Nelson v. Costco Wholesale Corporation et al
Filing
77
OPINION by Judge Beaton on 6/16/2021. The Court GRANTS in part Costco's motion to strike the testimony of Nelson's experts (DN 60 ), GRANTS in part Nelson's motion to exclude the testimony of Costco's expert (DN 62 ), and GRANTS Costco's motion for summary judgment (DN 59 ).cc: counsel (JM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
STEVEN NELSON
PLAINTIFF
v.
No. 3:18-cv-278-BJB-RSE
COSTCO WHOLESALE CORPORATION, ET AL.
DEFENDANT
MEMORANDUM OPINION AND ORDER
After a visit to Costco, Steven Nelson drove one of the store’s electric scooters to the edge
of a curb that divided the sidewalk from the parking lot. The scooter tipped over the curb, spilling
Nelson from the sidewalk onto the parking lot. No one saw the accident, and no one even purports
to know exactly how or why it happened.
Nelson suffered injuries that required treatment at a nearby hospital. To recover damages
for his injuries, pain, and suffering, he sued Costco. His lawsuit alleges that the store breached the
duty of care it owed customers by creating an unreasonably dangerous condition on its premises—
specifically, a convergence of the sidewalk and curb that was unsafe for scooters. In support of
Nelson’s claim, Jerry Birnbach, a “Store Designer, Site Planner and Retail Safety Expert,”
proposes to opine that “Costco did not construct a curb cut in conformance with” local, industry,
and ADA regulations given “the utilization of the exterior sidewalk” by scooters, and that this noncompliance caused the accident. Birnbach Report (DN 65-6) at 1. Costco disclosed its own expert
witness, Catherine Peterman, who would testify that Costco’s design is compliant, safe, and did
not contribute to Nelson’s fall.
Now that discovery is complete, the parties have filed three motions resolved in this
opinion. First, Nelson asks the Court to limit Peterman’s testimony to avoid improper legal
conclusions. Second, Costco seeks to disallow Birnbach’s testimony entirely. And third, Costco
requests summary judgment (primarily) on the ground that without Birnbach’s testimony, no
record evidence would support a jury finding that a dangerous condition on its premises caused
Nelson’s injury.1
Federal Rule of Evidence 702 requires that expert witnesses be qualified in their areas of
testimony, and that their testimony provide helpful and reliable opinions based on facts and data.
Aspects of both experts’ proposed testimony fall short of that standard here. Birnbach, in
particular, is unqualified to render opinions on scooter and design safety, and unable to identify a
reliable, factual basis for other opinions regarding Costco’s compliance and duty of care with
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Costco’s Daubert motion also asks the Court to exclude or limit the testimony of Nelson’s medical expert,
Dr. Changaris. Costco’s objections primarily relate to the weight due his opinions in light of other alternate
causes that Dr. Changaris didn’t purport to rule out. Resolving that dispute, however, is unnecessary to
dispose of the pending motions.
respect to this accident. Peterman, by contrast, directly applied relevant code and industry
standards to the spot in question. Given this record—or lack thereof—Nelson lacks any support
for his position that Costco breached a duty by “creat[ing] a[n] unsafe and hazardous shopping
venue.” Id. at 6. Therefore, the Court grants Costco’s motion to exclude, in part, and grants
Costco’s motion for summary judgment.
RECORD EVIDENCE
The parties do not contest what happened to Nelson at Costco—only whether Costco’s
sidewalk was unreasonably dangerous and caused Nelson’s injury. The events described here are
drawn from the depositions taken in this case and cited in the parties’ briefs.
Steven Nelson and a friend, Breck Holt, went shopping at a Costco in Louisville in April
2017. Nelson Deposition (DN 59-3) Tr. 8:2–4. Nelson drove a motorized scooter that Costco
supplied at the entrance of the store. Id. at 39:2–4. After they finished shopping, Holt walked to
retrieve his vehicle from the parking lot. Nelson Dep. at 8:10–12. Nelson remained on the scooter
near the store’s entrance. At some point while he waited, Nelson drove the scooter 20 or 30 feet,
where the scooter tipped over the edge of the concrete sidewalk onto the parking lot a few inches
below. Holt Deposition (DN 64-7) Tr. 20:21–22. Nelson fell out of the scooter onto the ground,
broke his leg, and possibly suffered a traumatic brain injury. Response to the Motion for Summary
Judgment (“MSJ Response”) (DN 64) at 4–5. An ambulance took Nelson to a nearby hospital for
treatment. Id. at 5.
