Summary
finding engineer's testimony insufficient to raise an issue of material fact due to lack of expert qualifications, but also noting that engineer did not reference relevant industry standards
Summary of this case from Ramos v. Simon-Ro Corp.Opinion
Argued March 20, 2000.
May 3, 2000.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated May 27, 1999, which granted the defendant's motion for summary judgment dismissing the complaint.
Berley and Berley, Bethpage, N.Y. (Debra Berley of counsel), for appellant.
Chesney Murphy, LLP, Baldwin, N.Y. (Michelle S. Russo of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The plaintiff was injured when she was struck by a box of diapers which she tried to remove from the top shelf of a diaper feed rack at one of the defendant's stores. She contends that the defendant created a dangerous condition by placing the boxes of diapers on the top shelf instead of on the floor and by failing to warn customers that they should not remove items from the top shelf or should request assistance to do so.
Contrary to the plaintiff's contention, the defendant established its entitlement to judgment as a matter of law. In opposition, the report submitted by the plaintiff's engineer did not raise any triable issue of fact with regard to the defendant's prima facie showing that no dangerous condition existed. To establish the reliability of an expert's opinion, the party offering that opinion must demonstrate that the expert possesses the requisite skill, training, education, knowledge, or experience to render the opinion (see, Matott v. Ward, 48 N.Y.2d 455; see also, Kumho Tire Co. v. Carmichael, 526 U.S. 137; Daubert v. Merrell Dow Pharms., 509 U.S. 579). In the case at bar, the report of the plaintiff's expert recited that he is a licensed engineer, but no further information was offered to establish any specialized knowledge, experience, training, or education with regard to consumer shelving, package retrieval, or customer safety so as to qualify him as an expert. Moreover, the engineer's report failed to identify any violation of industry-wide standards or accepted practices by the defendant. Therefore, the engineer's conclusions regarding the safety of the shelving and shelf-stocking practices of the defendant were insufficient to raise a genuine issue of material fact (see, Ruggiero v. Waldbaums Supermarkets, 242 A.D.2d 268; Mendes v. Whitney-Floral Realty Corp., 216 A.D.2d 540).
BRACKEN, J.P., O'BRIEN, KRAUSMAN and GOLDSTEIN, JJ., concur.