Slicer v. Hill

M. Jane Brady

CONSOLIDATED
JURY TRIAL DEMANDED

Upon Defendants' Joint Motion in Limine Regarding the Proffered
Testimony of William Kunzman, P.E., GRANTED. Upon Defendants' Joint Motion in Limine Regarding the Proffered Testimony of Frederick G. Bremer, AIA, DENIED. Upon Defendants' Joint Motion in Limine Regarding the Proffered Testimony of Walter Kilareski, GRANTED. Upon Defendants Able Associates', DLR Properties', and Kohl's Joint Motion in Limine Regarding Non-Expert Testimony Relative to Crosswalks, GRANTED, as to both Non-Expert Testimony and Evidence of Prior Existence of Crosswalks. Upon Defendants Oekos Kirkwood LLC's and Oekos Management Corp.'s Motion in Limine to Preclude Certain Evidence and Trial Conduct Regarding Plaintiff's Location at the Time of the Accident, DENIED.
OPINION AND ORDER

Gary S. Nitsche, Esquire, Weik, Nitsche & Dougherty, Wilmington, Delaware, Attorney for Plaintiffs.

Matthew O. Donelson, Esquire, Elzufon, Austin, Reardon, Tarlov & Mondell, P.A., Wilmington, Delaware, Attorney for Defendant Oekos Kirkwood, LLC.

Brian M. Gottesman, Esquire, Berger Harris, Wilmington, Delaware, Attorney for Defendants DLR Properties and Able Associates.

David G. Culley, Esquire, Tybout, Redfern & Pell, Wilmington, Delaware, Attorney for Defendant Kohl's Department Stores, Inc.

Stephen J. Milewski, Esquire, White & Williams LLP, Wilmington, Delaware, Attorney for Defendant Westfield Insurance Co.

Nicholas E. Skiles, Esquire, Swartz Campbell LLC, Wilmington, Delaware, Attorney for Defendant Michele R. Hill.

BRADY, J. I. INTRODUCTION
A. Facts

This is a personal injury action wherein Beverly Slicer ("Plaintiff") and L. Curtis Slicer, Jr. (collectively, "Plaintiffs") brought suit against multiple defendants to recover damages sustained when Plaintiff was struck by an automobile driven by Defendant Michele Hill ("Hill") in the access road or fire lane in front of the Kohl's store at the Kirkwood Plaza Shopping Center in Wilmington ("the property"), Delaware on October 20, 2007. Plaintiffs allege Defendants Able Associates, L.P. ("Able"), DLR Properties ("DLR"), Kohl's Department Stores, Inc. ("Kohl's"), and Oekos Kirkwood, LLC and Oekos Management Corporation (collectively, "Oekos") are negligent for Plaintiff's injuries because they failed to provide her a safe means of ingress and egress, and they failed to remediate or warn her of a hazardous condition upon the property, the lack of a marked crosswalk.

B. Procedural History

Defendants filed four Joint Motions in Limine on February 6, 2012, which are the subject of this Opinion. They seek in three motions to exclude the proffered testimony of Plaintiffs' experts, William Kunzman, P.E., Frederick G. Bremer, AIA, and Walter Kilareski, P.E. Defendants seek in the remaining motion to preclude the introduction of non-expert testimony relative to crosswalks and evidence of prior existing crosswalks at the location of Plaintiff's injury. Also on February 6, 2012, Oekos filed a Motion in Limine to Preclude Certain Evidence of Plaintiff's Location at the Time of the Accident. Plaintiffs filed a response to each motion on February 28, 2012. The Court heard argument on March 5, 2012.

C. Parties' Contentions
Admissibility of Expert Testimony

Defendants contend Plaintiffs' proffered expert testimony from William Kunzman, P.E. ("Kunzman") is neither reliable nor relevant because it is not founded upon science-based methodology and is not relevant to the specific circumstances of this case. Plaintiffs respond that Kunzman's testimony would assist the jury in determining that traffic control devices, such as a stop sign and an enhanced crosswalk, have a quantifiable impact that would have increased Hill's awareness of pedestrian activity.

