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Expert Opinions Excluded in Trip & Fall

Deborah Elkins//April 11, 2017

Expert Opinions Excluded in Trip & Fall

Deborah Elkins//April 11, 2017

In plaintiff’s suit for injuries suffered when she tripped and fell over a single step at the entrance to a commercial property, the Richmond Circuit Court excludes expert opinions from a human factors practitioner and a structural engineer as invading the province of the jury.

Two experts

Plaintiff’s first expert is a professional human factors practitioner and the second expert is a structural engineer offered as an expert in commercial construction, building codes, general safety issues and construction projects and repairs. As there is considerable overlap between the opinions proffered for each of the expert witnesses, the court will address them together.

The first two expert opinions – that the step was a tripping hazard and that plaintiff would have had difficulty perceiving it – are clearly within a layperson’s common knowledge. When reduced to essentials, the question is whether a step in the sidewalk was safe. At the very least, this is a subject that ordinary people are capable of comprehending, forming an intelligent opinion about, and drawing their own conclusions from. The jury can hear testimony and make a decision about how the lighting conditions, the colors and pattern of the bricks and the natural eye line of pedestrians impacted visibility.

The third opinion – whether or not the step in question violates national standards – is irrelevant, misleading and unduly prejudicial. These national standards are not the law in Virginia and thus are not relevant to a determination of negligence.

The fourth, fifth and sixth opinions – that defendant should have put up warning signs, marked the step with contrasting colors or other visual cues, and performed regular inspections – all invade the province of the jury. The question for the jury is whether or not the step was a hazard. The fact that there were allegedly no signs posted or visual cues alerting people to the presence of the step are additional facts for the jury to consider in deciding whether the step was hard to see. Similarly, whether regular inspections would have alerted defendant to the alleged hazard is a question a jury is equally as capable of answering as an expert. Opinions on these topics must be struck.

The seventh opinion – that the breaches of the standard of care were a proximate cause of plaintiff’s fall and injuries – yet again invades the province of the jury and is highly prejudicial. It is within the purview of the jury to determine the proximate cause of a fall and injury, and this particular fall and injury do not require specialized skill or knowledge to evaluate.

The court grants defendant’s motion in limine to exclude the expert opinions.

Stanley v. 12th Street Commercial Block LLC (Cavedo) No. CL 16-906, March 23, 2017; Richmond Cir. Ct. John Newby for plaintiff; John Merrick for defendant. VLW 017-8-034, 5 pp.

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