Present: Carrico, C.J., Compton, Stephenson,1

 Hassell, Keenan, and 

Koontz, JJ., and Poff, Senior Justice 

PEGGY S. O'BRIEN 

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR. 

v. Record No. 962461 September 12, 1997 

EVERFAST, INC., ETC. 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Theodore J. Markow, Judge 

 The principal issue in this appeal is whether there was 

sufficient evidence of negligence by the defendant to support a 

jury verdict in favor of the plaintiff. We also consider whether 

the verdict should be set aside on the alternative ground that the 

plaintiff was contributorially negligent by exposing herself to a 

dangerous condition that was open and obvious. 

 On February 8, 1992, Peggy Sharon O'Brien was shopping at a 

Calico Corners fabric store operated by Everfast, Inc., in the 

City of Richmond. Fabric at the store was displayed on racks in 

bolts rolled around cardboard tubing approximately 60 inches in 

length. A bolt of fabric might weigh as much as 50 pounds when 

full. 

 When customers selected a fabric, the bolt would be removed 

from the rack and taken to a cutting table where the appropriate 

length of fabric could be measured and cut from the bolt. 

Everfast instructed its salespersons to replace bolts on the racks 

when fabric was not being measured and cut. Although the tables 

contained depressions that could hold a bolt of fabric in place, 

 

 1Justice Stephenson participated in the hearing and decision 

of this case prior to the effective date of his retirement on July 

1, 1997. 

 
these were to be used only to hold bolts from which fabric was 

being measured and cut. 

 Anne Coughenour, another customer at the store, selected four 

bolts of fabric and, with the assistance of friends or of an 

Everfast employee, removed the bolts from their racks and brought 

them to a cutting table. The employee placed the first bolt on 

the cutting table. The other three bolts were standing on end 

against an adjacent table. A handwritten statement by the 

plaintiff concerning the accident stated that the bolts had been 

leaned against the table by "[t]he salesperson or customer," and 

the word customer had been circled. Coughenour could not recall 

who carried the bolts of fabric to the table. 

 While O'Brien was walking near the table against which the 

bolts were leaning, one of the three bolts slid from the table, 

striking O'Brien's right heel or foot. As a result of the injury, 

O'Brien incurred over $6,300 in medical expenses. 

 On February 8, 1996, O'Brien filed a motion for judgment 

against Everfast seeking $300,000 in damages. In its grounds of 

defense, Everfast asserted that O'Brien's injury resulted solely 

from her own negligence or that she was contributorially 

negligent. 

 A jury trial was held in the Circuit Court of the City of 

Richmond on August 27, 1996. O'Brien presented evidence through 

her own testimony and that of Coughenour, as well as that of two 

Everfast employees called as adverse witnesses. At the conclusion 

of O'Brien's evidence, Everfast declined to put on a defense, and 

moved to strike the evidence and for summary judgment in its favor 
on the ground that the evidence failed to show that it had 

breached any duty owed to an invitee on its premises. The trial 

court took the motion under advisement and permitted the case to 

be submitted to the jury, which returned a verdict in favor of 

O'Brien, awarding her $100,000 in damages. 

 Everfast renewed its motion to strike and moved to set aside 

the jury's verdict, again asserting that the evidence failed to 

show that Everfast had breached a duty of care. Expanding on the 

argument made at the conclusion of the evidence, Everfast asserted 

that O'Brien had failed to show that the employees had actual 

knowledge of the dangerous condition created by the bolts being 

leaned against the table. Absent sufficient evidence to draw an 

inference of such knowledge, Everfast maintained that the jury's 

verdict was at best speculative. 

 By final order dated September 6, 1996, the trial court 

sustained Everfast's motion to set aside the verdict and entered 

judgment for Everfast. Responding to a motion for reconsideration 

and clarification filed by O'Brien, the trial court declined to 

revisit its ruling and provided the following basis in support of 

its decision: 

 . . . the court's decision was made immediately after 

trial and before its receipt of the defendant's post 

verdict motions. The decision was based upon the record 

as it existed at the adjournment of trial. . . . 

 There is no[] evidence of who placed the bolt of 

cloth in a position to fall and strike the plaintiff, of 

the instrumentality which caused it to fall, how long 

the condition existed, that an employee had sufficient 

opportunity to observe, appreciate and correct the 

condition. There is no evidence upon which negligence 

of the defendant could have been determined without 

guesswork or speculation. Further, the condition was 

open and obvious. 
Discussion

 We review the trial court's decision sustaining the motion to 

strike the evidence and set aside the jury's verdict in accordance 

with well-settled principles. 

 When the sufficiency of a plaintiff's evidence is 

challenged by a motion to strike, the trial court should 

resolve any reasonable doubt as to the sufficiency of 

the evidence in plaintiff's favor and should grant the 

motion only when "it is conclusively apparent that 

plaintiff has proven no cause of action against 

defendant," or when "it plainly appears that the trial 

court would be compelled to set aside any verdict found 

for the plaintiff as being without evidence to support 

it." 