Defendants contend Plaintiffs' proffered expert testimony of Frederick G. Bremer, AIA ("Bremer") is inadmissible because his opinions are based on generalized, non-specific safety statements, inapplicable design criteria, over-extrapolated conclusions, and his own ipse dixit opinion. They claim Bremer culled favorable support from various safety publications. Plaintiffs respond that Bremer's opinions are substantiated by his experience and qualifications.

Defendants contend Plaintiffs' proffered expert testimony of Walter Kilareski, P.E. ("Kilareski") is inadmissible because it is unreliable and unsupported by scientific testing or studies. Defendants also contend Kilareski's testimony is inadmissible because his opinions are premised upon a flawed diagram of the incident which placed Hill in the drive aisle to the left of where she actually was at the time she accelerated out into the fire lane. Plaintiffs respond that Kilareski is well qualified and relied upon adequate authority in forming his opinions, and his misplacement of Hill in the diagram does not alter his opinions or conclusions.

Motions in Limine to Exclude Evidence

Defendants Able, DLR, and Kohl's contend non-expert testimony regarding the relative safety of parking lots with crosswalks versus those without, non-expert testimony regarding the appearance or design of parking lots other than that of the Kirkwood Shopping Center, and evidence regarding the prior existence of a crosswalk are inadmissible because they lack probative value. Plaintiffs respond that lay testimony is necessary to establish an industry standard of care regarding the use of crosswalks in parking lots, and evidence of the prior existence of crosswalks is necessary to show Able concealed or failed to disclose a condition involving unreasonable risk to persons upon the land, as well as a that Kohl's deviated from its own internal design standards in failing to replace the prior crosswalk.

Defendant Oekos contends that since it is undisputed Plaintiff would not have been in the area where a marked crosswalk used to exist when she was injured, Plaintiffs may not introduce evidence stating or suggesting that Plaintiff was in the area previously occupied by a marked crosswalk, because such evidence would mislead the jury to conclude the accident would not have occurred if a crosswalk existed at the time of the incident. Plaintiffs respond that Defendant cannot be certain Plaintiff would not have been in the crosswalk, had one existed, because the parties cannot be sure where it would exist. Plaintiffs argue a crosswalk applied after the summer of 2006, when a prior crosswalk was removed, could have been altered slightly to increase parking lot safety.

II. DISCUSSION
A. Admissibility of Expert Testimony

Delaware Rule of Evidence 702 provides an expert witness may testify if his specialized knowledge will assist the trier of fact and if he is qualified according to the following three factors: "(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."

D.R.E. 702.

Under the Daubert standard, a trial judge must act as a gatekeeper to assess the relevance and reliability of evidence, using the following factors:

(1) the witness is qualified as an expert by knowledge, skill experience, training or education;
(2) the evidence is relevant;
(3) the expert's opinion is based upon information reasonably relied upon by experts in the particular field;
(4) the expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue; and
(5) the expert testimony will not create unfair prejudice or confuse or mislead the jury.

In assessing whether an expert's opinion is based on reliable principles and methods, Courts look to:

(1) whether the theory or technique has been tested;
(2) whether the theory or technique has been subjected to peer review and publication;
(3) the known rate of potential error and the control standards for the technique's operation; and
(4) whether the theory has gained general acceptance in the scientific community.

In absence of a standard fixed by judicial decision or legislative enactment, the jury must define and apply the standard of care for a reasonably prudent person acting in the defendant's position, given the specific circumstances of a case. Parties may establish a standard of care through evidence of trade custom or expert testimony. "The custom or practice in a particular industry is probative of what conduct is reasonable under the circumstances." Evidence of custom does not establish the existence of a legal duty, as the existence of a legal duty depends upon the relationship between the parties, as well as upon "statutes, rules, principles, and precedents." "Evidence of custom is never controlling . . . and expert testimony is only relevant when the matter in issue is not one of common knowledge." Where there are no industry-wide standards for a defendant's alleged conduct, expert testimony is not necessary to establish a prima facie case of negligence.

