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Chapman v. City of Virginia Beach9/13/1996
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The trial court held that the boardwalk is a recreational facility and therefore, pursuant to § 15.1-291, the City could only be liable for acts which constituted gross negligence. The Chapmans assert that this was error because the boardwalk is a street or a sidewalk, not a recreational facility. We disagree with the Chapmans.
The boardwalk is an area which stretches along a considerable portion of the City's beach. It is designed for recreational use, whether to access the beach itself or as a promenade for walking along the beach. Neither assigning the maintenance responsibility to the City's department of highways nor allowing vehicles to drive on the boardwalk to perform their maintenance functions transforms the nature of the facility from a place of recreation to a street. Accordingly, we will affirm the trial court's holding that the boardwalk is a recreational facility as that term is used in § 15.1-291.
II. GROSS NEGLIGENCE
The Chapmans next complain that the trial court erred in setting aside the jury verdict based on its holding that, as a matter of law, the actions of the City did not constitute gross negligence. Gross negligence has been described as the "utter disregard of prudence amounting to complete neglect of the safety of another." Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691 (1987). "It is a heedless and palpable violation of legal duty respecting the rights of others" which amounts to the "absence of slight diligence, or the want of even scant care." Town of Big Stone Gap v. Johnson, 184 Va. 375, 378, 35 S.E.2d 71, 73 (1945) (citations omitted). Several acts of negligence which separately may not amount to gross negligence, when combined may have a cumulative effect showing a form of reckless or total disregard for another's safety. Kennedy v. McElroy, 195 Va. 1078, 1082, 81 S.E.2d 436, 439 (1954). Deliberate conduct is "important evidence on the question of gross negligence." Id. Whether gross negligence has been established is usually a matter of fact to be decided by a jury. Frazier, 234 Va. at 393, 362 S.E.2d at 691.
In reviewing the action of the trial court here, the Chapmans, having received a favorable jury verdict, are entitled to the benefit of all substantial conflicts in the evidence and all fair inferences which can be drawn from the evidence. Mann v. Hinton, 249 Va. 555, 557, 457 S.E.2d 22, 23 (1995). The jury verdict should be reinstated if there is any credible evidence to support it. Id.
The record in this case shows that all the gates on the boardwalk, like the gate in issue, were supposed to be kept closed except when city personnel opened them to perform maintenance tasks. William Lonnie Gregory, supervisor of the city department in charge of maintaining the gate, was informed on at least three occasions prior to Missy's accident that the gate was broken. These reports were made by Wayne Lee Creef, the employee charged with inspecting and reporting maintenance problems in the resort area of the City. The first report followed an event called the Neptune Festival, an event held at the end of September. A second oral report was made in October. In the early or middle part of November, Creef again reported the broken gate. He put this report in writing, "assuming that it was going to be a work order put into effect."
Gregory had the authority to schedule and initiate repair of the gate but did not direct that any immediate action be taken in response to Creef's reports. Gregory made a deliberate decision not to order that the gate be repaired or that the north section be secured at the time the reports were made because "most of the maintenance work that [the City d
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