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Ackerman v. U-Park, Inc.

United States District Court, D. Nebraska

March 20, 2019

TONIA ACKERMAN and DENNIS ACKERMAN, Plaintiffs,
v.
U-PARK, INC., Defendant.

          MEMORANDUM AND ORDER

          Robert F. Rossiter, Jr. United States District Judge

         Pending before the Court are defendant U-Park, Inc.'s ("U-Park") "Daubert Motion in Limine and Request for Hearing" (Filing No. 54) and Motion for Summary Judgment (Filing No. 51). Plaintiffs Tonia Ackerman ("Ackerman") and Dennis Ackerman (collectively, the "Ackermans") oppose and request hearings on both motions. For the reasons stated below, both motions will be granted without a hearing.

         I. BACKGROUND[1]

         U-Park owns several parking lots in Omaha, Nebraska, and leased the parking lot at issue in this case ("Lot 13"). Joseph Schmitt ("Schmitt"), part-owner of U-Park, was collecting parking fees at Lot 13 on February 13, 2016, when Ackerman parked her vehicle there to attend a nearby event. Ackerman alleges that as she walked away from her car, she "slipped and fell on a patch of black ice she was unable to see because it blended into the blacktop" on Lot 13.

         Lot 13 is surfaced with asphalt. Though the parties dispute whether U-Park or Lot 13's owner bears responsibility for the asphalt's condition, the parties agree U-Park was responsible for snow and ice removal on Lot 13 and that Schmitt personally repaired the asphalt on three prior occasions. Schmitt also did most of the snow and ice removal for Lot 13. He testified that he would check Lot 13 "just about every day," admittedly primarily to ensure patrons paid parking fees but also to inspect Lot 13 's condition. Though Schmitt typically conducts that inspection in the morning, Schmitt could not "specifically say" that he examined Lot 13 on the morning of February 13, 2016.

         No precipitation occurred in Omaha in the six days before February 13, 2016. Schmitt and Ackerman both confirmed the lack of precipitation and testified that day was very cold. Schmitt recollected Lot 13 was clear that day. Despite that, Ackerman states she fell on an ice patch in parking-stall number 153 ("Stall 153"). No. one witnessed Ackerman's fall, and she did not see any snow or ice prior to her fall, instead recalling that the ground looked like normal pavement. Ackerman asserts she slipped on "black ice," which the parties define as ice that you "can't see." Schmitt testified that he was unaware of ice in Stall 153 prior to Ackerman's fall. After Ackerman's fall, Schmitt took photographs (Exhibits 5 and 6) of Stall 153 and spread ice melt there. Neither party claims to know precisely how the ice originated, with theories ranging from patrons dumping water bottles to vehicles dripping slush.

         To help her answer that question, Ackerman retained Philip B. Wayne ("Wayne") of Philip B. Wayne Consultants, LLC. According to Wayne's deposition (Filing No. 57-3), report (Filing No. 57-3), and curriculum vitae (Filing No. 61-6), Wayne has previously testified as an expert and his career has concentrated in property management. He reports he refers to himself as a "forensic expert" because attorneys "frequently" refer to him as one and it "sounds pretty good." His report advises that he has "personally performed or supervised the regular inspection, maintenance, and repair including snow and ice removal/abatement on commercial parking lots that included within pedestrian walkways and drives."

         Presently, Wayne offers consulting, training, and expert-witness services under the "wide umbrella of property management." Wayne has a bachelor's degree in business administration with a concentration in economics. He served as an adjunct professor at the University of Nebraska-Omaha teaching topics related to property management. Wayne has never taught a class specifically on accident-risk assessment or abatement, but some of his courses had sections on avoiding lawsuits which included slips-and-falls. Though Wayne boasts publications on property-management topics, none focus on accident-risk assessment or abatement beyond including slips-and-falls in "a general heading" in lists of "items in which the propensity for landlords to be sued for poor actions is followed"- whatever that means.

         Wayne has managed numerous properties. Though he performed hands-on snow removal at those properties from '"69 to '74-'77," since that time, his involvement has been limited to supervising others or hiring contractors. In addition to property management, for a little over ten years, Wayne worked as a police academy instructor and taught "classes for landlords under the auspices of the police department" training the crime-control aspect of property management. Wayne has never owned or operated a snow-removal company.

         Wayne visited Lot 13 for the first time on March 8, 2018, over two years after Ackerman's fall. It is undisputed that the extent of Wayne's testing at Lot 13 was to "simply take a volleyball and roll it" and to observe "asphalt staining patterns." Wayne also testified he drove through Lot 13 shortly after a rain shower and saw water pooling in "birdbaths" around where Ackerman fell. Wayne defines a birdbath as "[a]ny depression where water is held." On May 17, 2018, Wayne took photographs of Lot 13 but did not take any pictures of Stall 153. Other than the photographs taken by Schmitt, Wayne viewed no photographic evidence of Lot 13's condition at the time of Ackerman's fall.

         Based on his volleyball roll and observations, Wayne concluded (1) there was "virtually a complete lack of maintenance in [Lot 13's] surface," (2) a birdbath existed in Stall 153 (and based on "the asphalt discoloration observed, this condition existed long before [Ackerman's fall]"), (3) Lot 13 's natural drainage path would allow for ice and snow to melt and drain towards the birdbath in Stall 153, and (4) black ice formed in the birdbath causing Ackerman's fall. Wayne posits, among other things, that an underground cable possibly caused the birdbath and opines that U-Park should have known not only about the birdbath's existence, but also its potential to accumulate water and freeze.

         II. DISCUSSION

         A. Motion in Limine

         To effectively rule on U-Park's Motion for Summary Judgment, the Court must first consider U-Park's motion to exclude Wayne's testimony as "irrelevant, unfounded in fact, and speculative," made pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Ackermans argue "Wayne's opinions are relevant, reliable, and will assist the jury in fact determinations." At this stage, the Court will consider Wayne's challenged testimony only as it is relevant to the Motion for Summary Judgment.

         1. Standard

         Federal law governs the admissibility of expert testimony in this diversity action.[2]See 28 U.S.C. § 1332(a); Urein v. Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir. 2005). The Ackermans bear the burden of showing admissibility by a preponderance of the evidence. Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). Rule 702 instructs:

         A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and ...

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