Ackerman v. U-Park, Inc.

• Decision Date: 03 March 2020
• Docket Number: No. 19-1814,19-1814
• Citation: 951 F.3d 929
• Parties: Tonia ACKERMAN ; Dennis Ackerman, Plaintiffs - Appellants v. U-PARK, INC., Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

951 F.3d 929

Tonia ACKERMAN ; Dennis Ackerman, Plaintiffs - Appellants

v.U-PARK, INC., Defendant - Appellee

No. 19-1814

United States Court of Appeals, Eighth Circuit.

Submitted: November 13, 2019

Filed: March 3, 2020

Counsel who presented argument on behalf of the appellant was Guy Richard Cook, of Des Moines, IA. The following attorney(s) appeared on the appellant brief; Sean Michael Corpstein, of Des Moines, IA.

Counsel who presented argument on behalf of the appellee was Raymond E. Walden, of Omaha, NE. The following attorney(s) appeared on the appellee brief; Michael T. Gibbons, of Omaha, NE.

Before GRUENDER, KELLY, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

Tonia Ackerman ("Ackerman") alleged that she suffered permanent injuries from a fall caused by the negligent removal of ice and maintenance of an asphalt parking lot operated by U-Park in Omaha, Nebraska. Her husband sought damages for loss of consortium. The district court¹ granted U-Park’s motion in limine to exclude expert Philip Wayne’s opinions on causation and granted U-Park’s motion for summary judgment. The Ackermans appeal both decisions. We affirm.

I. Background

U-Park operates several parking lots in Omaha, Nebraska, including an asphalt lot located at 555 N. 13 Street ("Lot 13"). On February 13, 2016, Ackerman paid the $5.00 fee to park her car in Lot 13 so she could attend her daughter’s volleyball tournament being held at the adjacent CenturyLink Center. After parking, Ackerman alleged that she "walked approximately one car length when she slipped and fell on a patch of black ice that she was unable to see because it blended into the blacktop." Compl. ¶ 9. Black ice is "thin hard ice which is transparent and often difficult to see, esp. as deposited on a road in cold weather." Oxford English Dictionary Online, https://www.oed.com/view/Entry/19670?redirectedFrom=black+ice#eid19401002 (last visited January 29, 2020).

Joseph Schmitt, a part-owner of U-Park, was collecting parking fees at the time of Ackerman’s fall. Schmitt testified that he was unaware of the presence of ice in the parking lot. Approximately 30 minutes after Ackerman fell, Schmitt took photographs of the area and spread ice melt. In the photographs, the viewer can see asphalt, the rear of a car, a yellow line marking the left side of the parking space, three large yellow numbers identifying the stall number, and an irregular circular shape that is plainly darker than the rest of the surrounding asphalt. No precipitation occurred in Omaha in the six days before Ackerman fell. The approximate temperature when Ackerman fell was 17 degrees. Since no one knew how or when the ice originated, each side retained an expert to assist with answering those questions.

The Ackermans retained Philip B. Wayne as their expert. Wayne has a bachelor’s degree in business administration with a concentration in economics. He has managed numerous properties for 50 years. In the report he prepared for this case, Wayne opined that Ackerman slipped and fell on black ice that had formed in a "birdbath." Although neither Ackerman nor Schmitt noted the existence of a "birdbath" at the time of accident, Wayne reached his conclusion that a "birdbath" existed because, in his opinion, there had been "virtually a complete lack of maintenance to the parking lot surface" and that the "condition has been in process for many years, and any effort to make repairs for the most part are non-existent." He further concluded that "[f]rom the deplorable condition of the lot’s surface, it is no stretch that other areas of maintenance functions were left undone that includes effective ice control."

Wayne based his opinions on three visits to the parking lot. The first took place on March 8, 2018, over two years after Ackerman fell. On this visit, Wayne rolled a volleyball across the lot to track the direction water flowed. He also looked for staining on the asphalt where water had previously been. He observed several indentations in the asphalt where water could pool in "birdbaths" near where Ackerman fell. Wayne took three videos during his visit to the parking lot, but only one showed a green ball rolling and the other two were obscured by Wayne’s hand. Shortly after this visit, Wayne returned to the lot after a rainstorm and drove through to see where the water was flowing and where the asphalt was wetter. He did not take any photographs or videos on this visit. On the last visit on May 17, 2018, Wayne took 15–17 photographs of the parking lot. Other than providing a general overview of the condition of the parking lot at that time and area near where Ackerman fell, none of the photographs focus on the actual location where Ackerman fell.

