Can Retail, Hospitality and Restaurant Businesses Live Up to the Industry Standards Created by Plaintiff's Purported Experts?
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Can Retail, Hospitality and Restaurant
Businesses Live Up to the Industry Standards
Created by Plaintiff ’s Purported Experts?
Jennifer A. Hoffman
Marlow, Connell, Abrams, Adler, Newman & Lewis, P.A.
4000 Ponce de Leon Blvd, Suite 570
Coral Gables, FL 33146
(305) 446-0500
(305) 446-3667 [fax]
jhoffman@marlowconnell.com
Juliet A. Gridley, P.E., CSP
SEA Limited
13930 Lynmar Blvd.
Tampa, FL 33626
(813) 891-1448
(813) 814-1716 [fax]
JGridley@sealimited.comJennifer A. Hoffman is a partner in the law firm of Marlow, Connell, Abrams, Adler, Newman & Lewis, P.A. in Coral Gables, Florida. She concentrates her prac- tice in insurance coverage defense and litigation of general liability claims including premises liability, negligent security, product liability and high exposure claims. Juliet A. Gridley received her Bachelor of Science degree in Civil Engineering from the University of South Florida. She performs structural inspections, founda- tion and roof investigations, water intrusion evaluations, vibration damage analysis, egress evaluations, and workplace accident assessments. In addition to civil engi- neering projects, Ms. Gridley performs industrial hygiene/air quality investigations and workplace accident investigations. She is a Certified Safety Professional (CSP), a Certified Mold Remediator (CMR), and a licensed mold assessor in the State of Flor- ida.
Can Retail, Hospitality and Restaurant
Businesses Live Up to the Industry Standards
Created by Plaintiff ’s Purported Experts?
Table of Contents
I.Introduction....................................................................................................................................................5
II.Legal Standard.................................................................................................................................................5
III.Plaintiff ’s Arguments......................................................................................................................................5
IV. Inspection Procedures....................................................................................................................................6
V. Security Measures—Lighting, Guards, Key Access, Etc...............................................................................6
VI. Use of “Industry” Standards and/or Regulations..........................................................................................7
VII. How to Defend Against These Tactics...........................................................................................................7
A. Cross Examination of Plaintiff ’s Expert.................................................................................................7
B. Retention of a Defense Expert................................................................................................................7
C. Use of Jury Instructions..........................................................................................................................8
VIII. Conclusion.......................................................................................................................................................8
Can Retail, Hospitality and Restaurant Businesses Live Up to the... ❖ Hoffman and Gridley ❖ 3Can Retail, Hospitality and Restaurant Businesses Live Up to the
Industry Standards Created by Plaintiff ’s Purported Experts?
I. Introduction
In premises liability cases, Plaintiff ’s counsel and their experts make every effort to convince the jury
that something more than a “reasonable” standard is required in keeping the premises safe. Plaintiffs hire
experts to analyze everything from floors to lighting to “mode of operation” in an effort to portray the defen-
dant as being unreasonable for lacking some safety measure that in reality goes above and beyond reasonable
as that term is interpreted under the law. This article will examine some of these theories in light of existing
standards and what the jury is instructed.
II. Legal Standard
A premises owner has a duty to maintain its premises in a reasonably safe condition for business
invitees. The premises owner also has a duty to use reasonable care to learn of any dangerous conditions on
its premises. See, Fetterman and Assoc. v. Friedrich, 69 So.3d 965, 966 (Fla. 4th DCA 2011); Kmart v. Bassett,
769 So.2d 282 (Ala. 2000); McCullar v. Boyd Tunica, Inc., 50 So.3d 1009 (Miss.Ct.App. 2011). An issue that
often arises in premises cases that requires the use of an expert involves the discovery of a dangerous condi-
tion about which the premises owner was unaware. It is then incumbent upon the plaintiff to prove that the
premises owner should have know of the dangerous condition through proper inspection procedures and the
condition had existed for such a length of time that upon reasonable inspection it would have been discov-
ered. See, Price v. Smith’s Food and Drug Centers, Inc., 252 P.3d 365 (Utah Ct. App. 2011); West v. KKI, LLC, 300
S.W.3d 184 (Ken.Ct.App. 2010); Farrar v. Sabine Management Corp., 2011 WL 3524204 (Tex.Ct.App. 1st Dist.
