Opinion
C.A. No. 00C-12-011 JTV
Submitted: October 11, 2002
Decided: October 21, 2002
Upon Consideration of Defendant's Motion For Summary Judgment
DENIED
Scott E. Chambers, Esq., Dover, Delaware. Attorney for Plaintiffs.
David L. Baumberger, Esq., Dover, Delaware. Attorney for Defendant.
ORDER
Upon consideration of the defendant's motion for summary judgment, the plaintiffs' opposition thereto, and the record of the case, it appears that:
1. Garry George took his daughter, Jessica, age five, into the men's restroom at a McDonald's restaurant. When they exited, he pulled open the restroom door, scooted her out beside him, let the door go and took her by the left hand. At that point a woman was entering the ladies' restroom, which was directly across a narrow hall. Mr. George paused momentarily for the woman to pass and did not notice that his daughter had placed a finger of her right hand in the hinged end of the men's door. As the door, which was equipped with a hydraulic door closer, completed its closing motion, it pinched the daughter's finger, causing severe injury.
2. Mr. George filed suit on behalf of his daughter and individually against the owner of the McDonald's alleging that the hydraulic door closer was not properly installed or maintained. Specifically, he alleges that under industry standards the door should have closed more slowly. He claims that the owner was negligent in not adjusting the hydraulic door closer so that the speed with which it closed complied with such standards.
3. The plaintiffs have retained a mechanical engineer as an expert witness. The engineer, Wilson G. Dobson, watched a videotape of the door opening and closing and, using a stopwatch, determined that the door's closing time varied from a low of 1.05 seconds to a high of 2.32 seconds. In his deposition he states that manufacturer's literature concerning the installation and adjustment of hydraulic door closers indicates that a closer should be adjusted so that it takes a minimum of three seconds for the door to close from a 70 degrees position, that is, not quite fully opened. The literature of one manufacturer has a closing speed control instruction which indicates that the closer should be adjusted for a closing speed of four to seven seconds from a 90 degrees, or fully open, position. The instruction indicates that use of doors by handicapped, elderly, or small children may require greater closing time. The American National Standards Institute has a standard for handicapped accessibility doors which indicates that a door should take at least five seconds to close from a 90 degrees open position to 12 degrees open. Mr. Wilson concludes that the door in the McDonald's store did not comply with these standards. He further states that one of the reasons for the controlled closing speed is to reduce the risk of injury to persons going in or out.
4. The defendant has moved for summary judgment. He contends that the opinions stated by Mr. Wilson are invalid, unreliable, unscientific and fail to offer probative and sufficient evidence to support any claim of negligence against the defendant. He also contends that Mr. Wilson's opinions are inadmissible under M.G. Bancorporation v. LeBeau, which adopts the Daubert standard for the admissibility of expert testimony. He also contends that the girl's act of putting her finger in the hinge end of the door was the proximate cause of the injury, not the door closing. He also contends that the defendant had no notice of any perceived hazard concerning the door.
737 A.2d 513 (Del. 1999).
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
5. Under Daubert, Kumho Tire Co., Ltd. v. Carmichael and M.G. Bancorporation, the trial judge must ensure that expert testimony is relevant and reliable. Daubert suggests four factors which a trial court may consider in evaluating the admissibility of expert testimony — testing, peer review, error rates and general acceptability. The inquiry, however, is a flexible one.
U.S., 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
10. The videotape which Mr. Wilson viewed was of the "home video" variety. The camcorder was set on a table near the men's restroom door and left running for about 25 minutes. The view of the door was from an angle. During the time it was on about twelve men went in and out of the restroom. When they pushed open the door to enter, or pulled it to exit, the unhinged, handle end of the door went out of view because of the angle of the camcorder. One cannot see exactly whether the door is being opened to a full 90 degrees, or for example, 80 degrees. One cannot fully see exactly when a man takes his hand off the door after opening it so that it can begin to close. Therefore, Mr. Wilson had to exercise a certain amount of judgment in deciding when a man entering or exiting the restroom appeared to be opening it all the way and in deciding when exactly to start the stopwatch to measure the time it took to close. On one occasion, however, the camcorder was taken into the restroom and one can plainly see a man twice fully opening and releasing the door. The video does not show "how closed" the door had to be before the hinged end would close enough to pinch the finger of a five year old girl, and Mr. Wilson did not offer any testimony on that point.
11. The defendant argues that Mr. Wilson's testimony is irrelevant and unreliable because the videotape was not made with any scientific control, the expert was not present when it was made and never personally inspected the door, the expert did not know when the video was taken or who took it, the expert did not know exactly how the injury occurred, the expert could not see how far the door was opened or when it was released because the handle end goes out of view, the expert had no measurements of the door, the expert had no information on the speed with which the hinged side closed versus the handle side, and the expert had no information of the time from the point where the daughter exited the restroom to the point where the injury occurred, or the point at which she placed her finger in the door.
12. After having viewed the videotape and Mr. Wilson's deposition, however, I find that the expert's opinions are relevant and reliable even with these criticisms. The door was opened and closed enough times, and there were enough instances where it appeared to be fully opened by an adult male, to give reliability to Mr. Wilson's time measurements. As mentioned, on two occasions one can clearly see it being opened fully and then released to close. The opening and closing of the door appeared to be substantially the same each time. According to the date on the videotape, the tape was made less than thirty days following the accident, and it has not been suggested that the door worked any differently then than on the day of the accident. The materials used by Mr. Wilson appear to be standard literature. The substance of his testimony is actually quite simple — that a door like the one involved should not close in less than three seconds from 70 degrees open, or should take four or five seconds or more from 90 degrees open, that this door closed in a little over two seconds or less, and that one of the reasons for a controlled closing time as recommended in the literature is to reduce the risk of injury. He confines his opinions to what can be seen on the videotape compared to the literature he reviewed. He does not attempt to express an opinion that the little girl would have removed her finger, and the injury would not have occurred, if the door had taken three or more seconds to close.
13. Summary judgment should be rendered if the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The facts must be viewed in the light most favorable to the non-moving party. Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
Superior Court Civil Rule 56(c).
Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del.Super. 1995) Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1087 (Del.Super. 1994).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Wooten v. Kiger, 226 A.2d 238 (Del. 1967).
14. A property owner having business invitees on his premises is obligated to exercise reasonable care to discover a condition which involves an unreasonable risk of harm. This includes an obligation to inspect his premises to discover any such condition and make it reasonably safe. A question of fact exists here as to whether the "condition" — the speed with which the door closed — created an unreasonable risk of harm. If so, a jury question also exists as to whether the defendant could or should reasonably have discovered the condition. Although the condition complained of does seem somewhat obscure, I am not persuaded that these issues should be resolved against the plaintiff as a matter of law.
DiOssi v. Maroney, 548 A.2d 1361 (Del. 1988); Restatement (Second) of Torts § 343 (1965).
Restatement (Second) of Torts § 343, comments b and d.
15. Although there is no direct evidence that the injury would not have occurred if the door had closed at a slower closing speed, a jury could infer that Jessica would have had at least some more time to remove her finger. On the record before me, this is sufficient to create at least some question of material fact regarding proximate causation.
16. By ruling that Mr. Wilson's testimony will be admitted, I do not foreclose the defendant from making specific objections at trial to particular parts of his testimony.
17. Therefore, the defendant's motion for summary judgment is denied.