No eyewitnesses saw the accident. No surveillance footage captured it. And Nelson
himself cannot recall the accident. Nelson Dep. at 8:13–14. He does remember that he was capable
of operating the scooter, which was functioning properly that day. Id. at 40:17–41:1.
Nelson and Holt had shopped at this Costco several times without incident. Id. at 39:12–
17. Afterwards, Holt typically pulled the car around while Nelson waited for him by the store
entrance. On the day of the accident, however, a minivan was parked where the pair typically
loaded Holt’s car: alongside the store’s entryway, where the sidewalk runs level with the parking
lot for several car lengths. MSJ Response at 4. The minivan blocked a portion of the entryway,
and Nelson drove the scooter away. Birnbach Addendum (DN 41-1) at Figure 1; Nelson Dep. at
44:10–13.
Although Nelson doesn’t remember what happened, he would’ve driven past a garage door
providing access to a storage area for shopping carts. Past the carts, the pathway sloped back up
approximately 4 to 6 inches from the level of the parking lot to the level of the sidewalk. There
the sidewalk resumed, forming a vertical curb of 4 to 6 inches in height, dividing the higher
sidewalk from the lower parking lot. Birnbach Addendum at Figure 3D. The curb was painted
red. Peterman Deposition (DN 62-2) Tr. at 14:24–25.
This is where Nelson fell, and where the evidentiary clues run out. The parties each
speculate about what caused Nelson to fall. Birnbach believes that Nelson drove up the sloped
section of the sidewalk, straddling the curb: with one side of his scooter remaining on the parking
lot asphalt and the other ascending to the raised sidewalk. As the curb rose, according to Birnbach,
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the scooter must have tilted to one side, eventually tipping over and causing Nelson to fall onto
the lower parking-lot surface. Birnbach Deposition (DN 65-4) at 49:5–50:22. Costco, for its part,
agrees that Nelson’s cart tipped over in this general vicinity, but contends that no evidence tells us
how that happened. Motion for Summary Judgment Memorandum (“MSJ”) (DN 59-1) at 5.
After Nelson fell, Holt returned and asked what had happened. Nelson responded that “he
guessed he drove off the curb,” according to Holt. Holt Dep. at 36:5–18. (Nelson, again, does not
remember this—or anything else until he traveled by ambulance to the hospital.) Nelson Dep. at
8:14–24.
So we know Nelson’s scooter tipped over the side of the curb, but we don’t know how or
why. The question on summary judgment is whether the record would support a finding that
Costco created an unreasonably dangerous condition by designing the store’s exterior in this
manner and allowing Nelson to use the scooter near the curb where he fell. MSJ Response at 1;
MSJ at 6.
THIS LITIGATION
Nearly one year after the incident, Nelson filed a complaint against Costco in Jefferson
(Ky.) Circuit Court. State-Court Complaint (DN 1-2) at 1. Costco timely removed the case to
federal court on the basis of diversity jurisdiction. Notice of Removal (DN 1) at 1 (citing 28 U.S.C.
§§ 1332(a), 1441(b)). During discovery, Nelson disclosed Jerry Birnbach as an expert regarding
Costco’s duty of care and breach—essential elements of Nelson’s negligence claim—and Dr.
David Changaris as an expert on Nelson’s neurological injuries.
Birnbach’s expert report reached four conclusions:
1. “It was incumbent upon the Costco store to follow its policy and Industry Standards, to
conduct timely sidewalk inspections during operating store hours, identify hazardous
conditions, and provide an immediate cure.”
2. “According to the well-known, generally accepted industry safety standards[,] protocols
and procedures, this Store Manager’s responsibility to oversee and provide a safe and
hazard-free shopping venue for their customers was not complied with.”
3. “This is a deviation from well-recognized, generally accepted and Retail Industry wide
parking lot and sidewalk safety practices, which included the minimal and reasonable
customs and practices in the industry, as well as, ADA and IBC local building code policies
and procedures, as discussed in this report.”
4. “At the time of the sidewalk and parking lot design review process, the foreseeable hazard
to direct scooters and customers in the final path of travel. [sic] Additional compliant curb
cuts, level landings, curb construction, painted walkways and curb surfaces, sidewalk
widths, signs q [sic] calling out for caution when operating the scooter in the parking lot
were not adequately addressed in the final design build out.”
