Food Lion, Inc. v. Max-Yeboah ( 2004 )

Present: All the Justices
SOUTHERN FLOORS AND ACOUSTICS, INC.
v. Record No. 031097 OPINION BY JUSTICE DONALD W. LEMONS
April 23, 2004
ANTHONY MAX-YEBOAH
FOOD LION, INC.
v. Record No. 031140
ANTHONY MAX-YEBOAH, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
In this appeal, we consider whether a customer who is
injured by tripping over a stack of floor tiles in a grocery
store where the floor is being re-tiled is contributorily
negligent as a matter of law and, if not, whether both the
independent contractor installing the new floor and the store
owner can be held liable to the customer for his injuries.
I. Facts and Proceedings Below
Anthony Max-Yeboah ("Max-Yeboah") tripped over a stack of
tiles in an aisle of a Food Lion, Inc. ("Food Lion") grocery
store in Charlottesville, Virginia and broke his ankle. On
the evening of Max-Yeboah's accident, employees of Southern
Floors and Acoustics, Inc. ("Southern Floors"), a
subcontractor, were installing new floor tiles in the aisle
where Max-Yeboah was injured. The Southern Floors employees
had spread glue on part of the floor of the aisle an hour
before Max-Yeboah entered it and were waiting for the glue to
become "tacky" so that new tiles could be installed. One end
of the aisle was completely blocked by caution tape.
Conflicting testimony was offered concerning whether, and to
what degree, the other end of the aisle was blocked by a fan
used to dry the glue, and caution tape.
Between 15 and 20 Southern Floors employees were working
in the aisle on a number of tasks associated with the tiling
process at the time of the accident. Although Max-Yeboah
testified at trial that he was not aware that work was being
performed on the floors when he entered the aisle, he was
aware that work associated with the remodeling of the store
was occurring throughout the store.
Max-Yeboah entered the aisle where the tile work was
occurring to get some frozen food. He testified at trial that
he did not see the stack of tiles he eventually tripped over,
although he had walked past them on his way into the aisle,
because he was looking at a freezer case for frozen food.
While Max-Yeboah was standing in front of the freezer case, a
Southern Floors employee told Max-Yeboah to "go back" because
he was standing in the glue which was not yet dry. Max-Yeboah
alleges that the man yelled at him and pointed which led Max-
Yeboah to believe that something was falling toward him. At
trial, the employee recalled addressing Max-Yeboah but did not
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recall yelling. In response to the instruction from the
Southern Floors employee, Max-Yeboah turned quickly to exit
the aisle, tripped over a foot-high stack of tiles placed next
to the freezer unit, and broke his ankle.
Max-Yeboah filed suit against both Southern Floors and
Food Lion. At trial, the jury was given conflicting
instructions. One instruction provided that "[a] person who
hires an independent contractor is not liable for his
actions." The jury was also instructed that, "where the owner
of the premises had control and oversight at the site where
work was being done by the contractor, he is responsible for
the negligent actions of an independent contractor."
The trial court overruled Food Lion's objection to the
latter instruction. The jury returned a verdict for Max-
Yeboah, finding Food Lion and Southern Floors jointly and
severally liable and awarding Max-Yeboah damages in the amount
of $30,000. Food Lion and Southern Floors appeal the
judgments adverse to them.
II. Analysis
A. Contributory Negligence
Southern Floors and Food Lion maintain on appeal that the
trial court should have held that Max-Yeboah was
contributorily negligent as a matter of law because the tiles
that he tripped over were an open and obvious condition, which
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he noticed or should have noticed when he initially entered
the aisle. They maintain that Max-Yeboah tripped over the
tiles because he failed to be reasonably aware of his
surroundings. Max-Yeboah contends that he was distracted by
the yelling and pointing by the Southern Floors employee and
that these special circumstances excused his failure to see
the tiles.
When a plaintiff is injured by an open and obvious
defect, it is his burden "to show conditions outside of
himself which prevented him seeing the defect or which would
excuse his failure to observe it . . . . When they do not
exist the law charges the party with failure to do what was
required of him." City of South Norfolk v. Dail, 187 Va. 495,
505, 47 S.E.2d 405, 409 (1948); see also Hill v. City of
Richmond, 189 Va. 576, 584, 53 S.E.2d 810, 813 (1949).
