Slip, Trip & Fall Expert Witness Testimony Affirmed By Ninth Circuit

Appeals court affirms opinion of the district court excluding the expert opinion hired by plaintiffs.

Facts:  This case (Alsip v. Wal- Mart Stores E., LP – United States Court of Appeals for the Eleventh Circuit – August 19th, 2016) is an appeal from a decision in the United States District Court for the Southern District of Alabama which excluded the plaintiff’s Slip, Trip & Fall Expert Witness from testifying and granted summary judgment in favor of the defendant.

On August 26th, 2014, Emma Alsip (plaintiff) filed suit in United States District Court against Wal-Mart (defendant) maintaining that defendant either negligently or wantonly maintained a crosswalk in that it was not slip resistant.  In April 2013, on a rainy day, plaintiff slipped on a painted yellow crosswalk, slipped, and fractured her hip.

In order to prove her case, the plaintiff hired Russell Kendzior, an expert in the slip-and-fall prevention industry.  Mr. Kendzior reviewed deposition testimony, the surveillance video of the accident, pictures of the parking lot and crosswalk, and industry standards and guidelines.  Mr. Kendzior opined that the striped in the crosswalk were not painted properly and, thus, created an unreasonably dangerous condition.  He identified three defects to support his conclusion: 1) The apex layer of paint in the crosswalk did not contain enough aggregate; 2) The paint was improperly applied; 3) The underlying paint should have been removed by shot blasting.

The defendant filed a motion to exclude the testimony of Mr. Kendzior.  First, they found issue with parts of Kendzior’s testimony in which he opines that one should test the slip resistance of the surface to find out whether the area is a high traction area.  The defendant stated that Kendzior did not perform tests on the stripes in the crosswalk and never visited the area. In addition, they state that they conducted tests in 2015 and found that the crosswalk stripes were indeed slip resistant.  In addition, they argue that Mr. Kendzior’s opinion regarding aggregate was inconsequential and unreliable.  The defendant states that he did not offer and scientific evidence for determining that aggregate was present.

The plaintiff responded that Kendzior’s testimony was backed up by years of experience, standards in the industry, and a review of the video and photographic evidence.  They argued that a belated test of the of surface would not reflect the slip resistance at the time of the accident.  Also, the plaintiff filed an affidavit by Kendzior which explained the flaws in the tests performed by the defendant.

Discussion: The district court rules for the defendant, opining that Kendzior admitted that he could not determine whether the stripes in the crosswalk were a high-traction area at the time of the accident.  Also, the court opined that Kendzior’s opinion that the stripes were not slip resistant was not reliable.

The plaintiffs appealed the decision and the court of appeals affirmed the opinion of the district court.  The court stated that the district court did not err when it decided that Kendzior’s opinion that since the yellow crosswalk lines did not contain aggregate, they were not slip resistant.  The court concluded that his opinion was based on flawed reasoning and speculation.

Conclusion:  The court affirmed the opinion of the district court