2011).
III. Plaintiff’s Arguments
Plaintiffs like to argue that a defendant’s position that “Safety is everyone’s responsibility” makes
safety no-one’s responsibility. So how does the plaintiff prove his case that you, the premises owner, breached
your duty of care? Generally, a defendant’s inspection procedures and whether they are adequate is a ques-
tion of fact and does not necessarily require expert testimony. See, Sadri v. WFM-WO, Inc., 2011 WL 6780871
(W.D.Wash.) (Plaintiff not require to produce expert testimony that Whole Foods inspection procedures
failed to meet standard of care to avoid summary judgment.); Farrar v. Sabine Management Corp., 2011 WL
3524204 (Tex. App. Houston) (expert testimony not necessary to prove causation between hazardous condi-
tion and accident where a layperson’s common understanding enables him/her to determine, with reasonable
probability, causal relationship.) However, in order to really prove their case, a plaintiff may hire an expert
to analyze every aspect of your premises that may have possibly contributed to the incident including floors,
lighting, inspection procedures and your accident history. These experts come from a variety of different fields
including engineering, “safety”, construction, retail displays and operations. The expert will review the defen-
dant’s company documents and prior incident history with a fine-toothed comb in order to form the opinion
that the defendant was negligent. The plaintiff ’s expert will attempt to create an alternate reality in which the
defendant has an employee stationed at every possible location just watching for hazardous conditions and
argue that it is unreasonable not to follow this standard. How does the defendant counter these arguments?
Can Retail, Hospitality and Restaurant Businesses Live Up to the... ❖ Hoffman and Gridley ❖ 5IV. Inspection Procedures
Do you have “inspection procedures” requiring your employees to look for hazardous conditions?
Are they written? Are they documented? Are they followed? Constructive knowledge of a hazard can be estab-
lished by showing that there was an employee in the immediate area and they could have discovered that haz-
ard easily and removed it. Plaintiffs may also attempt to show constructive knowledge of a hazard by offering
evidence that the premises owner did not use reasonable care in inspecting the premises. In Georgia, the jury
“’may infer’ constructive knowledge unless the owner or occupier of the premises shows ‘not only that it had
a reasonably inspection program in place, but that such program was actually carried out at the time of the
incident.’” See, Taylor v. Americasmart Real Estate, LLC, 651 S.E.2d 754, 759 (Ga.Ct. App. 2007) quoting Kmart
Corp. v. Jackson, 521 S.E.2d 93 (Ga. 1999). Inspection logs can be a “double-edged sword.” The logs can pro-
vide evidence of knowledge, or lack or knowledge, but they also provide evidence of reasonable care. See, Price
v. Smith’s Food and Drug Centers, Inc., 252 P.3d 365 (Utah Ct.App. 2011).
Even if the plaintiff presents evidence that the inspection procedures were not adequate and or not
followed, the plaintiff still has to present evidence that this failure caused or failed to prevent the plaintiff ’s
accident. For example, in Fetterman and Assoc. v. Friedrich, 69 So.3d 965 (Fla. 4th DCA 2011), the plaintiff was
injured when the chair in which he was sitting collapsed. The plaintiff offered expert testimony that due care
required the defendant to inspect the chair every six months and that such inspection would have revealed the
defect in the chair. However, the expert failed to offer evidence as to how long before the accident such inspec-
tion/testing of the chair would have been effective. Thus, the plaintiff ’s jury verdict was reversed and directed
verdict entered for defendant. See also, Kmart Corp. v. Bassett, 769 So.2d 282 (Ala. 2000) (Kmart’s policy of
not have preventative maintenance program with door company for automatic doors and waiting to call until
door needed repair or maintenance, standing alone, not sufficient evidence of negligence.).