Delmarva Power & Light v. Stout, 380 A.2d 1365, 1367 (Del. 1977); Kaster v. Big Kahuna of Wilmington, Inc., 1999 WL 459135, *2 (Del. Super. Apr. 14, 1999).

Delmarva Power, 380 A.2d at 1367; Bryant v. Delmarva Power & Light Co., 1995 WL 653987, *11 (Del. Super. Oct. 2, 1995).

Sears, Roebuck & Co. v. Midcap, 893 A.2d 542, 554 (Del. 2006).

Bryant v. Delmarva Power & Light Co., 1995 WL 653987, *11 (Del. Super. Oct. 2, 1995).

Delmarva Power, 380 A.2d at 1367.

Id.

The parties agree that no fixed judicial or statutory standard exists as to placement of crosswalks. Therefore, the parties may establish a standard of care through evidence of custom or expert testimony.

See id.; Kaster v. Big Kahuna of Wilmington, Inc., 1999 WL 459135, *2 (Del. Super. Apr. 14, 1999); Restatement (Second) of Torts § 295A (1965); Houston v. Horsey, 99A-08-002 HDR, 2000 WL 303328, n. 5 (Del. Super. Feb. 4, 2000).

1. Kunzman

Kunzman opines in his report that "the location where Ms. Slicer was struck was a dangerous condition" for two reasons. His first reason is that "it is custom and practice in the general area to put an enhanced marked crosswalk to warn the driver that a pedestrian may be crossing and to tell the pedestrian where to cross." The second is that the existence of an unmarked drive aisle and "raised island" make it reasonably foreseeable that a collision would occur between a car and pedestrian. To determine custom and practice, Kunzman surveyed fourteen shopping centers in the area near the shopping center where the cause of action took place to see if they featured crosswalks leading to main store entries. He found that all the shopping centers he surveyed featured marked crosswalks.

Kunzman Report at ¶ 14.

Id.

Id.

Id. at 2-3.

Id. at ¶ 13.

While expert testimony of whether a lack of a crosswalk was a dangerous condition on the property is relevant, Kunzman's proffered expert testimony regarding the same is not admissible because it will not assist the jury in understanding evidence or making findings of fact. Kunzman did not use scientific techniques or information reasonably relied upon by experts to form his conclusions. Kunzman fails to cite literature or standards to support his opinion. One article, which Kunzman claimed in his deposition to have relied upon, sets forth that one should consider the volume of cars, speed of cars, and distance across the number of lanes in considering whether a crosswalk would affect the safety of a parking lot. However, Kunzman surveyed fourteen local shopping centers without consideration of those factors or dimensions, traffic patterns, reports or rates of pedestrian collisions, or amounts, sizes, and types of stores in each center. Therefore, the survey is not a reliable basis for a conclusion that Defendants departed from a standard of care established by local custom. Further, the mere existence of crosswalks at other local shopping centers is a matter of common knowledge, and thus a jury need not hear expert testimony on the matter. Kunzman's testimony is not reliable and would unduly prejudice Defendants. Therefore, Defendants' Motion is GRANTED as to Kunzman's capacity to testify as an expert. However, Kunzman may testify as a fact witness, as his observations of the configurations, and presence or absence, of crosswalks may establish a custom in the community.

See Pl.'s Ex. A at 63.

Id.

Kunzman Report at 2-7.

Under the Restatement (Second) of Torts § 295A, "In determining whether conduct is negligent, the customs of the community, or of others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable man would not follow them." The existence of crosswalks in front of stores similar to Kohl's, in similarly sized shopping centers, in the area surrounding the Kirkwood Plaza shopping center is relevant to custom in this case. Having visited fourteen shopping centers in the area near Kirkwood Plaza, Kunzman has personal knowledge of crosswalks in those centers. Therefore, he may testify as to the existence, locations, and characteristics of those crosswalks as evidence of custom.

