Present: All the Justices 

DORIS AUSTIN, ADMINISTRATRIX 

OF THE ESTATE OF JANE 

PAULINE AUSTIN 

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR. 

v. Record No. 961236 JUNE 6, 1997 

SHONEY'S, INC. 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Everett A. Martin, Jr., Judge 

 In this appeal we consider whether the trial court properly 

sustained the defendant's renewed motion to strike the 

plaintiff's evidence in a slip and fall case after the jury was 

unable to return a verdict. Under well settled principles, we 

view the evidence and the inferences reasonably raised thereby in 

the light most favorable to the plaintiff, whose evidence was 

stricken. Meador v. Lawson, 214 Va. 759, 761, 204 S.E.2d 285, 

287 (1974). 

 Jane Pauline Austin, 70 years old, was dining with her 

family on the morning of October 16, 1993 at a restaurant in 

Norfolk owned by Shoney's, Inc. Austin wore a prosthetic limb on 

her left leg as a result of a below-the-knee amputation and used 

a cane with a four-pronged foot for support when walking. After 

completing the meal, Austin and the others walked down an aisle 

between two rows of booths toward the front of the restaurant to 

exit. 

 As Austin proceeded down the aisle, her cane slid forward on 

the floor and then went into the air, causing her to lose her 

balance and to fall. As a result, she suffered broken bones in 

her left shoulder and left leg. She was treated for these 
injuries at a local hospital and was later transferred to a 

hospital nearer her home in Pittsburgh, Pennsylvania. Austin 

remained hospitalized there and died five months later from 

causes not directly related to her fall. 

 In September 1994, Doris Austin, Austin's daughter-in-law 

and personal representative of her estate, filed the present 

action alleging that Austin's fall was directly and proximately 

caused by Shoney's negligent failure to keep the floor of its 

dining area in a dry and safe condition. After extensive 

pre-trial proceedings, a jury trial was commenced in the trial 

court on November 15, 1995. Testimony concerning various 

contested issues was received over a period of four days of 

trial. However, we will recite only that evidence which is 

relevant to the dispositive issues of this appeal. 

 The floor of the restaurant's dining area consists of red 

quarry tile laid in a brickwork pattern. Shoney's employed two 

night porters to clean the floors of its dining area and other 

areas of the restaurant each night. Larry Horton was the regular 

weekday night porter; James Crawford was the weekend night 

porter. Crawford testified that he regularly used one of two 

commercial cleaning products to clean the restaurant's floors: 

Quarry Tile Cleaner WP-329 and Green Liquid Detergent WP-522, a 

dishwashing detergent. Horton testified that he always used the 

dishwashing detergent. 

 Both Crawford and Horton conceded that they used levels of 

concentration of detergent to water considerably lower than was 

recommended by the manufacturer for cleaning a quarry tile floor. 
 In addition to regular cleaning with diluted detergent, the 

instructions for cleaning quarry tile floors with the quarry tile 

cleaner called for weekly "shock treatments" with full strength 

cleaner. This was not done. Plaintiff's expert witness 

testified that the concentrations of the two cleaning products 

used by the night porters would not effectively remove grease 

from the floors or emulsify grease picked up by the mops. 

 Horton testified that it was his practice to clean the 

kitchen floor first and then the dining area floor, rinsing his 

mop and changing the water in his mop bucket six to eight times a 

night. Crawford testified that it was his practice to clean the 

dining area floor first and then to mop the kitchen floor. Each 

further testified that they used the same mop to clean the dining 

area floor and the kitchen floor. The same mop was used by both 

night porters over several nights until it required replacement. 

 The night before the accident, Crawford was the night 

porter. He testified that, after completing his duties, he 

inspected the floor to confirm that there were "no wet spots or 

anything like that." The restaurant manager testified that when 

she inspected the dining area floor on the morning of the 

accident, "[t]here were no problems. The [floor] was clean." 

 William Meadows, another restaurant patron on the morning of 

the accident, testified that 20 to 30 minutes prior to the 

accident he slipped twice in the same area where Austin fell. 

