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Chapman v. City of Virginia Beach9/13/1996
oes] on the boardwalk is done in the spring prior to the tourist season."
Based on this record, we conclude that the trial court erred in setting aside the jury verdict. The accident occurred in an area constructed and maintained by the City as a recreational facility. The purpose of such an area is to attract visitors of all ages to come to and enjoy the facility, in this case, the beach and boardwalk. Under the City's own operating procedures, the gates were to be closed unless City employees were performing maintenance functions. Despite repeated notices by its own employee, the City did not take any action. The decision not to take any action was deliberate. On this record, reasonable persons could differ upon whether the cumulative effect of these circumstances constitutes a form of recklessness or a total disregard of all precautions, an absence of diligence, or lack of even slight care. Accordingly, the issue was properly submitted to the jury, there was credible evidence to support the jury verdict, and the trial court erred in setting aside the jury verdict. This determination does not end the matter, however; we next consider the City's assignment of cross-error.
III. EXPERT TESTIMONY
The City contends that the trial court erred when it admitted the expert opinion testimony of Shelly Deppa. Deppa was offered as a "human factors psychologist" and testified that the physical properties, configuration, and unsecured condition of the gate section created a hazard and that it was reasonably foreseeable that a child's head could become entrapped in the gate section. The City maintains that this testimony did not assist the trier of fact and should not have been admitted as expert opinion testimony. We agree.
It was within the common knowledge of the jury that the area was a recreational area that attracted children and the evidence introduced at trial showed the size of the opening between the two metal bars in the gate section. Whether the condition of the gate section created a dangerous condition and whether it was reasonably foreseeable that an injury could occur as a result of the gate's condition were issues within the range of common experience. The admission of expert testimony is inappropriate for matters of common experience. Board of Supervisors v. Lake Servs., Inc., 247 Va. 293, 297, 440 S.E.2d 600, 602 (1994).
In light of this holding, the case must be remanded for a new trial. While it is not necessary to address whether the verdict incorrectly was limited to recovery by the father, two other issues raised by the Chapmans may arise on remand and, therefore, we will address those assignments of error.
IV. NUISANCE
Count IV of the Chapmans' motion for judgment asserted a cause of action based on nuisance. Following Conclusion of the evidence, the trial court struck this count, and submitted the case to the jury solely on the negligence count. The trial court concluded that the failure to properly maintain the gate, the basis for the negligence count, also was the basis for the nuisance count. Thus, the trial court held, the nuisance count actually was a negligence cause of action. The Chapmans assert that this was error and we agree.
Negligence and nuisance are distinct legal concepts. A cause of action for public nuisance is based on a claim of injury resulting from a condition which is dangerous to the public. Taylor v. City of Charlottesville, 240 Va. 367, 372, 397 S.E.2d 832, 835 (1990). While negligent acts may give rise to the dangerous condition, the acts themselves do not constitute a nuisance.
Contrary to the trial court's Conclusion that the reliance on negligent acts def
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