Present: All the Justices 

EDNA WOOD 

v. Record No. 981197 OPINION BY JUSTICE CYNTHIA D. KINSER 

 June 11, 1999 

WOOLFOLK PROPERTIES, INC., ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Walter W. Stout, III, Judge 

The primary issue in this premises liability case is 

whether the circuit court erred by admitting evidence 

pertaining to the absence of prior accidents. Finding 

error in the circuit court’s judgment, we will reverse. 

I. 

This appeal arises out of an accident that occurred on 

the evening of May 20, 1994, in front of Ruth’s Chris Steak 

House (Ruth’s) located in Chesterfield County. The 

plaintiff, Edna Wood (Wood), and several members of her 

family ate dinner at the restaurant that night. After 

finishing their dinner, the Wood party prepared to leave 

the restaurant. While Wood’s son went to the parking lot 

to retrieve his vehicle, Wood and the others waited outside 

the restaurant. Wood’s son drove the vehicle into a 

circular driveway in front of the restaurant and stopped it 

approximately two or three feet from the curb. As Wood 

approached the rear door of the stopped vehicle, she 

appeared to “step[] into air” and fell down. As a result 
of the fall, Wood sustained physical injuries and incurred 

medical expenses. 

Ruth’s is located in a shopping center that is owned 

by defendant Bellgrade Development Company, Inc. 

(Bellgrade). Defendant Woolfolk Properties, Inc. 

(Woolfolk), is the “managing member” of Bellgrade and 

provides property management and maintenance services to 

the shopping center. 

 The curb where Wood fell is a transitional area that 

is slanted rather than perpendicular. The transitional 

curb between the sidewalk and the circular driveway has a 

thirty-degree slope, is eight inches long, and drops four 

inches in height from the sidewalk to the driveway. The 

sidewalk, transitional curb, and driveway are designed with 

varying colors, patterns, and textures of brick in order to 

give pedestrians visual clues with regard to the different 

surfaces, heights, and grades as they walk from the 

driveway onto the sidewalk and into the restaurant. 

 Although the original design of the restaurant did not 

call for the curb to be painted, it had been painted white 

sometime prior to the night of Wood’s accident. In 1992, 

Charles Lytton, chief executive officer of Woolfolk, 

decided that the transitional area should be painted white 

for both aesthetic and safety reasons. He testified that 

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it was initially an aesthetic idea but that the white paint 

also made the curb area more visible. He described the 

paint as “an enhancement to visibility.” 

On April 22, 1997, Wood filed a motion for judgment 

against Woolfolk and Bellgrade alleging that the defendants 

negligently owned, operated, and maintained Ruth’s and the 

surrounding premises; allowed certain unsafe conditions to 

exist on Ruth’s premises; and failed to warn the plaintiff 

about these unsafe conditions. Prior to trial, Wood filed 

a motion in limine to exclude any evidence regarding the 

absence of prior accidents at the curb area where she fell. 

Initially, the circuit court sustained the motion. 

However, at trial, the court reconsidered its ruling and 

allowed Lytton to testify, during cross-examination, that 

no one had fallen across the curb line prior to Wood’s 

accident.∗

 The court reasoned that the testimony rebutted 

the inference that, because of Lytton’s decision to paint 

the curb, the defendants had notice of an unsafe condition. 

During the cross-examination of Lytton, the court cautioned 

the jury that the evidence pertaining to the lack of prior 

accidents should be considered only with regard to the 

notice issue. 

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 At the close of Wood’s evidence, the court sustained a 

motion to strike with regard to Woolfolk and dismissed it 

from this action. The court took the motion under 

advisement as to Bellgrade and allowed the case to proceed 

to the jury. After deliberating, the jury returned a 

verdict in favor of Bellgrade. Wood then moved the court 

to set aside the verdict, but the court overruled the 

motion and entered judgment in favor of Bellgrade on March 

24, 1998. 

II. 

 We granted Wood this appeal on two assignments of 

error: (1) that the circuit court erred by allowing the 

defendants to introduce evidence regarding the absence of 

similar accidents at the curb area prior to Wood’s fall; 

and (2) that the court erred by granting the motion to 

strike the evidence as to Woolfolk. 

We find no merit to the second assignment of error. 

The uncontradicted testimony of Wood’s own witness, Lytton, 

establishes that Woolfolk managed the shopping center in 

which Ruth’s is located and provided maintenance services 

for it. Lytton further stated that, when he decided to 

have the transitional curb area painted white, he was 

__________________ ∗

 Wood called Lytton as a witness. The defendants 

elicited the challenged testimony during their cross4
acting as an owner of the property and was not performing a 

maintenance function. Moreover, the thrust of Wood’s claim 

against the defendants was that the curb was dangerous or 

unsafe in its design, not in how it was maintained. Thus, 

we conclude that the circuit court did not err in granting 

the motion to strike with regard to Woolfolk, dismissing it 

from this action. 

 However, we reach a different conclusion with regard 

to Wood’s first assignment of error. In addressing that 

issue, Bellgrade acknowledges that evidence establishing 

the lack of prior, similar accidents is generally not 

admissible in a negligence action. Nevertheless, Bellgrade 

asserts that this court created an exception to that rule 

in Sykes v. Norfolk & Western Ry. Co., 200 Va. 559, 106 

S.E.2d 746 (1959). 

