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Ward v. Shoney's Inc.3/5/2003
elevant, but that it is not reliable because it is not founded on any methodology. Having determined that the expert's testimony should be excluded, the court then granted Shoney's motion for summary judgment because, as the original judge had ruled, competent expert testimony is required to establish a prima facie case of negligence. This is Ward's appeal from that decision.
Discussion
It is settled Delaware law that "a property owner owes a business invitee a duty to provide safe ingress and egress." "The standard of care ... is to see that such portions of his premises as would naturally and ordinarily be used by his customers are kept in a reasonably safe condition for their use." The elements necessary to establish liability are set forth in the Restatement of Torts:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Applying these principles to the facts of this case, Ward must establish that the landscape edging constituted a dangerous condition that caused her to fall, and that Shoney's should have known: (i) that the edging was a tripping hazard; and (ii) that patrons would attempt to cut the corner without realizing it was a hazard.
The original trial judge determined that Ward could not establish all of the elements of her claim without expert testimony because it would be "difficult for a lay factfinder to draw the inference that Shoney's was negligent from the fact that it used raised landscape edging, a very common practice." Thus, the viability of Ward's claim turned on the admissibility of Fleisher's expert testimony. Rule 702 of the Delaware Rules of Evidence provides standards for the admission of expert evidence:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
In M.G. Bancorporation v. Le Beau this Court adopted the United States Supreme Court's holdings in Daubert v. Merrell Dow Pharmaceuticals, Inc. and Kumho Tire Co., Ltd. v. Carmichael as the correct interpretations of Delaware's Rule 702, which is identical to the federal rule. Daubert held that the trial judge is a "gatekeeper," who must determine whether the proffered expert testimony is both relevant and reliable. The Daubert court identified several factors, such as testing, peer review, and publication, that contribute to a finding of reliability.
In Kumho, the Supreme Court held that Daubert applies to all expert evidence, not just scientific evidence. The Supreme Court emphasized the need for flexibility in assessing reliability, and noted that "Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case." It pointed out that, in "ordinary cases where the reliability of an expert's methods is properly taken for granted," a proceeding to de
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