Norfleet v. Ukrops Supermarket, Inc.

This case arises from a slip and fall incident involving plaintiff stepping into a pothole in the shopping center parking lot. After the jury returned its verdict in plaintiff’s favor for $2,000.00, plaintiff asked for and was granted leave to file a memorandum of law in support of her motion to set aside the verdict and award a new trial on damages only for reasons of inadequacy. Defendants also at that time renewed their motions to strike plaintiff’s evidence on the ground plaintiff was contributorily negligent as a matter of law.

After review I am of the opinion that the special damages plaintiff presented in this case consisting of medical bills ($4,391.48) and lost wages ($3,953.00) are not a fixed part of the verdict. Bradner v. Mitchell, 234 Va. 483 (1987). They were partly controverted and otherwise partly doubtful as caused by the defendant’s negligence.

But having so found, the Court otherwise concludes that the defendants shall have judgment because the pothole was open and obvious and thus plaintiff was guilty of contributory negligence as a matter of law. The pothole measured twelve inches wide and approximately two inches to three inches deep and was clearly visible had plaintiff *458been looking where she was going. Plaintiff talked with her companion as she left the store after having gone by that way on her way in. The plaintiff is charged with seeing what she could have seen had she looked where she was going. Rocky Mountain Shopping Center & Assocs. v. Steagall, 235 Va. 636 (1988). Not seeing the pothole because of traffic in the parking lot is not a legal basis for inattention. Traffic in the area of a parking lot is not unusual, unexpected, or extraordinary to distract attention, West v. City of Portsmouth, 217 Va. 734, 739 (1977).

Accordingly, plaintiff’s motion is denied and defendants’ motions are granted.