Williams v. Vaughan, 214 Va. 307, 309, 199 S.E.2d 515, 517 (1973) 

(citations omitted). "A jury issue exists '[i]f there is conflict 

of the testimony on a material point, or if reasonably fair-minded 

[persons] may differ as to the conclusions of fact to be drawn 

from the evidence, or if the conclusion is dependent on the weight 

to be given the testimony.'" State Farm Mutual Automobile 

Insurance Co. v. Davies, 226 Va. 310, 319, 310 S.E.2d 167, 171 

(1983)(quoting Hoover v. J.P. Neff & Son, Inc., 183 Va. 56, 62, 31 

S.E.2d 265, 268 (1944)). 

 "Where the trial court has set aside a jury verdict, that 

verdict is not entitled to the same weight as a verdict which has 

been approved by the trial court." Kendrick v. Vaz, Inc., 244 Va. 

380, 384, 421 S.E.2d 447, 449 (1992). Nevertheless, this Court 

will accord the party who received the verdict the benefit of all 

substantial conflict in the evidence, as well as all reasonable 

inferences that could be drawn therefrom. Fobbs v. Webb Building 

Ltd. Partnership, 232 Va. 227, 230, 349 S.E.2d 355, 357 (1986). 
However, if a jury necessarily has reached its conclusions based 

on speculation and conjecture, the plaintiff's case fails. Id.

 Here, the trial court's decision to set aside the verdict 

rests principally on its finding that there was insufficient 

evidence from which the jury could infer, without resorting to 

speculation or conjecture, that Everfast had actual knowledge of 

the dangerous condition created by the bolts having been leaned 

against the cutting table. We disagree with that decision. 

 Coughenour and the salesperson both testified that the 

salesperson was aware that Coughenour had selected more than one 

bolt of fabric. The salesperson further testified that she was 

aware of Everfast's policy that she was not to lean bolts against 

the cutting tables, that she was to have only one bolt of fabric 

at a cutting table, and that she was to return the bolt to its 

rack after the fabric was cut from it. This policy was "[f]or 

safety and to keep the store neat." Coughenour testified that 

while the salesperson was cutting fabric from the first bolt, the 

remaining three were leaning against the adjoining cutting table 

in plain view. The report of the accident states that the bolt of 

fabric which fell and injured O'Brien was leaned against the 

cutting table either by "[t]he salesperson or customer." These 

facts were sufficient to permit the jury to find, without 

resorting to speculation or conjecture, that the salesperson knew 

of the potential danger. 

 The absence of evidence as to what caused the bolt of fabric 

to fall would not preclude the jury from finding that O'Brien's 

injury resulted from Everfast's negligence. This issue is 
substantially identical to one raised in Holcombe v. NationsBanc 

Financial Services Corporation, 248 Va. 445, 450 S.E.2d 158 

(1994). In Holcombe, the defendant contended that its action of 

stacking movable wall partitions in such a way that they might 

fall and cause an injury was insufficient to subject it to 

liability where the jury would be left to speculate as to what 

actually caused the partitions to fall. We held that the 

foreseeability of the danger, and not the manner of its actual 

occurrence, was the relevant question for the jury to consider in 

determining whether the defendant had been negligent. Id. at 448, 

450 S.E.2d at 160. 

 The rationale applied in Holcombe is equally applicable to 

the circumstances presented in the record here. Everfast was 

clearly aware of the danger presented by having the bolts off the 

racks and required its employees to take charge of the bolts when 

they were removed from the racks for measuring and cutting. As in 

Holcombe, these facts were sufficient to permit the jury to 

determine whether the defendant was negligent in permitting the 

dangerous condition to exist. 

 Although not relied upon by Everfast in arguing its motion to 

strike, it may be inferred from the trial court's finding that the 

danger was open and obvious, that contributory negligence was 

relied upon by the trial court in reaching its decision to set 

aside the verdict. A business invitee has the duty to be aware of 

open and obvious dangers. Tazewell Supply Company v. Turner, 213 

Va. 93, 95, 189 S.E.2d 347, 349 (1972). Whether a danger is open 

and obvious is usually a jury question. Shiflett v. M. 
Timberlake, Inc., 205 Va. 406, 411, 137 S.E.2d 908, 912 (1964). 

Several heavy bolts of fabric leaning against a table is not so 

remarkable or patent a danger that an invitee unfamiliar with the 

nature of the danger posed thereby would naturally seek to avoid 

it. Absent clear knowledge by O'Brien of the danger this 

condition presented, the jury properly could have found that she 

was privileged to browse the display floor without guarding 

herself from being struck by a falling bolt of fabric. See Clark 

v. Chapman, 238 Va. 655, 667-68, 385 S.E.2d 885, 892-93 (1989). 

 Since we conclude that the factual issues were properly 

submitted to the jury, we will reverse the judgment of the trial 

court, reinstate the jury's verdict, and enter final judgment for 

the plaintiff on this verdict.2

Reversed and final judgment. 

 

 2O'Brien also assigned error to the trial court's exclusion of 

testimony that similar accidents had occurred in other stores 

owned by Everfast. However, the resolution of the principal 

issues renders this issue moot.