione testified that “there was nothing

wrong with the . . . steps or railing, nothing broken.” The circuit court found that the

uncontradicted evidence established that “Matthew hadn’t been outside, hadn’t seen the

conditions of the front steps on that day, but . . . [Fricchione] actually had, because he had

ascended them.” Additionally, based on uncontradicted testimony, the court found that

Fricchione told Matthew that the steps were slippery. The circuit court concluded that when

Fricchione “chose . . . to go back down those steps,” “he was in a better position or, at worst, an

equal position to see the condition of those steps under those [weather] conditions” as was

Matthew. Applying the holding in Tate v. Rice, 227 Va. 341, 345 (1984), the circuit court

-4- granted the motion to strike and entered an order dismissing the case with prejudice. This appeal

followed.

ANALYSIS

On appeal, Fricchione argues that the circuit court erred by granting Matthew’s motion to

strike because he presented sufficient evidence to show that Matthew “breached her duty of care

to him when he fell at her property.” In order to survive a motion to strike in a premises liability

case, “the plaintiff must introduce evidence of the responsible [party’s] actual or constructive

knowledge of a defective condition on the premises to establish a prima facie case of

negligence.” AlBritton v. Commonwealth, 299 Va. 392, 405 (2021) (quoting Grim v. Rahe, Inc.,

246 Va. 239, 242 (1993)). “When ruling on a motion to strike a plaintiff’s evidence, a trial court

is required to accept as true all evidence favorable to a plaintiff and any reasonable inferences

that may be drawn from such evidence.” Volpe v. City of Lexington, 281 Va. 630, 639 (2011)

(quoting TB Venture, LLC v. Arlington Cnty., 280 Va. 558, 562 (2010)). “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.” Id. at 639

(quoting TB Venture, LLC, 280 Va. at 562-63).

On review of a trial court’s judgment granting a motion to strike the plaintiff’s evidence,

this Court applies “the same principles that applied in the trial court, accepting as true all the

evidence favorable to the plaintiff[] as the non-moving part[y] and ‘any reasonable inference a

jury might draw therefrom’ in support of the plaintiff[‘s] case.” Welton v. Branch Banking & Tr.

Co., 785 S.E.2d 217, 221 (Va. 2016) (quoting Upper Occoquan Sewage Auth. v. Blake Constr.

Co., 266 Va. 582, 590 n.6 (2003)). “The judgment of the trial court is to stand unless plainly

wrong or without evidence to support it.” Id. (quoting Nationwide Mut. Ins. Co. v. St. John,

259 Va. 71, 76 (2000)).

-5- Fricchione contends that the “evidence sufficiently showed that there was a non-obvious

and unsafe condition that could have caused his accident,” namely the design of the stairway.1

He argues that his testimony regarding his descent of the stairway, “particularly the difficulty

identifying the first step on which he slipped and fell,” and the photograph of the stairway were

sufficient to establish that the design of the stairway constituted an unsafe condition. We

disagree.

“It is incumbent on the plaintiff who alleges negligence to show why and how the

accident happened, and if that is left to conjecture, guess or random judgment, he cannot

recover.” Lucas v. Riverhill Poultry, Inc., 300 Va. 78, 95 (2021) (quoting McFadden v. Garrett,

211 Va. 680, 683 (1971)). As the circuit court observed, the record fails to include any evidence

as to what the standard of care is with respect to designing a brick stairway, let alone whether the

design of the stairway or the failure to warn of the dangers it presented breached that standard of

care. Indeed, there is no testimony or evidence in the record that the stairway was improperly

designed at all. See Chandler v. Graffeo, 268 Va. 673, 681 (2004) (standard of care may not be

left to speculation). To the contrary, Matthew testified without contradiction that the stairway

was constructed by a licensed contractor. Accordingly, there was no evidence that would have

allowed the jury to find that the design of the stairway created an unsafe condition.2 See

Simmons v. Miller, 261 Va. 561, 572 (2001) (“[I]f a jury necessarily has reached its conclusions

1 Fricchione’s complaint does not allege that the design of the stairway resulted in an unsafe condition. On appeal, Fricchione argues that his evidence “focused on both the conditions of the stairs and the construction of them, which together created an unsafe condition leading to [his] injury.” However, all of Fricchione’s arguments in support of his appeal rest upon his belief that the construction or design of the stairway constituted an “unsafe condition.” 2 Fricchione contends that in granting the motion to strike, the circuit court improperly “weigh[ed] the credibility of competing witnesses, namely Fricchione and Matthew.” However, there was no evidence to support a finding that the brick stairway was designed, constructed, or maintained in breach of a standard of care. -6- based on speculation and conjecture, the plaintiff’s case fails.” (quoting O’Brien v. Everfast, Inc.,

254 Va. 326, 330 (1997))).

In his final argument, Fricchione contends that both the design of the stairway and

weather created “an unresolved factual issue as to when or if Matthew’s duty to take remedial

action from the previous night’s snow may have been triggered.” (Emphasis added). To support

his claim that Matthew had such a duty, Fricchione argues that this case is distinguishable from

Tate v. Rice, which held that “the duty of the owner or occupier of a private residence to

maintain his premises in a condition which is reasonably safe for an invitee does not extend to

warning of, or removing, a danger that is open and obvious.” 227 Va. at 348.

This Court agrees with the circuit court’s ruling that this case is indistinguishable from

Tate with respect to alleged negligence relating to the ice and snow on Matthew’s stairway.

However, Fricchione specifically abandoned his claim that Matthew had a duty to clear the snow

or ice on the stairway or negligently failed to do so. Rather, he specifically argued to the

contrary that this case was not “a failure to clear snow and ice case” and “has not been presented

that way.” “The Supreme Court of Virginia has ‘repeatedly stated, [that] ‘no litigant . . . will be

permitted to approbate and reprobate—to invite error . . . and then to take advantage of the

situation created by his own wrong.’” Lundmark v. Commonwealth, 74 Va. App. 569, 582

(2022) (quoting Garlock Sealing Techs., LLC v. Little, 270 Va. 381, 388 (2005)). For the

foregoing reasons, we hold that the circuit court did not err in granting Matthew’s motion to

strike.

CONCLUSION

For the foregoing reasons, the circuit court’s judgment is affirmed.

Affirmed.

-7-