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Chapman v. City of Virginia Beach9/13/1996
OPINION BY JUSTICE ELIZABETH B. LACY
In determining whether the trial court properly set aside a jury verdict and entered judgment in favor of the City of Virginia Beach in this wrongful death action, we consider issues relating to public nuisance, operation of a recreational facility, admission of expert testimony, gross negligence, and contributory negligence.
On December 15, 1991, Linda Chapman took her three children to the oceanfront Breakers Hotel in the City of Virginia Beach to visit relatives who were renting an apartment in the Hotel. Eight-year-old Missy and her three-year-old sister, Carolyn, went unaccompanied down to the boardwalk to play. Mrs. Chapman watched Missy and Carolyn from a window in the apartment. She saw Carolyn sitting on top of a section of a gate mounted on the boardwalk railing. Missy was pushing the gate section so that it would swing while Carolyn sat on it.
The gate was constructed by the City to allow maintenance vehicles to access the beach from the boardwalk. In its normal condition, the gate consisted of two sections, each hinged on one end to the boardwalk railing and fastened together on the other end with a metal latch. Each gate section had two nearly horizontal metal bars which tapered from their widest point at the boardwalk railing to the middle where the sections met. Sometime prior to October 1991, one section of the gate, the south section, had broken from its hinges and lay in the sand below the boardwalk. The other section of the gate, the north section, remained secured at one end to the boardwalk railing. Missy was pushing Carolyn on the north section of the gate as it swung from the boardwalk over the sand.
At some point, Missy's head became entrapped between the two metal bars in the north section of the gate. When the gate swung out over the sand, Missy's feet could not touch the ground and she was left hanging by her neck. A jogger discovered Missy and notified a nearby hotel clerk. The hotel clerk attempted to resuscitate Missy, and the rescue squad was called. Missy was transported to the hospital but had suffered severe brain damage. Two days later, on December 17, 1991, Missy was pronounced dead.
Missy's parents, Linda and Donald Chapman, as co-administrators of Missy's estate, filed a wrongful death action against the City, alleging simple negligence, gross negligence, and nuisance. The trial court struck the nuisance count and held that, pursuant to Code § 15.1-291, the City was only liable for gross negligence. The trial court also granted the City's contributory negligence instruction with regard to Linda Chapman.
The jury returned a $300,000 verdict in favor of Missy's father only and $18,618.79 for funeral expenses and medical bills. The City filed a motion to set aside the jury verdict, arguing that, as a matter of law, the evidence was insufficient to establish gross negligence. The trial court granted the City's motion and entered judgment in favor of the City.
The Chapmans appealed, assigning error to the trial court's actions in striking the nuisance count, holding that the boardwalk was a recreational facility requiring a showing of gross negligence to impose liability on the City under § 15.1-291, holding as a matter of law that the evidence was insufficient to prove gross negligence, failing to set aside the verdict because it did not compensate all the statutory beneficiaries, and granting the contributory negligence instruction regarding Linda Chapman. The City assigned cross-error to the admission of certain expert testimony. We awarded an appeal on all assignments of error and the assignment of cross-error.
I. RECREATIONAL FACILITY<
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