Expert Witnesses in Washington Premises Liability Cases

Personal injury cases often hinge on why and how the injury occurred.  Although the victim and other eyewitnesses can testify to what happened, Washington personal injury attorneys know that an expert is often needed to explain how and why the incident happened.  An expert may only testify within the area of his or her qualifications, however.  Furthermore, the expert’s opinions must have an adequate foundation.  The court has discretion in determining whether an expert may testify.

A Washington appeals court recently considered  whether an expert was qualified in the area of his opinions and whether he laid an adequate foundation for those opinions.  The plaintiff was injured when the chair in which he was sitting on the deck of the defendant pizza restaurant broke where the arm attached to the seat.

The assistant manager on duty at the time examined the arms to ensure they were stable when setting up the deck.  He had only identified two chairs as being unacceptable in the past 11 years.  He was not aware of any other incidents when chairs at the restaurant broke.

The owner was also unaware of any incidents involving a broken chair, but he did know of two times when chairs were removed from service.

The plaintiff sued, alleging the restaurant caused his fall by creating a dangerous condition and failing to properly inspect or correct it.  The restaurant moved for summary judgment, claiming it had no actual or constructive notice of the dangerous condition and had exercised reasonable care.  In opposition, the plaintiff filed a declaration and report from his safety expert.

The defendant moved to exclude and strike the expert’s evidence, arguing in part he was not qualified to opine on why the chair broke.  The defendant argued that the expert’s opinion lacked a factual basis and that he had not conducted a structural or material analysis.

The plaintiff argued his expert was qualified as a safety expert under the rules of evidence.  Furthermore, the opinions were based on his experience running restaurants and as a safety consultant.

The trial court granted summary judgment, finding the expert’s report did not include the basis for his opinions.  It did not establish his qualifications to opine on the plastic chair.  It did not provide a basis for the conclusion that the chair was structurally dangerous or stating there was an industry standard for inspections.  The court found that the expert had not provided a foundation for his opinion on how or why the chair broke or for his opinions on chair inspections.

The expert had opined the chair had exceeded its useful life and was in an unreasonably hazardous and dangerous condition.  The plaintiff argued the expert was qualified to opine on the chair’s structural integrity and the chair inspections because he was a certified safety manager and forensic consultant, investigated injury cases, and had owned restaurants. The appeals court noted, however, that his experience was mainly in construction and occupational safety, and his experience in premises liability primarily involved slips, trips, and falls.  Nothing in the record showed his qualification to opine on a chair’s structural integrity or chair inspections.  The appeals court also found that the expert’s ownership of restaurants did not show any knowledge, skill, experience, or training on the useful life of chairs or the adequacy of a chair inspection program.  The appeals court found no abuse of discretion in the trial court’s finding that the expert provided an insufficient foundation for his opinions.

The plaintiff argued that there was a genuine issue of material fact as to whether the restaurant had actual or constructive notice of an unsafe condition with the chair.

The appeals court found no evidence the restaurant had actual notice of a defect in the chair that broke.  The employees were instructed to look at the equipment when the deck was set up each day, and the opening manager looked at all of the chairs.  The assistant manager at the time of the fall stated he checked the arms of each chair when he set up the deck.  When chairs had broken in the past or cracks were reported by employees, those chairs were removed from service.  There was no evidence a customer had ever reported a broken chair. The appeals court rejected the plaintiff’s argument of actual notice because the owner testified he had been told of cracks and fissures in other chairs.  The appeals court found no evidence the defendant had actual notice the chair in question was unsafe.

Constructive notice occurs if the unsafe condition has existed long enough to allow the owner to properly inspect the premises and remove the danger in the exercise of due care.  The appeals court noted the plaintiff had not presented evidence on the length of time the chair had been in an unsafe condition, which was necessary to show the defendant had an adequate opportunity to inspect and remove the danger.  Since the appeals court found there was an insufficient foundation for the expert’s opinion, it rejected his opinion that the chair was in an unsafe condition and exceeded its useful life.  Although the expert pointed out the chair’s warranty was only three years, there was no evidence that a warranty was equal to the useful life of the chair or “what the useful life of the chair actually means.”  The expert also noted the chair had been stored outside and exposed to extreme weather conditions, but the court found no evidence of the weather conditions to which the chair had actually been exposed and why they would make it unsafe.  The appeals court found there was no evidence of constructive notice.

The appeals court further found there was no genuine issue of fact as to whether the defendant used reasonable care.  Although there were no written procedures regarding inspecting the chairs or using them outdoors, the record showed that the restaurant’s employees were instructed to look at the equipment on the deck, and the assistant manager on duty checked the chair arms.  The plaintiff’s support for his argument was the expert’s opinion that the restaurant did not have an effective program for inspecting the chairs and that an effective safety program includes written policies and procedures.  The appeals court again noted there was not a sufficient foundation for the expert’s opinion.

This case shows how important expert evidence can be in personal injury cases.  Here, the plaintiff relied on the expert to show actual or constructive notice and lack of reasonable care, so when the expert’s testimony was excluded, the court found insufficient evidence to present a genuine issue of material fact.

If you have been injured on someone else’s property, an experienced Washington personal injury attorney can help you.  The attorneys at Blair & Kim, PLLC, can work with you to determine if an expert is needed and to find an appropriate expert.  Call us at (206) 622-6562 to discuss your case.

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