However, "more is needed than a simple allegation of a
distraction to create a jury issue. It [is] necessary for
[the] plaintiff to establish that his excuse for inattention
was reasonable, i.e., that the distraction was unexpected and
substantial." West v. City of Portsmouth, 217 Va. 734, 737,
232 S.E.2d 763, 765 (1977).
While the one-foot high stack of tiles Max-Yeboah tripped
over was clearly an open and obvious hazard, Max-Yeboah
offered evidence of an extrinsic condition, in the form of the
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Southern Floors employee's yelling and pointing to excuse his
inattention. If believed, the condition was unexpected,
placed him in fear of bodily harm, and constituted a
substantial distraction. Determining the credibility and the
weight of the evidence is the province of the finder of fact,
in this case, the jury. Therefore, the question of Max-
Yeboah's contributory negligence was properly submitted to the
jury. The trial court did not err in refusing to hold that
Max-Yeboah was contributorily negligent as a matter of law.
B. Liability of Food Lion
Food Lion maintains that, even if Max-Yeboah is not
contributorily negligent, Food Lion cannot be held liable
because its employees were not involved in the work, it had no
duty to supervise an independent contractor, and it had no
actual or constructive notice of the defect. Further, Food
Lion argues that the trial court erred in giving conflicting
and irreconcilable instructions to the jury on this issue. We
agree.
Southern Floors was clearly an independent contractor.
As we have previously stated, "An independent contractor is one
who undertakes to produce a given result without being in any
way controlled as to the method by which he attains that
result." Craig v. Doyle, 179 Va. 526, 531, 19 S.E.2d 675, 677
(1942).
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If under the contract the party for whom
the work is being done may prescribe not only
what the result shall be, but also direct the
means and methods by which the other shall do
the work, the former is an employer, and the
latter an employee. But if the former may
specify the result only, and the latter may
adopt such means and methods as he chooses to
accomplish that result, then the latter is not
an employee, but an independent contractor.
Craig, 179 Va. at 531, 19 S.E.2d at 677; MacCoy v. Colony
House Builders, 239 Va. 64, 67-68, 387 S.E.2d 760, 762 (1990).
In cases involving liability of owners of property for
injuries to third parties arising from conditions on the
premises caused by independent contractors, the possible
theories of recovery include vicarious liability of the owner
for the acts of the independent contractor,1 and independent
liability for the separate negligence of the owner.
1
The general rule regarding liability of an owner of
property for the negligence of an independent contractor has
been clearly stated: “As a general rule, an owner who employs
an independent contractor is not liable for injuries to third
persons caused by the contractor's negligence.” Kesler v.
Allen, 233 Va. 130, 134, 353 S.E.2d 777, 780 (1987), C & P
Telephone Company v. Properties One, 247 Va. 136, 140-41, 439
S.E.2d 369, 372 (1994). In Kesler, we noted:
Exceptions exist, and the doctrine of
respondeat superior may become applicable, if
the independent contractor's torts arise
directly out of his use of a dangerous
instrumentality, arise out of work that is
inherently dangerous, are wrongful per se, are
a nuisance, or are such that it would in the
natural course of events produce injury unless
special precautions were taken. Broaddus v.
Standard Drug Co., 211 Va. 645, 649, 179 S.E.2d
497, 501 (1971); N. & W. Railway v. Johnson,
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Initially, we note that Food Lion moved to dismiss Max-
Yeboah's claim of vicarious liability of Food Lion for the
negligent acts of Southern Floors. The trial court granted
the motion and, in a pretrial order, dismissed all claims of
vicarious liability from the case. In its order, the trial
court held that "[t]his dismissal shall have no effect on
plaintiff's general negligence claims against Food Lion."
With the claim of vicarious liability removed from the case,
the only claim remaining against Food Lion was for its alleged
independent liability for separate negligence in "failing to
see that proper warnings and safety conditions existed at the
scene of the work."
Curiously, and over the objection of Food Lion, the trial
court instructed the jury that Food Lion could be held
"responsible for the negligent actions of an independent
contractor." It was error to instruct the jury on a claim
that had been removed from the case.
