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Ward v. Shoney's Inc.3/5/2003
termine reliability is unnecessary. The objective of the gatekeeping requirement is simply "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."
Fleisher testified that, in designing walkways, civil engineers take into account the manner in which pedestrians will use those walkways. Since people tend to cut corners, Fleisher opined that the Shoney's walkway should have been designed without tripping hazards for those who cut the corner. Fleisher supported his "opinion" that people tend to cut corners with his own experience as a civil engineer and with his observation of the area where Ward fell. He supported his opinion that the edging constituted a tripping defect with a study of pedestrian falling accidents.
Expert opinions are appropriate where they will assist the jury in understanding the facts or the evidence. But the fact that people tend to cut corners is a matter of common knowledge and experience. More than 70 years ago, in a frequently cited passage, the Supreme Court of Michigan noted:
he city cannot lawfully, by the mere provision of suitable passageways for pedestrians, maintain dangerous and unreasonable obstructions or conditions in the street at places where people may reasonably be expected to go.... It must take into account the natural inclination of children to run about in play and the perverse insistence of adults to cut corners and cross streets and grass plats instead of following precisely the beaten or provided path.
The Illinois Supreme Court, quoting a California decision, likewise noted the municipality's duty to keep parkways free from obstructions that would injure a "traveler... yielding to the impulse of the average person to cut across a corner in a hurry..."
These decisions confirm the obvious - that we all know people cut corners. We may not know how frequently people cut corners, or what personality types are most likely to cut corners, or how close to the corners people tend to make the cut. Any of those additional facts might require expert testimony. The basic fact that people cut corners, however, does not. Thus, Fleisher does not have to support his premise that people cut corners as if it were an expert opinion on human behavior. Properly viewed, Fleisher's expert opinion relates only to the fact that designers should take into account pedestrian walking habits; and that, given people's tendency to cut corners, the landscape edging should have been low enough to avoid being a tripping hazard for those who took the short cut.
Conclusion
Based on the foregoing, the judgment of the Superior Court is reversed and this matter is remanded for further action in accordance with this opinion. Juris-diction is not retained.
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