Kaney F. O’neill v. Windshire-Copeland Associates, Lp

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 KANEY F. O’NEILL,
Plaintiff-Appellant,
v.
WINDSHIRE-COPELAND ASSOCIATES,
LP; ROBERT COPELAND; HERCULES
REAL ESTATE SERVICES,
INCORPORATED, No. 02-1271 Defendants-Appellees,
and
AUTUMN LAKES ASSOCIATES, LIMITED
PARTNERSHIP; SC DIAMOND
CORPORATION; JOHN DOES 1 THROUGH
20,
Defendants. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Henry Coke Morgan, Jr., District Judge.
(CA-01-56-4)
Argued: April 1, 2003
Decided: June 16, 2004
Before MICHAEL and KING, Circuit Judges, and
Terry L. WOOTEN, United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by published per curiam opinion.

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COUNSEL
ARGUED: Earle Duncan Getchell, Jr., MCGUIREWOODS, L.L.P.,
Richmond, Virginia, for Appellant. Steven Walter Bancroft,
TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUDKINS,
P.C., Fairfax, Virginia, for Appellees. ON BRIEF: Amy M. Burden,
MCGUIREWOODS, L.L.P., Richmond, Virginia; Irwin M. Zalkin,
Michael Zimmer, ZALKIN & ZIMMER, L.L.P., San Diego, Califor-
nia, for Appellant. Melissa H. Katz, Michael J. Carita, TRICHILO,
BANCROFT, MCGAVIN, HORVATH & JUDKINS, P.C., Fairfax,
Virginia; Frank K. Friedman, WOODS, ROGERS & HAZLE-
GROVE, P.L.C., Roanoke, Virginia, for Appellees.
OPINION
PER CURIAM:
Based on the jury’s finding of contributory negligence, the district
court entered judgment against Kaney F. O’Neill in her action to
recover for debilitating injuries suffered in a fall at an apartment com-
plex. O’Neill appeals, arguing first that the district court erred in sub-
mitting the contributory negligence issue to the jury. She also argues
that the court erred in excluding the testimony of an expert in biome-
chanics and in admitting a toxicology report of her blood alcohol con-
tent. The Supreme Court of Virginia’s answer to our certified
question on the contributory negligence issue, see O’Neill v.
Windshire-Copeland Associates, L.P., 595 S.E.2d 281 (Va. 2004),
establishes that the district court properly submitted that issue to the
jury. In addition, the district court did not abuse its discretion in mak-
ing the challenged evidentiary rulings. We therefore affirm.
I.
Kaney O’Neill was rendered a quadriplegic on September 15,
1999, when she fell backward over a second-story balcony railing at
an apartment complex in Newport News, Virginia. The apartment
complex was owned by Windshire-Copeland Associates, L.P., whose
general partner was Robert Copeland; Hercules Real Estate Services,
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Inc. managed the complex (these three parties are referred to collec-
tively as "Windshire"). Invoking diversity jurisdiction, see 28 U.S.C.
§ 1332, O’Neill sued Windshire in the U.S. District Court for the
Eastern District of Virginia to recover for her injuries. She alleged
that Windshire was negligent because the thirty-two-inch balcony
railing was sixteen inches lower than the Newport News Building
Code required at the time the apartment complex was built. The case
was tried before a jury.
The evidence at trial included the following. O’Neill arrived at
Mike Seehusen’s apartment in the Windshire complex around 4:30
p.m. on September 15, 1999. Seehusen was O’Neill’s former boy-
friend, but the two were still on good terms. A hurricane was on the
way, so they decided to invite two of their friends to Seehusen’s
apartment for the evening "to hang out, have dinner, and enjoy the
weather." J.A. 444. Seehusen’s second-floor apartment had a balcony.
The balcony was fenced in with a metal grating that was topped with
a railing thirty-two inches high. Although it was windy and rainy that
evening, O’Neill went out on the balcony several times. On those
occasions, she would lean backward against the railing to catch the
rain on her face. Shortly before 9:00 p.m., O’Neill went onto the bal-
cony the final time. She leaned against the railing with her buttocks
resting on top and "was tilting back a little bit." J.A. 453. According
to O’Neill, she was deep in thought and was startled by a sharp slap
of rain in her face. When the rain hit her face, she "fl[u]ng [her]
head," lost her balance, and fell backward over the railing. J.A. 555.
She landed on the concrete patio fifteen to twenty feet below. As a
result of her fall, O’Neill is a quadriplegic.
