Summary
concluding that expert testimony is unnecessary to establish that water should not be on the floor of a grocery store because the general operation of a grocery store is within a common juror's experience
Summary of this case from Jordan v. Trolley Tap House, Inc.Opinion
C.A. No. 07C-12-095 RRC.
Submitted: January 8, 2010.
Decided: February 12, 2010.
On Defendant Super Fresh Food Markets Inc. d/b/a Super Fresh Inc.'s Motion for Summary Judgment. DENIED.
Bruce L. Hudson, Esquire, Law Office of Bruce L. Hudson, Wilmington, Delaware, Attorney for Plaintiff Celeste Small.
David L. Baumberger, Esquire, Chrissinger Baumberger, Wilmington, Delaware, Attorney for Third Party Defendant Specialty Fabricators, LLC.
Richard D. Abrams, Esquire, Christian G. Heesters, Esquire, Mintzer, Sarowitz, Zeris, Ledva Meyers, LLP, Wilmington, Delaware, Attorneys for Defendant Super Fresh Food Markets, Inc.
Dear Counsel:
INTRODUCTION
Defendant's motion for summary judgment raises two issues. The first issue, apparently one of first impression in Delaware, is whether a plaintiff in a grocery store "slip-and-fall" personal injury case must produce expert testimony pursuant to D.R.E. 702 to establish the standard of care applicable to a "reasonably prudent grocer" in connection with any duty of that grocer to keep the grocery store safe from a "dangerous condition" (water on the floor).
Defendant uses the following terms interchangeably: "reasonably prudent shopkeeper," "professional storekeeper," "reasonably prudent grocer," and "prudent grocer." See Op. Br. at 2-3; Reply Br. at 3-4. The Court has elected to utilize the term "reasonably prudent grocer" because that term seems to best describe the standard of care applicable to the grocer.
The second issue, assuming that this Court concludes that expert testimony in support of the claim is unnecessary (as it does conclude), is whether the plaintiff has set forth sufficient evidence at this summary judgment juncture to allow a reasonable jury potentially to conclude that the dangerous condition had been on the floor long enough such that the grocer should have discovered and remedied the danger by conducting a "reasonable inspection" prior to the time Plaintiff slipped and fell.
As to the first issue, this Court holds that a plaintiff in a slip-and-fall personal injury case need not produce expert testimony pursuant to D.R.E. 702 to establish the standard of care applicable to a "reasonably prudent grocer" in connection with any duty of that grocer to keep the grocery store safe from a "dangerous condition" because this Court holds that the grocer in question is not a "professional" that would otherwise require expert testimony to establish a heightened standard of care.
Additionally, this Court holds that there is sufficient evidence in the record to allow a reasonable jury potentially to conclude that the alleged dangerous condition had been on the floor long enough that the grocer should have discovered and remedied the danger by conducting a "reasonable inspection" prior to the time Plaintiff slipped and fell.
For all the following reasons, Defendant's motion for summary judgment is DENIED.
FACTS AND PROCEDURAL HISTORY
This case stems from a slip-and-fall accident that occurred on January 14, 2006 at a Super Fresh grocery store near Rehoboth Beach. Plaintiff was shopping in the store when she asserts that she slipped and fell on water on the floor that had allegedly leaked from a nearby refrigerator. The refrigerator in question was manufactured by Third-Party Defendant, Specialty Fabricators, LLC.Plaintiff subsequently brought a negligence action against Super Fresh alleging that the store was negligent in failing to keep the premises safe from a dangerous condition (the water on the floor). Specifically, Plaintiff alleged that Super Fresh had a duty to conduct a "reasonable inspection" of the premises, and that the failure to conduct such a "reasonable inspection" resulted in the presence of a dangerous condition that caused Plaintiff to suffer injury.
Subsequently, Super Fresh brought a third-party complaint against Specialty Fabricators, LLC alleging that if Super Fresh is held responsible, Specialty Fabricators, LLC is also responsible as the manufacturer of the refrigerator.
At an arbitration hearing, Plaintiff testified that she did not see any water on the floor prior to her fall. Apparently, no other Super Fresh customers saw the water on the floor.
Ans. Br. Ex. A. at 11.
See Op. Br. at 5.
A manager of the Super Fresh store also testified at the arbitration hearing. Although the manager said that he did not see any water on the floor prior to Plaintiff's fall, the manager testified that he was "trained to keep a lookout for [dangerous conditions,]" and that he was scheduled to do a walk around inspection right around three o'clock (just after Plaintiff's fall).
Id. at 27.
Id.
Defendant has now moved for summary judgment, arguing that Plaintiff's failure to have obtained expert testimony on what constitutes a "reasonable inspection" for a grocery store necessitates a ruling in favor of Super Fresh because without expert testimony, Super Fresh asserts, Plaintiff cannot prove the standard of care required of a "reasonably prudent grocer."
