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Mark v. Hutchinson2/1/1995
HASELTON, Judge.
Plaintiffs John and Jean Mark appeal from an adverse judgment in a "slip and fall" personal injury action. They assert that the trial court erred in excluding testimony from an expert witness, striking certain allegations of negligence for failure of proof, and giving an improper jury instruction. We affirm.
Defendant Hutchinson owns and operates a service station and related convenience store near Ashland. In November 1988, the Marks were returning to California after spending the Thanksgiving holiday in Oregon with one of their children. Anticipating snow in the Siskyou Mountains, they stopped at defendant's service station to purchase gas and tire chains. After filling the car with gas, John Mark walked from the pump area toward the convenience store where customers paid for their gas. As he stepped up from the pump area onto the walkway in front of the store, Mark slipped and fell breaking his right hip. When Mark fell, his arm came into contact with a "black and oily" substance, which adhered and later could be removed only with alcohol. As Mark lay on the ground, he could see blue-green rings on a puddle of water next to his face.
Plaintiffs sued, asserting claims for negligence and loss of consortium. The gravamen of those claims was that defendant knew, or reasonably should have known, of the unsafe conditions on his premises but failed to either warn of, or correct, those conditions. The jury returned a verdict for defendant.
Plaintiffs first assign error to the trial court's limitation of testimony by their expert witness, Zbinden. Zbinden, an engineer, testified that the walkway Mark had stepped onto had a lower "coefficient of friction"--was slicker--than the concrete area around the gas pumps from which he stepped. He also testified that people do not anticipate walking from a surface on which they have traction to one on which they do not, and that defendant could easily have applied substances to the walkway that would have made it less slick. The following then transpired:
"[BY PLAINTIFFS' COUNSEL] Based upon these tests and your observations, do you believe that the premises
located there, assuming that this was a wet, stormy day--and I'm going to ask you to make a couple of other assumptions, too, that there was either some kind of slippery or oily--I think the word may be slimy material in front of the door, the existence of the premises as they are now--can you express an opinion as to whether those premises constituted an unusually or unreasonably dangerous condition under all of those circumstances?
"[DEFENSE COUNSEL]: Your Honor, I do object. I think that goes beyond the area of appropriate expert testimony in this case, because that kind of opinion simply can't be helpful to the jury. He has given us the parameters and the jury can draw its own Conclusions.
"THE COURT: Doesn't this question assume the very thing this jury is saying, you know, what was there on that day at the instant this gentleman slipped, and this witness wasn't there and admits he wasn't there?
"[PLAINTIFFS' COUNSEL]: Of course he wasn't, except that I don't think that all of us have the expertise that this witness does in comparison of surfaces and the relative co-efficients of friction, and I have not understood that an expert addressing an opinion upon the ultimate issue is prohibited.
"THE COURT: That's not the objection, as I see it. The objection is sustained."
Thereafter, plaintiffs' counsel made the following offer of proof:
"Q. I had asked you a question, Mr. Zbinden, which you may or may not remember about whether the totali
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