Opinion
CA. No. 98C-02-170-CHT.
November 1, 1999.
November 17, 1999.
ORDER
This 17th day of November, 1999, upon consideration of the Defendants' Motion in Limine regarding applicable codes and the record in this case, it appears that:
1. The Plaintiffs expert is expected to testify that the Defendants were negligent because they failed to conform to certain codes and standards. The Plaintiffs expert has cited to the following codes, texts, regulations and standards: TheBOCA National Property Maintenance Code /1993 (BOCA), the Time-Saver Standards for Site Planning (Time-Saver), Joseph DeChiara Lee E. Koppelman (1984), Pedestrian Falling Accidents in Transit Terminals (Pedestrian Falling), U.S. DOT, Report MA-06-0098-84-2 (Fed. 1985) reprint (Oct. 1996), 28 C.F.R. Part 36, Americans With Disabilities Act (ADA), the American National Standard for Buildings and Facilities-Providing Accessibility and Usability for Physically Handicapped People (ANSI), [A117.1-1986], and the American Society for Testing and Materials Designation F1637-95,Standard Practice for Safe Walking Surfaces (ASTM).
2. The City of Wilmington has not adopted the ANSI or the ASTM codes. Although the BOCA Building Code has been adopted by the City and that code incorporates the 1993 BOCA Property Maintenance Code by reference, it is not applicable to the Defendants. It is inapplicable because the Building Code controls matters dealing with construction, alteration, addition, repair, and maintenance of buildings and structures. The issue before the Court involves repair of a sidewalk which is not a building or structure within the scope of the code. Time-Savers is a reference book for architects, designed to assist architects in designing buildings and is not necessary to assist the trier of fact in understanding the accident. Pedestrian Falling is applicable to people tripping, however, the report discusses the cause of a person tripping, which is obvious and within the common sense of the jury. The ADA addresses discrimination against disabled individuals and applies to public accommodations and commercial facilities. The Plaintiff is neither disabled nor was she using public accommodations or commercial facilities at the time of the incident. Therefore, none of the above code sections and standards are applicable to the case at bar.
3. Delaware Rule of Evidence 702 states the requirements for the admissibility of expert testimony: "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 or education may testified thereto in the form of an opinion or otherwise." In Freiman v. Evans, Del. Super., C.A. No. 94C-02-23 1, Herlihy, J. (August 19, 1997), the court did not allow expert testimony regarding a sidewalk's [defective] condition and the duty of care that may have flowed from that condition because the facts where readily understandable by the jury.
4. Section 42-42(a) of the Wilmington Code sets forth the standard to which the
Section 42-42(a) of the Wilmington Code reads as follows:
Every sidewalk or footway between the curb stone and the building line . . . shall at all times be kept in proper condition and free from obstruction and defective conditions. Any sidewalk, footway or curb, which shall become uneven or in which there shall be holes caused by wear or removal of material of which it is composed or in which there shall be depressions or in which there shall be loose . . . material or which shall become broken or thrown into ridges or forced out of its normal position by trees . . . or which shall be out of proper condition from any cause, natural or artificial, shall be deemed to be a nuisance.
Defendants are to be held. This section is clear and unambiguous. Its meaning is a matter of common sense. Expert testimony is not necessary to assist the trier of fact in understanding its meaning or applicability. See State v. Skinner 632 A.2d 82 (1993).
Based on the foregoing, the Defendant's Motion in Limine seeking to exclude testimony regarding the above described codes is granted.
IT IS SO ORDERED.
TOLIVER, Judge.