Op. Br. at 4-5.
Defendant has also argued in the alternative that, even looking at the facts in a light favorable to Plaintiff, there is insufficient evidence to establish how long the water was on the floor. Defendant asserts that Plaintiff must produce evidence of this critical fact at this summary judgment juncture to establish that a "reasonable inspection" of the store could have discovered the water.
Id. at 5. Even though the discovery deadline had not passed as of the date of the filing of this motion, Plaintiff and Defendant agree that the factual record in this case on this issue is closed, and that the decision on summary judgment is appropriate at the present time.
Id.
In response, Plaintiff argues that expert testimony is unnecessary to establish the standard of care required of Super Fresh. Plaintiff asserts that there is no requirement of expert testimony in a grocery store slip-and-fall case, and that a jury can properly determine the nature of a "reasonable inspection" without the aid of expert testimony.
Ans. Br. at 4-5.
Id. at 5.
Additionally, Plaintiff argues that there is sufficient evidence in the record to preclude summary judgment. Plaintiff asserts that her own testimony combined with the testimony of a store employee allows the jury to determine that water had been on the floor long enough such that the grocer should have discovered and remedied the danger by conducting a "reasonable inspection" prior to the time Plaintiff slipped and fell.
Id. at 4.
THE BURDEN OF PROOF
In a motion for summary judgment, the moving party bears the burden of proving "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Summary judgment is only appropriate when, after viewing all the evidence in a light most favorable to the nonmoving party, the Court finds no genuine issue of material fact. "If a defendant, as the moving party, can establish that there is no genuine issue of material fact, and the defendant is entitled to judgment as a matter of law, the burden will shift to the plaintiff to show the existence of specific facts to support the plaintiff's claim." "Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, `the burden on the moving party may be discharged by . . . pointing out to the [] court-that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof." In an appropriate case, a plaintiff's failure to identify an expert can result in a grant of summary judgment in favor of a defendant.DISCUSSION
I. A Grocer is not a "Professional"; Expert Testimony is Unnecessary to Establish the Standard of Care in a Grocery Store Slip-and-Fall Case.
Defendant's first argument is that Plaintiff needs expert testimony to establish the standard of care owed by a "reasonably prudent grocer" in a grocery store slip-and-fall case. Defendant relies on D.R.E. 702:
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, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
To determine whether expert testimony is required, this Court must first determine whether a grocer is a "professional" in that expert testimony is necessary because, as Defendant argues, average jurors would not have sufficient experience in their everyday lives to determine how a grocer should conduct a "reasonable inspection" of the premises. It is necessary first to determine whether a grocer is a "professional" because professionals are usually held to a heightened standard of care, with expert testimony being necessary to establish that particular standard.
See Op. Br. at 3 (citing D.R.E. 701).
Robinson, 2009 WL 2158106 (Del. Supr.) (stating that expert testimony is necessary to establish a professional standard of care).
The Restatement (Second) of Torts is helpful in establishing who is considered a "professional." According to the Restatement, a "professional" must have a certain "skill" or other specialized knowledge. The Restatement defines the "skill" required as:
that special form of competence which is not part of the ordinary equipment of the reasonable [person], but which is the result of acquired learning, and aptitude developed by special training and experience.
Restatement (Second) of Torts § 299A (West 2009).
Although a grocer will certainly have some knowledge about grocery store operations that others do not, a grocer most likely does not undergo "special training" or possess other specialized knowledge that would be outside a common juror's experience.
In Robinson v. J.C. Penny Company, Inc., a case heavily relied on by Super Fresh, the Delaware Supreme Court required expert testimony to establish the standard of care for a security guard. In Robinson, the Supreme Court affirmed the Superior Court's decision to dismiss a personal injury action where the plaintiff had failed to produce an expert witness to testify concerning the applicable standard of care owed by a professional security guard. The Supreme Court stated that "[i]t is settled law in Delaware that the standard of care applicable to a professional can be established only through expert testimony."
2009 WL 2158106 (Del. Supr.).
Id.
Id.
This Court has held that expert testimony was not required to establish the standard of care for apartment owners or managers in a slip-and-fall case. Thus, in Vandiest v. Santiago, this Court denied an apartment owner's motion for summary judgment on the grounds that the plaintiff did not need expert testimony to establish a heightened standard of care, holding that apartment managers were not professionals. A grocer seems much more akin to the apartment owner in Vandiest than to the security guard in Robinson because a security guard would more likely undergo specialized training as a prerequisite for the job.
Vandiest v. Santiago, 2004 WL 3030014 (Del. Super.).