Meadows examined the floor and found a "slippery residue on the 

floor. . . . It wasn't [any] type of water, it was more [a] 

petroleum residue." Meadows further testified that just before 
Austin fell, he saw her cane "jet[] from her . . . [l]ike it had 

hit something slick." After Austin fell, Meadows reexamined the 

floor where she had fallen and he had slipped. He estimated that 

an area about four feet wide and four to six feet long was slick 

with a petroleum residue. Doris Austin testified that she 

examined the floor after Austin fell and found a "greasy film, 

like a slick greasy film-like substance" on the floor. 

 At the conclusion of the plaintiff's case-in-chief, Shoney's 

made a motion to strike the evidence on the ground that the 

evidence did not establish that there was an unsafe condition 

which was the cause of the accident, or that if such a condition 

existed, it was created by Shoney's or known by Shoney's to 

exist. Although stating that "the evidence of constructive 

notice in this case is awfully thin," the trial court overruled 

the motion. 

 Shoney's then introduced the testimony of various employees 

of the restaurant that they did not observe any grease on the 

floor the morning of the accident or otherwise have reason to 

suspect that the floor was slippery. Shoney's also called a 

representative of the manufacturer of the products used to clean 

the floor as an expert witness. The representative testified 

that the two products in question were appropriate for cleaning 

and removing grease from floors, but that the dishwashing liquid 

"would not be our first recommendation" for cleaning a quarry 

tile floor. Another expert called by Shoney's testified that the 

cleaning methods used by the night porters were "well within any 

set of [industry] guidelines," but conceded on cross-examination 
that the procedures used were "not exactly what I would have 

recommended." 

 At the conclusion of all the evidence, Shoney's renewed its 

motion to strike. The trial court took the matter under 

advisement and permitted the case to go to the jury. After 

several hours the jury informed the trial court that it could not 

reach a verdict. The trial court directed the jury to continue 

to deliberate in an effort to reach a verdict. After several 

more hours of deliberation, the jury was unable to reach a 

verdict and was discharged by the trial court. Shoney's again 

renewed its motion to strike. Following submission of briefs by 

the parties, the trial court granted the motion and entered 

summary judgment for Shoney's. Rule 1:11. We awarded an appeal 

to the plaintiff. 

 The standard under which a trial court should review the 

evidence adduced at trial before granting a motion to strike the 

case at the end of a plaintiff's evidence is well settled under 

prior decisions of this Court. That standard requires the trial 

court to accept as true all the evidence favorable to the 

plaintiff as well as any reasonable inference a jury might draw 

therefrom which would sustain the plaintiff's cause of action. 

The trial court is not to judge the weight and credibility of the 

evidence, and may not reject any inference from the evidence 

favorable to the plaintiff unless it would defy logic and common 

sense. See, e.g., Williams v. Vaughan, 214 Va. 307, 309-10, 199 

S.E.2d 515, 517-18 (1973); Esso Standard Oil Co. v. Williams, 202 

Va. 362, 365-66, 117 S.E.2d 93, 95 (1960); Smith v. Carpenter, 
198 Va. 91, 93, 92 S.E.2d 275, 277 (1956). 

 When a motion to strike the plaintiff's evidence is made or 

renewed at the end of all evidence, the trial court may also 

consider the evidence presented during the defendant's case in 

considering the motion. Kendrick v. Vaz, Inc., 244 Va. 380, 384 

n.*, 421 S.E.2d 447, 450 n.* (1992). Nonetheless, it must still 

view the evidence and all its reasonable inferences in the light 

most favorable to the plaintiff. Id. at 384, 421 S.E.2d at 450; 

see also Estate of Taylor v. Flair Property Associates, 248 Va. 

410, 414, 448 S.E.2d 413, 416 (1994). When the trial court 

considers a renewed motion to strike after the jury has been 

unable to return a verdict, it should sustain the motion only if 

it "is of opinion that it erred in denying the motion" made 

before the case was submitted to the jury. Rule 1:11. Thus, the 

standard for granting a motion to strike in such cases is 

identical to that for granting such motions made during trial. 

 The evidence taken in the light most favorable to the 

plaintiff in this case shows that the area where Austin fell was 

covered with a grease-like film that rendered the surface 

slippery. Shoney's, however, contends that the evidence failed 

to show what caused the grease-like film to be there and, thus, 

that the plaintiff failed to meet her burden of production as to 

that element of her case. Shoney's further contends that its 

motion to strike was properly sustained since the evidence failed 

to show that Shoney's was on notice as to the dangerous condition 

of its floor. We disagree. 