Restatement (Second) of Torts § 295A (1965); Houston v. Horsey, 99A-08-002 HDR, 2000 WL 303328, n. 5 (Del. Super. Feb. 4, 2000) (discussing a custom of leaving the keys inside of unlocked vehicles at a particular auction).

See D.R.E. 602 ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.").

2. Bremer

Bremer concludes in his report that Defendants should have provided a crosswalk, "as required" by several publications: Parking Principles, Time-Saver Standards for Site Planning, and Site Planning. Despite his use of the word "required," the sources clearly do not require compliance by Defendants. Bremer acknowledges in his report that Parking Principles explains guidelines for the importance of reducing pedestrian/car conflicts, Time-Saver Standards for Site Planning defines a national standard for necessary elements of safe design, and Site Planning discusses pedestrian movements.However, Bremer's use of the word "required" does not so damage the reliability of his testimony that all of his opinions should be excluded. Bremer is extensively qualified by his education, experience, and involvement in designing and planning numerous retail sites. His sources are credible, reputably published, and written or approved by groups such as the National Academy of the Sciences, the National Safety Council, and various trade organizations. Since expert testimony is admissible to establish a standard of care, his testimony will be helpful to the jury in determining whether a crosswalk was necessary on the property at the time of Plaintiff's injury. Defendants will be free to cross examine Bremer as to the factual basis of his opinions, including the extent to which Defendants would have been advised to adhere to any of the materials he relied upon in forming his opinion. Therefore, Defendants' Motion is DENIED. However, Bremer is precluded from using the word "required" to describe Defendants' duty to adhere to the principles set forth in Parking Principles, Time-Saver Standards for Site Planning, and Site Planning.

Bremer Report ¶ 7.

Id. 4-5.

See Defs.' Mot. Exs. E-L.

See Delmarva Power & Light v. Stout, 380 A.2d 1365, 1367 (Del. 1977).

Perry v. Berkley, 996 A.2d 1262, 1271 (Del. 2010).

3. Kilareski

Kilareski concludes in his report that a marked crosswalk would have heightened awareness of pedestrian activity. His CV indicates he is well qualified as a traffic and transportation engineer and has written numerous books and articles on the subject. Kilareski's report is based upon his measurements of the parking lot, geometrical features of the parking lot near the point of impact, and American Association of State Highway and Transportation Officials standards for stopping, sight distance, and brake reaction times. Opposing counsel contends Kilareski did not place Plaintiff accurately in his diagrams. Kilareski relied upon the police report for the incident and his own measurements, as well as his own diagram, in forming his opinions. Whether, and to what extent, the precise location of Plaintiff may affect the credibility of his conclusions is a proper subject of cross-examination. His misplacement of Hill does not preclude his testimony.

Kilareski Report Appx. A.

Several of Kilareski's conclusions, which are measurements and time-distance calculations, do not require the support of sources in addition to those upon which Kilareski indicated he relied. Specifically, Kilareski cites the American Association of State Highway and Transportation Officials definitions and brake reaction time standards. However, Kilareski also opines that a marked crosswalk would have heightened awareness of pedestrian activity, which conclusion is unsubstantiated by scientific studies. Kilareski testified that pedestrians' and drivers' attitudes vary throughout the country based on enforcement of vehicle codes pertaining to pedestrian rights of way. He testified he did not know how codes are enforced in Wilmington. Kilareski based his conclusion that Delaware motorists are respectful to pedestrians upon his personal experience walking around the area, his experience that pedestrians have the right of way in most places he has traveled, and that "motorists in just about all places respect the pedestrian in a crosswalk." In the same deposition, Kilareski referenced studies performed by the Institute of Transportation Engineers and American Society of Civil Engineers that demonstrate the affects of signals, signs, and markings upon motorists, as well as studies concluding motorists' awareness of pedestrians is heightened when crosswalk are present in a parking lot.

