 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Kendrick v. Vaz Inc.9/18/1992
In this personal injury case, we consider whether the trial court erred (1) in excluding the testimony of the plaintiff's expert witness and (2) in striking the evidence and entering final judgment in favor of the defendants.
Kathleen H. Kendrick fell and broke her ankle while pushing her children on a merry-go-round on the premises of a Holiday Inn where she and her family were staying. This Holiday Inn was owned and operated by Vaz, Inc. and others (collectively Vaz). Kendrick filed a motion for judgment against Vaz, asserting that Vaz was negligent in failing to maintain the premises in a reasonably safe condition and in failing to give a reasonable warning of any concealed or unsafe conditions on the premises.
The accident occurred on Kendrick's first visit to the playground area. She did not look on the ground for any dangerous conditions because she assumed that the play area was safe. Kendrick testified that as she was pushing the merry-go-round at a "fast clip," she heard "a crack like firewood, and felt foot slip into a hole." She testified that although she felt the hole, she did not see it. She also testified that nothing prevented her from observing the condition of the ground all around the merry-go-round; however, its circular seat blocked her view of the ground directly underneath.
During cross-examination, Kendrick was asked whether she told a hotel investigator 30 days after the accident that the ground was level. Kendrick testified that she did not remember and, therefore, that she could not deny having made this statement.
Bruce Adams, the maintenance engineer at the Holiday Inn, testified that there were tracks alongside the merry-go-round where the grass had been worn off. As a result, there was a three-quarter inch dip in the ground surface. He described this condition as "abused" earth. In contrast, Adams described the ground underneath the seat of the merry-go-round as being level and covered with grass. This level area extended nine inches underneath the merry-go-round directly below the seats. Inside this grassy strip was another area of abused ground which was caused by the dragging feet of the seated riders. Adams testified that, to reach this interior area from outside the merry-go-round, a foot would have to extend beyond nine inches under the seat.
Kendrick offered Elizabeth Campbell as an expert witness in playground materials and safety. The trial court excluded Campbell's testimony, ruling that the condition of the playground surface was not a proper subject for expert opinion.
After Kendrick rested her case, Vaz moved to strike her evidence asserting that Kendrick failed to establish that a dangerous condition, which was not open and obvious, existed on the premises. The trial court took Vaz's motion under advisement.
Stephanie Leap, an investigator for Holiday Inn, testified for the defense that she interviewed Kendrick shortly after the accident. Leap testified that Kendrick stated:
" t was level ground, and it wasn't wet. It wasn't muddy. The only thing that I can think of is that maybe there was a little bit of a hole underneath it so that a person's foot could fall in, but
I don't really remember if that was the case. You know when it happened, it just hurt, and I just really don't remember."
According to Leap, at another point in their conversation, Kendrick said, "the dirt was a little bit of a hole, and I think my foot fell in that a little bit as I was running and it twisted."
Grego
Page 1 2 3 Virginia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|