 The evidence favoring the plaintiff shows that Shoney's 
employees failed to follow the recommended procedures for 

cleaning a quarry tile floor. The procedures used in cleaning 

the floor would not have been adequate to remove grease from the 

floor's surface or to emulsify grease picked up by the mops 

elsewhere in the restaurant. The inference that the grease-like 

film was placed on the floor by these inadequate cleaning 

procedures does not defy logic or common sense. The evidence 

showed that the grease-like film covered an area of 16 to 24 

square feet. The logical inference is that it was placed there 

by the movement of the mops over that area of the floor. 

Moreover, nothing in the record suggests that some other foreign 

substance was found in that area that would account for the 

slippery condition of the floor over such a large area. Indeed, 

both the restaurant manager and the waitress responsible for the 

area where the fall occurred testified that there were no spills, 

food or other debris visible on the floor before Austin's fall. 

Thus, for purposes of reviewing a renewed motion to strike, the 

trial court should have accepted as true the inference which 

supported the plaintiff's prima facie case. 

 Similarly, with respect to the issue of notice, plaintiff 

need only show that under some reasonable inference from the 

evidence Shoney's duty to warn against or remedy the dangerous 

condition had been triggered. The plaintiff was not required to 

prove that Shoney's had actual notice of the dangerous condition 

of its floor. If the jury accepted the plaintiff's theory that 

the grease-like film was the result of the improper cleaning 

methods, the hazardous condition was affirmatively created by the 
property owner. Thus, Shoney's is charged with constructive 

knowledge of the risk because it "had a duty to exercise 

reasonable care to avoid the genesis of the danger." Memco 

Stores, Inc. v. Yeatman, 232 Va. 50, 55, 348 S.E.2d 228, 231 

(1986). 

 Finally, Shoney's contends that the plaintiff failed to show 

that Austin's fall was caused by the condition of the floor. In 

doing so, Shoney's relies primarily on the assertion that Austin 

herself never stated that her fall had been caused by the 

slippery substance on the floor. The testimony of Meadows that 

Austin's cane "jetted" out from under her suddenly and without 

warning just before she fell is sufficient to raise the inference 

that Austin's fall was caused by the condition of the floor.*

 For these reasons, we hold that the trial court erred in 

sustaining Shoney's motion to strike the plaintiff's evidence. 

Accordingly, we will reverse the trial court's judgment and 

remand the case for further proceedings consistent with this 

opinion. 

Reversed and remanded. JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO joins, 

dissenting. 

 Only through pure conjecture may one conclude that the 

 

 *Shoney's made frequent references on brief and at oral 

argument to evidence tending to show that Austin's cane "wobbled" 

and that her prosthetic limb was not properly attached at the 

time of her fall. While such evidence may tend to detract from 

the weight given to the plaintiff's theory of the case, the 

standard for reviewing a motion to strike does not permit a 

balancing of the weight of conflicting evidence or the inferences 

drawn therefrom. 
greasy film was on the floor through improper cleaning. 

Certainly that is possible; however, it is just as likely that 

the film collected from other causes, such as an unobserved 

spillage by another customer occurring after the floor had been 

cleaned. 

 The majority says that "nothing in the record suggests that 

some other foreign substance was found in that area that would 

account for the slippery condition of the floor over such a large 

area." This argument loses sight of the fact that in a case such 

as this the plaintiff, not the defendant, has the burden to prove 

negligence; the defendant does not have to "account" for the 

happening of an accident. 

 Furthermore, there is no evidence that defendant had actual 

or constructive notice of the condition. No customer had 

reported "anything wrong with the floor" to defendant's employees 

during the hours immediately preceding the accident. Moreover, 

the record shows that Meadows, who slipped 20-30 minutes before 

the accident, did not tell any of the defendant's employees about 

the slippery condition prior to the fall by plaintiff's decedent. 

 In addition, there was no evidence to show how long the 

slippery condition existed. The proof merely showed that a 

defect was present on the floor of defendant's premises and that 

it caused the decedent's injury; this does not support a finding 

of constructive notice. 

 Therefore, I would affirm the trial court's judgment.