Laying Foundation for a Slip Resistance Opinion

Sometimes in slip and fall cases I see opponents retain and disclose expert opinions about slip resistance.  Do they have adequate foundation?

The Supreme Court of Nevada considered it in Stultz v. Bellagio, LLC, an unpublished decision.[1]  The plaintiff slipped and fell on a staircase.  The first trial resulted in a mistrial, the second in a defense verdict.  The plaintiff then appealed various issues, including whether the district court erred by excluding her liability expert, David Ingebretsen, from trial.  The Supreme Court affirmed.

First, the Court seemed to take issue with Mr. Ingebretsen’s qualifications.  The plaintiff did not present evidence “showing that Ingebretsen’s opinion was capable of being tested or that it had been tested.”  Mr. Ingebretsen “co-authored a textbook entitled Notes on Real-Time Vehicle Simulation, but the district court could reasonably conclude that the link between the subject matter of this textbook and his opinion with respect to the friction coefficient of the staircase where Stultz slipped is attenuated, at best.”  Although Mr. Ingebretsen was associated with a variety of biomechanical organizations, “it is not apparent from the record whether these organizations are representative of the scientific community or whether they would accept the type of opinion that Ingebretsen expressed regarding the staircase where Stultz slipped.”

Second, the Court took issue with Mr. Ingebretsen’s opinion itself.

The most problematic aspect of Ingebretsen’s proposed testimony was the friction coefficient experiment that he conducted in order to reach his opinion. He did not conduct his experiment on the staircase where Stultz slipped. Rather, he purchased a piece of stainless steel and bent it to form a nose shape. There was no opinion from Ingebretsen as to whether the angle and surface area of this exemplar matched the Bellagio staircase. Because the pair of flip-flops that Stultz was wearing at the time of the accident was not available, Ingebretsen used his own flip-flops to test the friction coefficient of his exemplar. Finally, it is unclear whether Ingebretsen used water to run his test on the steel exemplar and, if he did, whether the amount of water he used was similar to the amount of water that was on the Bellagio staircase at the time of Stultz’s accident. In sum, Ingebretsen’s opinion was so speculative and riddled with assumptions that it would not have been of assistance to the jury.

Thoughts to consider for your next slip and fall matter.

[1] No. 56164, 2011 Nev. Unpub. LEXIS 1215, 2011 WL 4527928 (Sep. 29, 2011).