Thus, just because the plaintiff has an expert who criticizes the defendant’s procedures this does not
lead to the foregone conclusion that the defendant was negligent and caused the plaintiff ’s accident.
V. Security Measures—Lighting, Guards, Key Access, Etc.
In addition to general premises case involving hazardous conditions, dealing with a plaintiff ’s expert
in negligent security cases can be challenging. In most negligent security cases, plaintiffs will hire a security
expert to examine the crime grids surrounding the premises and utilize this information as a spring board to
examining the types of security measures the premises owner took to prevent third party criminal attacks.
Prior acts of crime on the premises itself is not always indicative of the types of measures that these experts
claim should have been implemented. The argument being that it was only a matter of time before crime
came to your premises based on what was going on in the neighborhood around you. As with other experts
however, these opinion need to be based on more than just “taking the expert’s word for it.” When a plain-
tiff ’s expert proposes that certain security measures would have prevented the particular third party attack on
the plaintiff, the expert’s opinion must be based on sufficient facts. The expert is not permitted to speculate.
In Saelzler v. Advanced Group 400, 25 Cal.4th 763 (2001), the California Supreme Court in entering summary
judgment for the defendant premises owner, stated:
In short, plaintiff cannot prove that defendants’ omissions were a substantial factor in causing
her injuries, and no proper basis exists for shifting the burden of proof on that issue to defend-
ants. Plaintiff has had ample opportunity, through pretrial discovery, to marshal evidence show-
ing that defendants’ asserted breach of duty actually caused her injuries. The evidence at hand,
however, merely shows the speculative possibility that additional daytime security guards and/
6 ❖ Retail and Hospitality Litigation and Claims Management Seminar ❖ May 2012or functioning security gates might have prevented the assault. Plaintiff ’s evidence is no less
speculative because she offered a security expert’s testimony. Because he was equally unaware
of the assailants’ identities, his opinion regarding causation is simply too tenuous to create a tri-
able issue whether the absence of security guards or functioning gates was a substantial factor in
plaintiff ’s assault.
Id. at 781.
Thus, as with inspection procedures, simply because the plaintiff ’s expert sets forth an optimal plan
for the security of your premises does not necessarily lead to a finding of liability. The measures must still be
reasonable and the plaintiff ’s expert must show that the measures, if taken, would have prevents the attack in
that particular case.
VI. Use of “Industry” Standards and/or Regulations
Generally, a violation of an industry standards, regulations, building codes, ordinances etc, may be
considered as evidence of negligence but is not negligence per se. Conversely, “compliance with regulations,
directives or trade custom does not necessarily eliminate negligence but instead simply constitute evidence for
jury consideration” with other facts and circumstances. See Howard v. Omni Hotels Management Corp. 2012
WL 91360 (Cal.App. 4th Dist.) quoting Hernandez v. Badger Construction Equipment Co., 28 Cal.App.4th 1791,
1830-31, 34 Cal.Rptr.2d (1998). The challenge is making the distinction for the jury.
The defendant can utilize industry standards in its favor by showing that the plaintiff ’s expert’s opin-
ion is not supported by industry standards. For example, in Nelson v. Piggly Wiggly Central, Inc.¸701 S.E.2d
776 (S.C.Ct. App. 2010), the plaintiff was injured when her grandmother drove her car over a wheel stop and
pinned her against the building. The plaintiff presented an expert with an alternative parking lot design that
he claimed would have been safer. The court found that the plaintiff ’s expert’s opinion was “insufficient to cre-
ate a question of fact as to [the premises owner’s] duty to conform to any of those designs.]” The expert set
forth his preferences of design rather than “the requirements of any law, ordinance, or recognized industry
safety standard.” Id. at 781.
