Opinion
C.A. No. 98C-09-032-WTQ.
Submitted: February 1, 2000.
Decided: February 24, 2000.
Letter Opinion and Order on Defendant Shoney's Inc.'s Motion for Summary Judgment — MOTION DENIED .
Joseph W. Benson, Esquire, Andrew Ahern, Esquire, Joseph W. Benson, P.A., 1701 N. Market Street, P.O. Box 248, Wilmington, DE 19899
Colin M. Shalk, Esquire, Thomas P. Leff, Esquire, Casarino Christman Shalk, 222 Delaware Avenue, P.O. Box 1276, Wilmington, DE 19899
Gentlemen:
This is the Court's decision on Defendant Shoney's, Inc.'s Motion for Summary Judgment. The Plaintiff Marion Ward alleges she was injured on September 19, 1996 when she fell on landscape edging as she was walking from Shoney's Inn to Shoney's Appleby's Restaurant and, in particular, making a left-hand turn from the side toward the front door of the Restaurant.
The Court has considered photographs submitted by the parties, particularly two original photographs taken by the Plaintiffs expert, David Fleischer, in May 1999, which were submitted with Mr. Shalk's letter of November 23, 1999. The Court has also requested that the summary judgment record be supplemented by the inclusion of Mr. Fleischer's deposition taken on June 14, 1999, which I have read.
One of the most important facts about the photograph is that landscaping continues the line of the side of the building and one making a left hand turn must walk a couple of feet past the corner of the Restaurant before turning.
A second important fact is that the landscape edging is raised, probably short of two inches.
Testimony has been submitted from four people: The Plaintiff Marion Ward; a witness, Irene Connolly-Taylor; a witness, Robin M. Wolfe; and Plaintiffs expert, David Fleischer. A capsule summary of the testimony, which must be considered most favorably to the Plaintiff, follows:
1. Marion Ward: When turning the corner her foot hit something and she tripped and fell. She was not certain on what she tripped, but the paving seemed all right and she surmised it was the raised landscape edging.
2. Irene Connolly-Taylor: Mrs. Ward tripped at the corner of the edging. There was no other obstruction or defect. While she did not see Mrs. Ward's foot hit the edging, nothing else could have caused Mrs. Ward to trip.
3. Robin M. Wolfe: Her testimony is quite different. Mrs. Ward was walking away from the Restaurant front door when she fell. Mrs. Ward was close to the edging conversing with another person behind her and to her left. Mrs. Ward was about the midpoint from the front door to the corner of the building when Mrs. Ward fell. She does not know why Mrs. Ward fell.
There are two questions raised by this evidence. Does the evidence raise a factual question that Mrs. Ward fell because her foot hit the raised landscape edging? If so, does the existence of the raised landscape edging constitute negligence, creating of an unreasonable risk by Shoney's?
The Court is satisfied that the answer to the first question is yes. The Court is also satisfied that the answer to the second question takes some specific expert testimony to establish a prima facie case. The concrete light-colored sidewalk is quite definitively marked. It stands in clear contrast to the landscape area. The landscaping seems to be rather standard and, if anything, better kept than average. Even approaching along the side from back to front, the corner of the sidewalk is very much in plain view and clearly established. It is simply difficult for a lay factfinder to draw the inference that Shoney's was negligent from the fact that it used raised landscape edging, a very common practice.
But the Court does not foreclose considering of expert opinion to bolster the case for Mrs. Ward. Shoney's has taken the position that David Fleischer's opinion is nothing more than personal and should be excluded as expert testimony. The Plaintiff has seemed to take the view that the Plaintiff's case is sufficient without expert testimony, a position now rejected by this Court. This is the reason the Court has requested that the transcript of Mr. Fleischer's deposition be added to this summary judgment record.
Let me make one other comment about the plaintiffs position that Mr. Fleischer's testimony should be considered "in a separate context" at a Daubert hearing. I can think of nothing more disastrous to civil case processing in this Court than this Court's routinely undertaking expensive pretrial testimonial Daubert hearings in the typical personal injury case. Until one of the deities in our hierarchy speaks, this trial Judge, with a civil calendar of well over 500 cases as half his work, will resist such a burdensome undertaking and make the pretrial decision on the basis of deposition (which means counsel should qualify the expert) or decide the Daubert question at trial.
In reviewing Mr. Fleischer's deposition, I am satisfied for pretrial purposes he qualifies as a professional engineer expert on walkway safety. He is a civil engineer by education with B.S. and M.S. degrees, and has been evaluating walkway safety since 1986. While his experience has not been particularly directed to the interplay of walkways and landscaping, it appears to the Court that he has sufficient specialized knowledge to be helpful to a jury if he has an expert opinion. His opinion was that having a landscaping edge higher than the sidewalk produces an unreasonable tripping hazard given the tendency of people to cut corners. He spoke in terms of minimum ground clearance for the toe when the foot is swinging forward and his measurements suggested the edge in question was too high in comparison. Admittedly, his testimony did not depend heavily on scientific data, but it did demonstrate some organized familiarity with the factors that determine fault, both of the landowner and complainant. His testimony was particularly short on the practice within the restaurant and related businesses. The testimony might look less probative in the context of the full evidence. But the deposition in question was taken by counsel for Shoney's before Plaintiffs current counsel had appeared. If there is to be any update of the expert's report, it should be done within the next three weeks. IT IS SO ORDERED. The Court considers the Plaintiffs witnesses as fixed. The Defendant can again challenge the admissibility of the expert's opinion at trial if it so elects.
The Defendant's Motion for Summary Judgment is DENIED. IT IS SO ORDERED.
Counsel should confer and call Mrs. James for the entry of a Scheduling Order including a pretrial conference date and a trial date.
Sincerely,
William T. Quillen