The emergency medical technician who attended O’Neill right after
the accident testified that O’Neill was awake, oriented, and able to
make clear and appropriate responses to his questions. O’Neill’s
emergency room records at the Riverside Medical Center reveal that
her speech was clear and her vision normal. O’Neill told hospital per-
sonnel at the emergency room that she had consumed alcohol that
evening. Blood for a toxicology screen was then drawn by a hospital
staffer who used an alcohol swab. The lab report indicated that
O’Neill’s blood alcohol content was .18.
At the close of the evidence, the district court granted in part
O’Neill’s motion for judgment as a matter of law, concluding that
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Windshire was negligent per se because its low balcony guardrail vio-
lated the height requirement of the Newport News Building Code.
The court determined, however, that Windshire’s negligence did not
bar the defense of contributory negligence, and the question of con-
tributory negligence was submitted to the jury. The jury found that
O’Neill was contributorily negligent, and on the basis of that finding
the district court entered judgment for Windshire.
O’Neill appealed the judgment to this court, arguing that the dis-
trict court erred in submitting the issue of contributory negligence to
the jury. Specifically, O’Neill argued that under the Restatement
(Second) of Torts § 483 the defense of contributory negligence was
not available here because it would defeat the purpose of the railing
height requirement in the building code.1 O’Neill also appealed two
evidentiary rulings made by the district court.
We were uncertain whether Virginia law would treat O’Neill’s
contributory negligence as a complete defense in this case. We there-
fore certified the following question to the Supreme Court of Virginia
pursuant to its Rule 5:42:
If the defendant-owner of an apartment building is negligent
per se because the protective railing on its apartment bal-
cony does not comply with the height requirements of a
municipal building code, and if that negligence is a proxi-
mate cause of the plaintiff’s fall from the balcony and her
resulting injuries, is the plaintiff’s contributory negligence
available to the defendant as a complete defense?
The Supreme Court of Virginia answered our question in the affirma-
1The Restatement (Second) of Torts § 483 (1965) provides:
The plaintiff’s contributory negligence bars [her] recovery for
the negligence of the defendant consisting of the violation of a
statute, unless the effect of the statute is to place the entire
responsibility for such harm as has occurred upon the defendant.
Comment (c) to § 483 explains that a statute places the entire responsibil-
ity for harm on the defendant "where it is enacted in order to protect a
certain class of persons against their own inability to protect themselves."
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tive, holding that "§ 483 of the Restatement (Second) has not been
adopted in [Virginia] and . . . the defense of contributory negligence
is available when the defendant’s violation of a municipal building
code is negligence per se and a proximate cause of the plaintiff’s inju-
ries." O’Neill v. Windshire-Copeland Associates, L.P., 595 S.E.2d
281, 284 (Va. 2004).
The Supreme Court of Virginia "recognize[d] that there are circum-
stances in which a legislative body may determine that, because of the
nature of the regulation or the class of persons the regulation was
intended to protect, the defendant should bear the entire responsibility
for harm that the failure to comply with the regulation causes." Id. at
283. However, in this case, the court held that "nothing in the New-
port News Building Code indicates that the purpose of the code was
to place the entire responsibility for injuries stemming from a code
violation on the defendant building owner. The code protects no spe-
cific class; it is the public in general that benefits from its provisions."
Id. at 284. Therefore, the court held that contributory negligence pro-
vided Windshire a complete defense to O’Neill’s personal injury
claim.
In view of this answer to our certified question, we affirm the dis-
trict court’s decision to submit the issue of O’Neill’s contributory
negligence to the jury.
II.
O’Neill also raises two evidentiary issues. First, she argues that the
district court erred in excluding certain expert testimony about the
cause of her fall. Second, O’Neill argues that the court erroneously
admitted the results of a hospital-administered toxicology test used to
measure her blood alcohol content. We review these evidentiary rul-
ings for abuse of discretion. General Elec. Co. v. Joiner, 522 U.S.
136, 141-43 (1997).
A.
O’Neill claims that the district court erroneously excluded the
expert testimony of Dr. David A. Thompson, a professor of biome-
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chanics, who would have testified that a gust of wind caused
O’Neill’s fall. Thompson authored a report that measured the amount
of force various wind-gust levels would place on O’Neill’s upper
torso. The report also described where O’Neill’s center of gravity was
in relation to the thirty-two-inch railing. Although Thompson con-
ceded in his report that "what triggered [O’Neill’s] fall is not clear,"
J.A. 205, he concluded that "it does not appear likely to me that some-
one of Ms. O’Neill’s athletic skill and ability would have accidentally
leaned over too far backwards and lost her balance and fallen. Rather,
it seems much more likely that an unexpected gust of wind triggered
her fall to the ground below causing her tragic injury." J.A. 209.