The Ackermans brought claims for negligence and loss of consortium. U-Park moved to exclude Wayne’s expert opinions on asphalt deterioration/causation and moved for summary judgment. The district court granted both motions. The Ackermans appeal both issues.

II. Discussion

We review the exclusion of expert opinions for an abuse of discretion. Lawrey v. Good Samaritan Hosp., 751 F.3d 947, 951 (8th Cir. 2014). Because we review de novo the evidence and testimony presented during summary judgment proceedings in the light most favorable to the non-moving party, we cast the facts and reasonable inferences of this case in the light most favorable to the plaintiffs. Hickerson v. Pride Mobility Products Corp., 470 F.3d 1252, 1256 (8th Cir. 2006).

A. Exclusion of Wayne’s Expert Opinion

Under Federal Rule of Evidence 702, an expert opinion is admissible 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 expert has reliably applied the principles and methods to the facts of the case." When determining the reliability of an expert’s opinion, a court examines the following four non-exclusive factors: (1) whether the expert’s theory or technique "can be (and has been) tested;" (2) "whether the theory or technique has been subjected to peer review and publication;" (3) "the known or potential rate of error;" and (4) "general acceptance." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593–94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). These factors are not exclusive or exhaustive and the court may tailor its inquiry to fit the particular facts of a case. Presley v. Lakewood Eng’g & Mfg. Co., 553 F.3d 638, 643 (8th Cir. 2009) (citations omitted). As the gatekeeper, the district court’s role is to discern "expert opinion evidence based on ‘good grounds’ from subjective speculation that masquerades as scientific knowledge." Glastetter v. Novartis Pharm. Corp., 252 F.3d 986, 989 (8th Cir. 2001).

The district court excluded Wayne’s expert opinion that Ackerman’s fall was caused by black ice that would not have existed but for the birdbath in the asphalt. The court found that Wayne’s opinion would not assist the trier of fact for the following reasons: (1) Wayne was not qualified to offer an opinion on asphalt deterioration or birdbath creation; (2) Wayne’s "testing" (observing asphalt stains; rolling a volleyball; and driving through the lot after a rain shower) was not reliable and his methodology failed to meet Daubert standards; and (3) Wayne’s theory that he can tell how long a birdbath existed "by reading the stains of asphalt like the rings of a tree" was unsupported.

Wayne’s expert opinion regarding the existence of a birdbath that caused black ice to form fails to comply with Daubert standards. It is indisputable that Wayne lacks academic qualifications so his ability to offer an expert opinion turns on his experience as a property manager as well as the bases for his opinion. While Wayne has broad experience in managing commercial property, his opinion is based on vague theorizing and amorphous general principles. Wayne’s first visit to the property occurred over two years after Ackerman fell. Despite his ultimate conclusion that Ackerman’s fall was caused by the presence of black ice forming in a birdbath, Wayne failed to take any photographs on that visit or any subsequent visit that would corroborate this theory. The photographs taken by Schmitt approximately 30 minutes after the accident do not show the presence of a birdbath-type depression in the asphalt. Neither Schmitt nor Ackerman noted any kind of depression, indentation, or defect in the asphalt. Lacking any evidence that a birdbath existed either at the time of the fall or when he visited the property over two years after the accident, Wayne asked the court to accept his ipse dixit that a birdbath existed at the time of Ackerman’s fall. In the absence of any record evidence that Wayne used reliable principles and methods or applied them reasonably to the facts of this case to form his opinion that Ackerman’s fall was caused by black ice forming in a birdbath, his opinion does not satisfy the Rule 702 standards for admissibility. The district court did not abuse its considerable discretion in excluding Wayne’s expert opinion on causation.

B. Summary Judgment

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). We may affirm a grant of summary judgment on any basis supported by the record. Beckley v. St. Luke’s Episcopal-Presbyterian Hosps., 923 F.3d 1157, 1160 (8th Cir. 2019). Because this is a diversity action, we apply the substantive law of the forum state, here Nebraska.

With regard to the standard of care owed to business invitees under Nebraska law, owners or occupiers of land are not insurers of their premises. Aguallo v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 82, 89 (2004) (quoting Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51, 57 (1996) ). Decades ago the Nebraska Supreme Court held that a business owner has no legal responsibility "to protect a customer against hazards which are...