In that case, this Court allowed the defendant railway 

company to introduce evidence as to the number of accidents 

that had previously occurred at a particular railroad 

crossing. We stated that the rule that “‘evidence of the 

absence of other injuries is not admissible when timely 

objection is interposed to it’” would be applicable “except 

for the fact that the plaintiff had introduced the 

testimony of the defendant company’s supervisor of signals 

__________________ 

examination of Lytton. 

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that he had recommended to his company that it install 

automatic crossing gates and flashers at [the] crossing [in 

question].” Id. at 565, 106 S.E.2d at 751 (quoting 

Sanitary Grocery Co. v. Steinbrecher, 183 Va. 495, 500, 32 

S.E.2d 685, 687 (1945)). The company had never implemented 

the recommendation. Although the plaintiff asserted that 

the evidence from the supervisor of signals was to prove 

that the defendant company had notice of the inadequacy of 

the signals, we held “that it . . . [was] permissible for 

the defendants to introduce the accident experience at the 

crossing to rebut the inference of negligence that might be 

made from the failure to follow this recommendation.” 

Sykes, 200 Va. at 565, 106 S.E.2d at 751. 

Bellgrade argues that its evidence showing the absence 

of prior accidents comes within the Sykes exception. 

According to Bellgrade, the evidence rebuts the inference 

that Lytton directed that the curb be painted white because 

he knew that it was an unsafe area. We do not agree. 

In Goins v. Wendy’s Int’l, Inc., 242 Va. 333, 410 

S.E.2d 635 (1991), the trial court allowed the introduction 

of testimony from two restaurant employees that they had 

not received any complaints of food poisoning as a result 

of the food served on the day that the plaintiff allegedly 

consumed contaminated food. We reversed the trial court on 

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the basis of the well-established rule that “evidence of 

the absence of other injuries is not admissible in a 

negligence action when timely objection to it is made” 

because it interjects into the trial collateral issues that 

confuse and mislead a jury. Id. at 335, 410 S.E.2d at 636. 

We further stated that “a departure from the rule would 

interject evidence so problematical, due to the potential 

for a lack of reporting and the variables of circumstances 

and conditions, that such evidence would have slight, if 

any, relevancy or probative value.” Id. at 335-336, 410 

S.E.2d at 636. 

The principles reiterated in Goins apply to the 

present case and preclude the introduction of evidence 

showing the absence of prior accidents in the area where 

Wood fell. Initially, we note that Lytton did not specify 

whether he was referring to the period of time before or 

after the curb was painted when he stated that no one had 

fallen across the curb line prior to Wood’s accident. The 

absence of accidents after the area was painted is not 

germane to whether Bellgrade had notice of an unsafe 

condition and thus painted the transitional area white 

because of that knowledge. Furthermore, Lytton’s testimony 

is problematical because of the potential that a customer 

will not report an accident. Id. Thus, to allow evidence 

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concerning the absence of prior accidents in premises 

liability cases for the purpose of refuting evidence 

showing notice of an unsafe condition would eviscerate the 

rule that we restated with approval in Goins. 

In addition, the present case is distinguishable from 

Sykes. Although the plaintiff in that case offered the 

evidence concerning the recommendation by the supervisor of 

signals to establish notice of inadequate signals, we 

recognized that the evidence created an inference of 

negligence because of the failure to follow the 

recommendation. Therefore, evidence as to the accident 

history at the crossing in question was admissible, not in 

regard to the notice issue, but to rebut that inference of 

negligence. In the present case, Lytton’s testimony about 

the lack of prior accidents is not arguably relevant to any 

issue other than notice. 

Finally, we do not believe that the introduction of 

this evidence was harmless error. It interjected 

collateral issues into the trial, and we are unable to say 

that it did not confuse or mislead the jury. The 

challenged evidence was prejudicial to Wood. See Sanitary 

Grocery Co., 183 Va. at 499, 32 S.E.2d at 686-87 (holding 

evidence showing absence of prior accidents misleads jury 

and is prejudicial). 

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Thus, for the reasons stated, we will affirm the 

circuit court’s judgment striking the evidence with regard 

to Woolfolk and dismissing it from this action. We will 

reverse the circuit court’s judgment allowing the 

introduction of evidence relating to the absence of prior 

accidents and remand for a new trial. 

Affirmed in part, 

reversed in part, 

 and remanded. 

JUSTICE COMPTON, dissenting in part. 

 I agree that the trial court correctly granted the 

motion to strike the evidence regarding defendant Woolfolk 

Properties, Inc. I do not agree, however, that the trial 

court erred by allowing evidence regarding the absence of 

similar accidents at the curb area prior to plaintiff's 

fall. 

 This case is controlled by Sykes v. Norfolk & W. Ry. 

Co., 200 Va. 559, 564-65, 106 S.E.2d 746, 751 (1959). The 

majority's argument attempting to distinguish Sykes from 

the present case is unpersuasive. 

Sykes stands for the proposition that when a plaintiff 

presents evidence of a contemplated change by the defendant 

in the conditions at the accident scene, in an effort to 

show notice of a defective condition, evidence of the 

absence of prior accidents at the scene becomes relevant 

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and admissible for the limited purpose of showing the lack 

of notice. This is precisely the situation in the present 

case, and the trial court correctly so ruled. 

 Consequently, I would affirm the judgment below in all 

respects.

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