Plaintiff filed suit against defendant related to a slip and fall. Plaintiff hired a Property Management Expert Witness to provide testimony. Defendant filed a motion to exclude the testimony. The court granted the motion to exclude.
Facts: This case (Ackerman et al v. U-Park, Inc. – United States District Court – District of Nebraska – March 20th, 2019) involves a slip and fall. The plaintiff alleges that, after she parked her car in a lot to attend a nearby event, she slipped and fell on black ice that she was unable to see because it blended into the blacktop. In order to answer the question as to how the ice originated, the plaintiff hired Property Management Expert Witness Philip B. Wayne to provide testimony. The defendant has filed a motion to exclude this expert from testifying.
Discussion: Wayne performed a “volleyball roll” and observed “asphalt staining patterns” to come to his conclusions. He concluded that 1) there was a complete lack of maintenance on the lot surface; 2) a birdbath existed in the Stall; 3) The Lot’s natural drainage path would allow for ice and snow to melt and drain towards the birdbath in the Stall; and 4) black ice formed in the birdbath causing Ackerman’s fall.
The court opines that the plaintiff has failed to demonstrate that Wayne is qualified to offer expert testimony on his theory that a birdbath resulted in black ice. The court opines that Wayne does not have the relevant academic qualifications and thus relies on practical experience to attempt to qualify as an expert. The plaintiff, the court notes, has not established that Wayne’s practical experience bears a close relationship to his opinion that a birdbath existed in a Stall two years prior to his inspection of the lot.
In addition, the plaintiff has failed to explain how experience in managing properties that have parking lots surfaced with asphalt makes him an expert about asphalt and the rate at which it deteriorates. Also, the plaintiff has failed to meet the burden in showing that Wayne’s testimony is relevant and reliable. The court notes that Wayne did not examine the stall until more than two years after the plaintiff’s fall. Also, he did not take any photographs or otherwise document his inspection of the stall. To be sure, Wayne also admitted that he could not testify that a birdbath existed in the stall when the plaintiff fell from personal observation.
Conclusion: The motion to exclude the expert witness testimony of Philip B. Wayne is granted.