VII. How to Defend Against These Tactics
A. Cross Examination of Plaintiff’s Expert
The plaintiff ’s expert’s opinion, to be admissible, must be based upon sufficient facts and not mere spec-
ulation, conjecture or the expert’s subjective interpretation of the facts. See Hanson v. Greystar Development &
Construction, LP, 317 S.W.3d 850, 854 (Tex.Ct. App. 2010) (“An expert’s simple ipse dixit is insufficient to estab-
lish a matter; rather, the expert must explain the basis of his statements to link his conclusions to the facts.”).
Prior to the deposition of the plaintiff ’s expert counsel should review all applicable codes, regula-
tions, ordinances etc that have been cited or referred to by the plaintiff ’s expert. Often, counsel can find other
aspects of these publications that may counter the plaintiff ’s expert’s opinions. In addition, review applicable
statutes that may require compliance with regulations that may have been overlooked by the expert. This is an
area where a consultant can be helpful.
B. Retention of a Defense Expert
When do you retain your own expert to counter the plaintiff ’s expert? Oftentimes, retaining an
expert as a consultant to assist in formulating cross examination of the plaintiff ’s expert is sufficient. In addi-
Can Retail, Hospitality and Restaurant Businesses Live Up to the... ❖ Hoffman and Gridley ❖ 7tion, a consulting expert can provide you with preliminary opinions before disclosures to assess the defen-
dant’s potential liability. Consideration should be given to the expense versus the benefit achieved through
the use of the defense expert. Of course, there are cases where the use of a defense expert would be necessary
where certain engineering or scientific evidence needs to be explained to the jury.
C. Use of Jury Instructions
Where the plaintiff and the plaintiff ’s expert is relying on alleged violations of “industry standards”,
internal operating procedures, regulations, or ordinances to prove negligence it is important to request a jury
instruction. The defendant should ask the court to instruct the jury that non-compliance with any alleged
standard is not evidence of negligence rather it is other evidence to be considered by the jury in making a
determination of negligence. See, Sorber v. Wal-Mart Stores, Inc., 2000 WL 766123 (Iowa) (a party’s compli-
ance or non-compliance with an unrecognized industry standard of care is evidence of negligence and is not
conclusive on the issue of ordinary care.); Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir.
1975) (“Compliance or noncompliance with such custom, though not conclusive on the issue of negligence, is
one of the factors the jury may consider in applying the standard of care.”).
Of course, the converse is true as well. Compliance with a standard is not conclusive evidence that
the defendant was not negligent but only other evidence for the jury to consider. Carlson v. The Construction
Company, 761 N.W.2d 595 (S.D. 2009) (it is proper to instruct the jury that compliance with certain regula-
tions can be considered as evidence of the exercise of reasonable care but is not conclusive on the issue of neg-
ligence.).
VIII. Conclusion
In conclusion, when preparing the defense of your premises case, anticipate the plaintiff ’s expert’s
use of standards, ordinances, regulations and other possible applicable codes. Defense counsel should have
their own copy or access to copies of certain commonly used standards such as the NFPA, building codes,
ordinances, ASTM and ANSI standards. Plaintiff ’s experts often provide copies of only those portions they
find applicable while not addressing others than would undermine their opinions. Be aware of the standards
when preparing for the deposition of the plaintiff ’s expert. Consulting with your own expert prior to the depo-
sition if very beneficial. Be sure to have copies of all written policies of the defendant and investigate compli-
ance prior to your witnesses being deposed or producing any documents. Analyze the issues with an eye not
only towards compliance but as to causation as well. At trial, be prepared with proposed jury instructions to
keep the jury on track and focused on the defendant’s legal duty.
8 ❖ Retail and Hospitality Litigation and Claims Management Seminar ❖ May 2012You can also read