In ruling on Windshire’s motion to exclude Dr. Thompson’s testi-
mony, the district court first observed that "there’s certain things Dr.
Thompson said, such as the plaintiff’s . . . center of gravity may be
higher than thirty-two inches, for example, and there may be other
things in there that could be admissible." J.A. 387. On the critical
issue, however, the court held that Dr. Thompson’s statements "as to
how and why the accident happened [are], in the opinion of the court,
not admissible under the applicable rules for expert testimony." J.A.
387-88.
O’Neill argues that the district court should have permitted Dr.
Thompson to offer his opinion as to what caused O’Neill’s fall. Under
Federal Rule of Evidence 702 an "expert opinion must be based on
scientific, technical, or other specialized knowledge and not on belief
or speculation, and inferences must be derived using scientific or
other valid methods." Cooper v. Smith & Nephew, Inc., 259 F.3d 194,
200 (4th Cir. 2001) (emphasis added). As indicated above, Dr.
Thompson concluded that O’Neill’s fall was "much more likely" to
have been caused by the wind because "it does not appear likely . . .
that someone of Ms. O’Neill’s athletic skill and ability would have
accidentally leaned over too far backwards and lost her balance." J.A.
209. This opinion appears to be based more on supposition than sci-
ence, especially since Dr. Thompson admitted that the cause of
O’Neill’s fall was "not clear." Accordingly, the district court did not
abuse its discretion in excluding Dr. Thompson’s opinion on this issue.2
2Not everything in Dr. Thompson’s report was inadmissible. As the
district court noted, he could have testified about where O’Neill’s center
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B.
O’Neill also contends that the district court improperly admitted
the results of a toxicology test taken while O’Neill was being treated
at the Riverside Medical Center (Riverside). The test indicated that
O’Neill had a blood alcohol content level of .18 an hour after she fell
from the balcony. O’Neill argues that the test result was inherently
unreliable for two reasons. First, the hospital used an alcohol swab to
sterilize O’Neill’s arm before taking the blood sample. Second, the
blood test result was printed on a form that said "these results should
not be used for any legal purpose." J.A. 224.
O’Neill argues that her toxicology test result was unreliable
because her arm was wiped with an isopropyl alcohol swab before her
blood was drawn. According to O’Neill, this procedure may have
resulted in an inflated blood alcohol measurement. The evidence pro-
vides no support for O’Neill’s argument. The director of Riverside’s
emergency room testified that the hospital’s procedures for measuring
blood alcohol content, which normally includes the use of an alcohol
wipe, are reliable and trustworthy. The director also said that emer-
gency room physicians, anesthesiologists, and surgeons rely upon
these toxicology reports when making treatment decisions. The Direc-
tor of the Clinical and Forensic Toxicology Laboratories at the Medi-
cal College of Virginia Hospital testified that the testing procedures
used in this case were reliable and that the use of an isopropyl swab
or cleanser would have no effect on a blood alcohol reading. He also
detailed the high accreditation standards that Riverside’s laboratories
are required to meet in order to receive state funding. Part of this
accreditation process requires the hospital to demonstrate that the test-
ing procedures used in its laboratories are proficient. O’Neill did not
call a single witness who questioned the reliability of Riverside’s pro-
cedures. In fact, O’Neill’s own toxicologist expert admitted that he
had no reason to believe that the blood alcohol reading of .18 was
inaccurate. Under these circumstances, we hold that Riverside’s medi-
of gravity was in relation to the thirty-two-inch railing. Dr. Thompson
could also have testified as to the amount of force that specific wind
velocities would exert on a human torso. That would have been expert
testimony based on "scientific, technical, or other specialized knowl-
edge." Fed. R. Evid. 702.
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cal procedures were sufficiently reliable to justify the admission of
O’Neill’s blood alcohol test results.
O’Neill also argues that the blood test result was "unreliable,
incompetent, and irrelevant," J.A. 221, because it was marked with
the words "these results should not be used for any legal purpose,"
J.A. 224. Again, all of the evidence indicated that the procedures used
in arriving at this blood test result were reliable and regularly relied
upon by medical professionals to make treatment decisions. O’Neill
offered no evidence to the contrary. We do not believe the results of
an otherwise reliable medical procedure are rendered inadmissible
simply because a hospital says that the results should not be used in
legal proceedings. The law and the rules of evidence determine what
is admissible in a court proceeding. Accordingly, the district court did
not err in admitting the results of the toxicology test.
The judgment is affirmed.
AFFIRMED
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