Kilareski Dep. Tr. at 97.

Id.

Id. at 97-99.

Id. at 100.

Id. at 96.

Kilareski made clear in his deposition that scientific principles, methods, and studies exist to assess and analyze pedestrian and motorist attitudes in Delaware, as well as pedestrian and motorist behavior in parking lots marked with signals, signs, and crosswalks. However, Kilareski utilized none of those studies in forming his opinions. Instead, he relied upon his personal experience as a pedestrian in Wilmington and other places. As this Court stated in Jones v. Astrazeneca, LP, "an expert's impressive qualifications alone will not serve as a license to express ipse dixit rather than properly supported expert opinion. . . . 'an expert's failure to explain the basis for an important inference mandates an exclusion of his or her opinion.'" The absence of a scientific basis for Kilareski's opinion undermines the reliability of his testimony, rendering it inadmissible. Therefore, Defendants' Motion is GRANTED, as to Kilareski's proffered opinion that a marked crosswalk would have heightened awareness of pedestrian activity. Kilareski's measurements and time-distance calculations are admissible, as they are based upon reliable principles and methods.

Id. at 96, 97-100; Kilareski Report at 3-8.

C.A. 07C01420, 2010 WL 1267114 (Del. Super. Mar. 31, 2010).

Id. at *9.

See Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 795 (Del. 2006); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993).

B. Admissibility of Certain Evidence

To be admissible, evidence must be relevant, meaning it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." To determine relevance, the Court must examine the purpose for which evidence is offered and whether it is of consequence to the action and advances the likelihood of asserted facts. Under D.R.E. 403, the Court may exclude evidence where the danger of undue prejudice substantially outweighs its probative value. Probative value concerns "the tendency of the evidence to establish the proposition that it is offered to prove."

D.R.E. 401.

Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247, 1254 (Del. 2011).

D.R.E. 403.

Getz v. Delaware, 494 A.2d 1237, 1241 (Del. 1985).

1. Non-expert testimony regarding the relative safety of crosswalks is inadmissible.

Testimony of non-expert witnesses is limited to opinions or inferences which are (a) rationally based on the witness's perception, (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge.

D.R.E. 701 (emphasis added); Lagola v. Thomas, 867 A.2d 891, 896-97 (Del. 2005).

Lay testimony regarding the safety of crosswalks is inadmissible in this case. The ability of crosswalks to enhance the safety of a parking lot is a matter outside the ken of a typical juror. Such opinions are based in scientific, technical, and specialized knowledge and require the testimony of a qualified expert. Lay opinions as to the safety of crosswalks lack probative value and would greatly prejudice Defendants. Therefore, Defendants' Motion is GRANTED, as to the whether crosswalks enhance safety, but not the existence or location of crosswalks, which is probative to the establishment of custom.

Davis v. Maute, 770 A.2d 36, 40, n.3 (Del. 2001); see Hr'g Tr. (Oct. 27, 2011) 30:15-20.

See supra Part II.A.

2. Evidence regarding the prior existence of crosswalks is also irrelevant and inadmissible.

The Court has already informed the parties that the only circumstance under which the Court would consider allowing evidence regarding the prior existence of a crosswalk is if Defendants introduce evidence of a lack of accidents prior to the summer of 2006. Generally, evidence of a lack of prior accidents is only admissible where the proponent of the evidence lays a foundation demonstrating that "the physical circumstances prior to the accident were reasonably comparable to those in issue," and "the person offering the testimony is one who would, in the ordinary course of events, have either personal knowledge of the condition or that he is the person to whom reports as to accidents would ordinarily be made."

Hr'g Tr. (Oct. 28, 2011) at 20:13-21.

