Saldana v. Kmart Corp., s. 99-4055

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation260 F.3d 228
Decision Date23 July 2001
Docket NumberNos. 99-4055,00-3749,s. 99-4055
Parties(3rd Cir. 2001) MARIE SALDANA, v. KMART CORPORATION MARIE SALDANA, APPELLANT IN NO. 99-4055 LEE J. ROHN, <A HREF="#fr1-*" name="fn1-*">* APPELLANT IN NO. 00-3749

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260 F.3d 228 (3rd Cir. 2001)
Nos. 99-4055, 00-3749
Argued May 18, 2001
Filed July 23, 2001


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Copyrighted Material Omitted

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K. Glenda Cameron, Esquire (Argued) Lee J. Rohn, Esquire Law Office of Lee J. Rohn 1101 King Street, Suite 2 Christiansted, St. Croix USVI, 00820 Attorney for Appellants

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Andrew C. Simpson, Esquire (Argued) Suite 1 5025 Anchor Way, Gallows Bay Christiansted, St. Croix USVI, 00820 Attorney for Appellee

Before: McKEE, Rendell and Barry, Circuit Judges


Barry, Circuit Judge.

This case arises from a slip-and-fall suffered by Marie Saldana at a Kmart store on St. Croix. Ms. Saldana appeals the grant of summary judgment against her while her attorney, Lee Rohn, Esq., appeals the imposition of sanctions against her for her out-of-court vulgar language in a handful of cases, including this one. The tortuous procedural history that has led to the consolidation of a slip in a puddle of car wax with sanctions for vulgar language need not detain us. Suffice it to say that we have jurisdiction under 28 U.S.C. S 1291 and will affirm the District Court's December 20, 1999 decision with respect to Saldana, but will reverse with respect to Rohn.


Marie Saldana alleged in her complaint that she slipped in a puddle of car wax in a Kmart aisle on April 20, 1995 and suffered injury. No one saw the wax before Saldana fell, no one else slipped in the puddle, and Saldana did not see tracks of wax near the puddle that might indicate someone else had stepped in the spill. Saldana stated that after she fell, she noticed that the puddle measured 24 inches across and was covered with a layer of light brown dust. A Kmart employee, Eugenie Williams, had walked down the same aisle less than three minutes prior to Saldana's fall and saw no wax on the floor at that time. After Saldana fell, Williams spotted an unbroken, completely empty bottle of wax on the floor with its top off.

Kmart brought a motion for summary judgment. In response, Saldana offered no evidence that any Kmart representative knew of the spill. Rather, she attempted to show constructive notice through the expert testimony of Rosie Mackay, proffered as a safety engineer, and her own testimony regarding the dust on the puddle. Saldana offered two reports by Mackay: an initial report dated January 1997, and a supplemental report dated April 1997. In the January report, Mackay concluded that "K-Mart was negligent in that there was a spill, and it was not cleaned up. Ms. Saldana was the unfortunate victim of this act of poor housekeeping . . . ." App. at 361. Mackay based this conclusion in part on safety regulations promulgated pursuant to the Occupational Safety and Health Act ("OSHA"). Mackay's April report detailed the results of "pouring tests" she conducted to determine the length of time it would take for the same brand of wax to escape from an inverted bottle and form a 12-inch puddle on her kitchen floor. At her deposition, Mackay discussed additional experiments carried out in June 1997 involving open bottles lying on their sides. The District Court found Mackay's opinions and tests to be "irrelevant under Rule 402, . . . confusing or misleading under Rule 403, and . . . technically (scientifically) unreliable under Rule 702." Saldana v. Kmart, 84 F. Supp.2d 629, 636 (D.V.I. 1999). The Court also found that any observation of dust on the puddle after Saldana's fall was not relevant to the state of the wax before the fall. Id. Thus, the Court granted Kmart's motion for summary judgment.

When reviewing an order granting summary judgment, we exercise plenary review and apply the same test a district court applies. Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). "Under Federal Rule of Civil Procedure

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56(c), that test is whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Id. (quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). "In so deciding, a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Id. A court should find for the moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of the . . . pleading"; its response, "by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. "Such affirmative evidence -- regardless of whether it is direct or circumstantial -- must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989).

Because Saldana does not allege actual notice on the part of Kmart, she would ultimately be required to show that the wax was "on the floor long enough to give [Kmart] constructive notice of this potential `unreasonable risk of harm.' " David v. Pueblo Supermarket, 740 F.2d 230, 234 (3d Cir. 1984) (quoting Restatement (Second) of Torts S 343 (1965)). Although it is uncontested that the wax was on the floor at the time of the fall, "the mere presence of the foreign substance does not establish whether it had been there a few seconds, a few minutes, a few hours or even a few days before the accident." Id. Circumstantial evidence that a substance was left on the floor for an inordinate period of time can be enough to constitute negligence; where a plaintiff points to such evidence, it is a question of fact for the jury whether, under all the circumstances, the defective condition of the floor existed long enough so that it would have been discovered with the exercise of reasonable care. Id. at 236. Put another way, Saldana must point to evidence that would allow the jury to infer that the wax was on Kmart's floor for some minimum amount of time before the accident. Only then could a jury begin to consider whether under the circumstances the amount of time indicated by the evidence establishes constructive notice.

To show that the wax was on Kmart's floor an unreasonable length of time, Saldana relied chiefly on the information submitted by her expert, Rosie Mackay. As the District Court noted, Federal Rule of Evidence 702 imposes three major requirements as to expert opinions: (1) the witness must be an expert; (2) the procedures and methods used must be reliable; and (3) the testimony must "fit" the factual dispute at issue so that it will assist the jury. See Kumho Tire v. Carmichael, 526 U.S. 137, 149-50 (1999); Daubert v. Merrell Dow Pharms., 509 U.S. 579, 590-93 (1993); United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985). Even if the evidence offered by the expert witness satisfies Rule 702, it may still be excluded if its "probative value

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is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed. R. of Evid. 403.

We will assume arguendo, as did the District Court, that Mackay meets the requirements of an "expert." Even so, Mackay's reports and conclusions would not be admissible. In her January report, Mackay concluded that, although Kmart purports to follow safety procedures similar to certain OSHA regulations, "K-Mart was negligent in that there was a spill, and it was not cleaned up." App. at 361. Kmart "allowed" the wax to spill, Mackay wrote, and therefore "failed to use good, logical, prudent safety precautions." App. at 362. These conclusory statements essentially attempt to force upon Kmart a strict liability standard based on Mackay's reading of OSHA, a regulatory scheme far different from the applicable law described above. To be sure, in Rolick v. Collins Pine Co. , 975 F.2d 1009 (3d Cir. 1992), this Court found admissible an expert's opinion that the defendant violated OSHA standards. Id. at 1014. That case, however, applied Pennsylvania law, and we noted that Pennsylvania courts had previously borrowed OSHA regulations for use as evidence of the standard of care owed to plaintiffs. Id.

This case is guided by the Restatement of Torts, which governs in the Virgin Islands in the absence of a local statute. 1 V.I.C. S 4. Under the Restatement,"[t]he court will not adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively . . . to protect a class of persons other than the one whose interests are invaded." Restatement (Second) of Torts, S 288; see also Restatement (Second) of Torts S 286, Illust. 1 (safety statute for protection of employees does not define standard of care owed to business invitee). As we have stated, Kmart is liable in this negligence action only if it knew or should have known of the dangerous condition but failed to take reasonable steps to correct it. David, 740 F.2d at 234. Thus, Mackay's opinion that Kmart violated worker safety requirements would not assist the fact finder in deciding whether...

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