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Ward v. Shoney's Inc.3/5/2003
Submitted: December 3, 2002
Upon appeal from the Superior Court. REVERSED and REMANDED.
This is an appeal from the entry of summary judgment for defendant in a personal injury case. Plaintiff tripped and fell while "cutting the corner" outside a restaurant in an effort to reach a newspaper machine. Defendant maintained a sidewalk for its patrons and also maintained an area of landscaping that was separated from the sidewalk by raised landscape edging. The trial court held that plaintiff's expert could not testify that people tend to cut corners because the expert had no reliable studies, data, or other methodology to support his opinion. We hold that the jury could properly find, based on its own understanding of human nature, that people sometimes cut corners, and that no expert testimony is necessary on that point. The trial court did not question the reliability of the expert's opinion that the landscape edging in this case was a tripping defect. Thus, we hold that plaintiff has established a prima facie case and should be allowed to go to trial.
Factual and Procedural Background
Marian Ward was walking from Shoney's Inn to a newspaper vending machine located outside Shoney's Appleby's restaurant. She attempted to cut the corner and walk across the landscaped area instead of staying on the paved sidewalk, but her foot hit something and she fell down. For present purposes, we accept her contention that she tripped on the raised landscape edging, which is approximately 2 inches higher than the adjacent sidewalk. Ward suffered personal injuries in the fall.
Ward alleges that Shoney's created a dangerous condition by using raised landscape edging when it knew or should have known that people tend to cut corners. She offered the expert opinion of David H. Fleisher, P.E., a civil and structural engineer, to support her claim. Fleisher prepared a two-page report in which he concluded, among other things, that the landscape edging was a tripping hazard and was the cause of Ward's fall. Fleisher also testified twice by deposition. He relied on a 1984 U.S. Department of Transportation study in concluding that the height of the landscape edging constituted a tripping hazard. But Fleisher was unable to provide any studies, reports or other authorities to support his opinion that people tend to cut corners in order to take the most direct route to their destination.
In 2000, the original trial judge denied Shoney's motion for summary judgment. The court held that, to establish that the existence of raised landscape edging constituted negligence, plaintiff would have to provide expert testimony. The court then reviewed Fleisher's deposition and concluded "for pretrial purposes" that: 1) Fleisher is qualified as a professional engineer expert on walkway safety; and 2) although his opinion "did not depend heavily on scientific data," Fleisher demonstrated "some organized familiarity with the factors that determine fault...." The court rejected Shoney's challenge to the admissibility of Fleisher's testimony, but allowed Shoney's to renew its objection at trial. The court also permitted Ward to update Fleisher's report within a specified time.
The original judge retired sometime after denying Shoney's motion for summary judgment. When the case was reassigned, the new trial judge provided the parties with a short list of issues that, in its view, were not adequately addressed in Fleisher's first deposition. After Fleisher was deposed a second time, and asked about the issues raised by the court, Shoney's moved for an order excluding Fleisher's testimony and again moved for summary judgment. The trial court held that Fleisher's opinion is r
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