Scott v. Sears, Roebuck & Co.

789 F.2d 1052 (4th Cir. 1986)

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Nature of the Case

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Facts

P with others went to D to pick up a rug she had ordered. P entered the store through a special parcel post entrance. After picking up the rug, they left by the same entrance. In order to reach their parked car, they inexplicably turned to their left, opposite the direction from which they had approached the parcel post entrance. The parcel post entrance opens upon a sidewalk. The curb is painted yellow and, in the direction P walked, a series of metal grates are set in the concrete. The first and second of those grates end approximately four feet from the yellow curb, and the third ends approximately three feet from the curb. The concrete in the vicinity of the third grate has deteriorated, and the surface was spalling. At the third expansion joint at the third grate, the curb had subsided some three inches below the surface of the walkway and the adjacent curbing. It had been in that condition fifteen years or more. When approached from the parcel post entrance, the subsided curb was more distant than the undisplaced curbing. P walked diagonally across the sidewalk, avoiding the grates, apparently intending to step off the sidewalk at the third expansion joint. It was broad daylight, and P was in good health and possessed of all her faculties. One of her one-inch heels caught in the space left by the displaced curb at the third expansion joint. She fell and broke her leg. P sued D. Under Virginia law, if the defect is open and obvious, an injured pedestrian may not recover unless he can prove that external conditions prevented his seeing the defect or would excuse his failure to see it. P offered the testimony of Dr. Snydor, an expert in 'human factors.' He stated that 'a substantial proportion of people [would] not see the three-inch drop of the curb when approaching the area from the direction of the parcel post entrance.' The undamaged curb would obscure the drop-off, though we may observe that this would not necessarily be true as one approached the area closely. He testified that the human eye has a tendency to 'fill in any slight discontinuity or break,' and that the yellow paint on the curb would trick the eye into seeing the curb 'as the person would typically expect it to be.' He testified that the spalling on the sidewalk would draw and hold the attention of a pedestrian. Dr. Snydor described the conditions as 'an accident waiting to happen . . .' P got the verdict for $125,000. D appealed.