Wilmington Country Club v. Cowee, 747 A.2d 1087, 1096 (Del. 2000) (quoting Pippin v. Ranch House South, 366 A.2d 1180, 1183 (Del. 1976)).

Prior physical characteristics of property are relevant when the characteristics at the time of the cause of action are substantially similar to those of the proffered evidence. An analysis of similarity includes the type of invitee (i.e. someone who had never been on the property before), the time of day, and atmospheric and lighting conditions.

Id.

Id.

Evidence of a prior existing crosswalk is most certainly irrelevant unless and until Defendants proffer evidence of a lack of accidents prior to the summer of 2006. Even then, it may not be relevant, because whether a crosswalk existed prior to the date of Plaintiff's injury has no bearing upon whether the lack of a crosswalk was a hazardous condition on the date of Plaintiff's injury. Such evidence would be relevant if Plaintiffs contended Defendants adhered to a judicial or statutory standard of care prior to the incident. However, since no judicial or statutory standard of care exists as to crosswalk placement, whether a crosswalk existed at any point prior to the incident is irrelevant to the issues of this case.

See supra Part II.B.

See Delmarva Power & Light v. Stout, 380 A.2d 1365, 1367 (Del. 1977); Kaster v. Big Kahuna of Wilmington, Inc., 1999 WL 459135, *2 (Del. Super. Apr. 14, 1999).

Moving Defendants have conceded they will not introduce evidence of a lack of accidents prior to the summer of 2006. Under those circumstances, Defendants' Motion is GRANTED.

Defs.' Mot. ¶ 10.

3. Evidence of Plaintiff's location at the time of the accident is admissible, to the extent that evidence does not describe the location in reference to a prior existing crosswalk.

Oekos seeks for the Court to preclude statements or suggestions that Plaintiff was in the area previously occupied by a marked crosswalk at the time she was injured, on the basis that it would mislead the jury to conclude the accident would not have occurred if a crosswalk existed at the time of the accident. Plaintiffs specifically allege Defendants are negligent in that they failed to provide Plaintiff a crosswalk or other traffic control device on the property. The Court cannot preclude evidence tending to prove the precise claims Plaintiffs assert against Oekos. While the exact location of where a crosswalk would have existed the date of the incident at issue is a matter of speculation and inadmissible, evidence of Plaintiff's location when she was injured is probative in this case, as it would tend to establish whether the accident would not have occurred had a crosswalk existed. The inadmissibility of evidence regarding the prior existence of crosswalks alleviates Defendants' concerns of prejudice or misleading, because the jury cannot conclude Plaintiff would have been in an area where a prior crosswalk existed.Therefore, Defendants' Motion is DENIED, and proffered evidence of Plaintiff's location is admissible, to the extent that it does not describe a location in reference to a prior existing crosswalk.

Compl. ¶¶ e-g.

See supra Part II.B.2.

See Defs.' Mot. ¶ 5 ("To allow even a suggestion that Ms. Slicer was in the area previously occupied by a marked crosswalk could very well cause the jury to misleading[ly] conclude that the accident would not have occurred if there were a marked crosswalk at the time of the accident.")
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III. CONCLUSION

For all the foregoing reasons, Defendants' Joint Motion in Limine Regarding the Proffered Testimony of William Kunzman, P.E. is GRANTED, Defendants' Joint Motion in Limine Regarding the Proffered Testimony of Frederick G. Bremer, AIA is DENIED, and Defendants' Joint Motion in Limine Regarding the Proffered Testimony of Walter Kilareski, GRANTED. Defendants Able Associates', DLR Properties', and Kohl's Joint Motion in Limine Regarding Non-Expert Testimony Relative to Crosswalks is GRANTED, and Defendants Oekos Kirkwood LLC's and Oekos Management Corp.'s Motion in Limine to Preclude Certain Evidence and Trail Conduct Regarding Plaintiff's Location at the Time of the Accident is DENIED.

IT IS SO ORDERED.

____________

M. Jane Brady

Superior Court Judge