On appeal, most of Max-Yeboah's argument concerning
liability of Food Lion is stated in terms of vicarious
207 Va. 980, 983-84, 154 S.E.2d 134, 137
(1967); Smith Adm'r. v. Grenadier, 203 Va. 740,
747, 127 S.E.2d 107, 112 (1962); Ritter Corp.
v. Rose, 200 Va. 736, 742, 107 S.E.2d 479, 483
(1959).
Kesler, 233 Va. at 134, 353 S.E.2d at 780. None of the
enumerated exceptions exist in this case.
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liability, a claim removed from the case prior to trial.2
However, Max-Yeboah does argue that our decisions in Love v.
Schmidt, 239 Va. 357, 389 S.E.2d 707 (1990), and Kesler v.
Allen, 233 Va. 134, 353 S.E.2d 777 (1987) together support the
liability of Food Lion under the facts of this case and the
issues remaining at trial.
Our holding in Kesler was explicit: "We hold that a
landlord, in the absence of one of the exceptions to the
general rule, has no vicarious liability to a tenant for the
negligence of an independent contractor in making repairs or
improvements." Id. at 134, 353 S.E.2d at 780. Kesler dealt
with vicarious liability, not independent liability of the
owner of property. It has no application to this case.
In Love, the plaintiff was injured when she fell off a
loose toilet seat. We affirmed the judgment against the
landlord-owner, holding that "if a duty to maintain a premises
in a safe condition is imposed by contract or by law, it
cannot be delegated to an independent contractor." Love, 239
Va. at 357, 360-61, 389 S.E.2d at 709. Unlike circumstances
involving discrete and isolated repair and improvement, the
work at issue in Love involved regular and routine
2
For example, Max-Yeboah states on brief, "The issue of
Food Lion's responsibility for the negligence of Southern
Floors . . . was an issue for the jury," and "[t]he jury was
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maintenance, repair, and janitorial services. We
characterized the owner's arguments against imposition of
liability as "an attempt to delegate the landlord's common-law
duty to maintain his premises in a reasonably safe condition."
Id. at 361, 389 S.E.2d at 710.
With regard to Food Lion's independent liability to Max-
Yeboah, the jury was properly instructed that:
An occupant of the premises has the duty to an invitee:
1. To use ordinary care to have the premises
in a reasonably safe condition for an
invitee's use consistent with the
invitation; but an occupant does not
guarantee an invitee's safety; and
2. To use ordinary care to warn an invitee of any
unsafe condition which the occupant knows, or by the
use of ordinary care should know, about; except that
an occupant has no duty to warn an invitee of an
unsafe condition which is open and obvious to a
person using ordinary care for his own safety.
3. If an occupant fails to perform either or both of
these duties, then he is negligent.
Food Lion argues correctly that Max-Yeboah presented no
evidence that Food Lion had either actual or constructive
notice of the alleged hazard, the stack of tiles. It is hard
to imagine that Food Lion could have known about the tiles
because the work was ongoing and the conditions in the aisle
were constantly changing.
correct in finding Food Lion, Inc. responsible for the
negligence of its contractor."
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Additionally, Max-Yeboah argues that Food Lion
negligently failed to supervise Southern Floors in its work.
Southern Floors was a subcontractor of a general contractor
with whom Food Lion had contracted for store renovations.
Southern Floors was neither selected nor actually supervised
by Food Lion. As previously noted, Southern Floors was an
independent contractor. It is illogical and antithetical to
the definition of an independent contractor to impose a duty
to supervise upon the principal when the essence of the
relationship is lack of power and control to supervise. Food
Lion had no duty to supervise the means and method of the work
of Southern Floors and cannot be found independently negligent
for failing to do so. MacCoy 239 Va. at 69, 387 S.E.2d at
762; Craig, 179 Va. at 531, 19 S.E.2d at 677.
III. Conclusion
We hold that the question of Max-Yeboah’s contributory
negligence was properly submitted to the jury and the trial
court did not err in refusing to hold that he was
contributorily negligent as a matter of law. However, the
trial court did err in its instruction to the jury that Food
Lion could be held liable for the negligence of Southern
Floors. Further, we hold that Food Lion is not independently
negligent because it did not have a duty to supervise Southern
Floors in its means and method of work, nor did Food Lion have
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actual or constructive knowledge of the stack of tiles in the
aisle. Accordingly, the judgment against Southern Floors will
be affirmed and the judgment against Food Lion will be
reversed.
Affirmed in part,
reversed in part,
final judgment.
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