Id. at *6.
Further implicit support that the standard of care applicable to a "reasonably prudent grocer" does not require expert testimony is found in Hazel v. Delaware Supermarkets, Inc. Hazel, much like the present case, involved a slip-and-fall action that occurred at a grocery store. The plaintiff did not notice water on the floor either before or after her fall, "but indicated that she felt her legs `slide,' and that after the fall she touched her calf with her hand, and her hand was wet." The plaintiff brought a negligence action, and the defendant moved for summary judgment on the ground that the plaintiff did not have sufficient evidence to establish a prima facie case.
953 A.2d 705 (Del. 2008).
Id. at 707-708.
Id. at 708.
The Supreme Court reversed this Court holding granting the defendant's motion for summary judgment. The Supreme Court held that the plaintiff had established a prima facie case because she had slid on a wet floor and offered a theory of why she fell. The Supreme Court stated that the precise nature of what occurred was a question for the jury. Notably, and for the purposes of this opinion, the Supreme Court did not (nor apparently did the grocery store in the Superior Court) suggest that the plaintiff was required to produce expert testimony to establish the applicable standard of care for a reasonably prudent grocer. While it is true that the Supreme Court ordinarily considers only those legal issues raised at the trial court level, Hazel does tend to implicitly support this Court's holding today in that no one at either the trial court level or on appeal had apparently raised this issue in Hazel.
Id. at 713.
Id. at 710-713.
Id.
Defendant cites only one case from Kansas in support of its argument that expert testimony is required. Defendant argues that the law of Kansas, as stated in Liberty v. Westwood United Super, Inc., requires such expert testimony in a grocery store slip-and-fall case and urges this Court to follow Kansas law.
2005 WL 1006363 (Kan. App.).
In Liberty, the plaintiff sought to call an expert to testify on the standard of care applicable to a "reasonably prudent grocer." The defendant had filed a motion in limine to exclude the plaintiff's expert. The trial court found in favor of the defendant, but notably (for the present case) allowed the trial to proceed without the plaintiff's expert. On the plaintiff's appeal, the Kansas Court of Appeals reversed the trial court's exclusion of the plaintiff's expert because it determined that that expert would have been "helpful," and that the trial court had abused its discretion by excluding the expert. Liberty is factually and procedurally distinguishable. Liberty appears to hold only that expert testimony is helpful, but not required. Liberty appears inapposite under the procedural history of the present case because, here, Plaintiff has not identified an expert. Although an expert may indeed be "helpful," expert testimony is not required in a grocery store slip-and-fall case. The grocer in the present case does not meet the definition of a "professional." This Court will not require Plaintiff to produce an expert to 32 33 34 35 36 37 38 testify as to the applicable standard of care required of the grocer in this case.
Id. at * 1.
Id.
Id.
Id. at * 2.
Unlike Liberty, this case does not involve an issue of whether plaintiff "may" call an expert to help the jury better understand the applicable standard of care, and only involves the issue of whether Plaintiff "must" call an expert to establish the standard of care. This Court does not reach the issue of whether a plaintiff in a grocery store slip-and-fall case has the option of retaining an expert on the applicable standard of care of a "reasonably prudent grocer."
II. Plaintiff has Adduced Sufficient Evidence to Allow the Jury to Determine if the Water Had Been on the Floor Long Enough Such That it Could Have Been Discovered by a "Reasonable Inspection"
Defendant also argues that this Court should grant summary judgment because Plaintiff has adduced insufficient evidence to establish a prima facie case. Defendant has argued that Plaintiff has no witnesses or any other evidence to establish how long the water was on the floor and that such evidence is necessary for a jury to determine whether a "reasonable inspection" could have discovered the "dangerous condition."
It is Plaintiff's burden to establish some evidence in the record that would help determine how long the water was on the floor. Plaintiff has met this burden.
Because the movant has pointed out the absence of proof in the record, the burden is on the nonmoving party to establish facts in the record to support a prima facie case. See Singletary v. Pennsylvania Dep't of Corrections, 266 F.3d 186, 193 n. 2 (3d Cir. 2001).
This case appears factually quite similar to Hazel. Plaintiff has testified that she slipped and that, after the fall, the area underneath her was wet. The store manager will testify that he was going to inspect the store around three o'clock, a time apparently just after her fall. These facts, among others, will help a jury infer how long the water was on the supermarket floor. It will then be the role of the jury to determine if Plaintiff has shown by a preponderance of the evidence that a "reasonable inspection" could have discovered the "dangerous condition."
See the discussion of Hazel supra Discussion Section I.
Hazel, 953 A.2d at 705.
Accordingly, for all the reasons stated above, Defendant's motion for summary judgment is DENIED.