Birnbach Report at 7.
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As for causation, Birnbach offered that Nelson “incurred an incident” “[a]s a result of a
sidewalk ramp design defect including code violations, curb cut irregulates [sic], non-compliant
exterior circulation patterns, lack of (on the scooter itself) adequate safety notice on the scooters
for operation and use, lack of visual notice of hazardous sidewalk conditions, and non-compliance
to the local Building Code and the American Disability Act regulations.” Birnbach Report at 1.
No single factor constituted an unreasonably dangerous condition, in Birnbach’s view; rather, the
“totality of the circumstances” created the dangerous “interaction” between the cart and the curb.
Oral Argument Transcript (DN 75) at 3–4. Nelson’s counsel explained the theory of his case as
resting on the aggregate effect of these issues, leading Nelson to operate the scooter in a dangerous
area, without adequate warning, and ultimately fall onto the parking lot. Id. at 4, 14–15.
Costco’s expert, Catherine Peterman, stated in her report and deposition testimony that
Costco met applicable industry standards of safety and did not allow a hazardous condition to exist
that caused Nelson’s accident. Nelson seeks to exclude her opinions because the only factor she
allegedly considered when determining Costco’s fault was the structural composition of the
sidewalk. Nelson Motion to Exclude (DN 62) at 4.
The testimony of the two experts differs significantly, and the gap grows greater still in
light of the parties’ arguments that some or all of their testimony should be excluded. Because the
decisions whether to allow the opinion testimony of Birnbach and Peterman significantly affect
the evidence before the Court on summary judgment, the Court considers the motions to strike
first.
MOTIONS TO EXCLUDE EXPERT TESTIMONY
I. Motion to strike Birnbach
Federal Rule of Evidence 702 allows opinion testimony by “[a] witness who is qualified
as an expert by knowledge, skill, experience, training, or education” if the testimony satisfies four
conditions connecting the expertise and the litigation:
(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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. The Supreme Court has interpreted this rule to assign trial judges a “gatekeeper”
function in determining whether proposed expert testimony is sufficiently reliable and relevant for
the jury to consider. Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 407 (6th Cir. 2006)
(citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593 (1993)), abrogated on different
grounds, A.K. by and Through Kocher v. Durham School Services, L.P., 969 F.3d 625, 630 (6th
Cir. 2020). Expert testimony is relevant when it will assist the trier of fact in understanding the
evidence or determining a material fact in question. See Daubert, 509 U.S. at 592–93. And it is
reliable when grounded in valid methods and procedures that support the trustworthiness of the
testimony. Id. at 590 n.1. The Federal Rules and precedents interpreting them afford trial courts
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“considerable leeway in deciding … how to go about determining whether particular expert
testimony is reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
A. Expert Report. Measuring the four conclusions in Birnbach’s report against the
Rule 702 standards reveals serious shortcomings in each. Despite citing various out-of-context
diagrams and standards, Birnbach’s opinions are fundamentally subjective; they lack the reliability
and objectivity provided by an expert’s application of an established discipline or agreed principles
to issues outside the understanding of a lay jury.
Many of these same shortcomings supported the Third Circuit’s recent affirmance of the
exclusion of another proffered “retail-safety expert”—and apply equally here. That witness, like
Birnbach, “provided no factual basis for why [some materials] were relevant, while others were
not.” Yazujian v. PetSmart, 729 F. App’x 213, 216 (3d Cir. 2018). The Yazujian witness, like
Birnbach, offered “no evidence that [h]is method was tested, accepted, or used by other experts in
the field of retail safety.” Id. (citing Kumho Tire, 526 U.S. at 151). “Accordingly,” the Court of
Appeals “agree[d] with the District Court that [the expert] was not qualified as an expert in retail
safety, and that his testimony was the product of methods and principles that were not reliable.
[The witness’s] testimony would have constituted no more than ‘subjective belief or unsupported
speculation,’ and would not assist the jury in understanding or determining a fact in issue, as
required under Rule 702 and Daubert.” Id. (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d at
742).
Birnbach’s first conclusion—that it was “incumbent” on Costco to follow standards calling
for “timely sidewalk inspections” and identification of “hazardous conditions” and “cure[s]”—is
an irrelevant opinion unconnected to either the facts or any purported (and unidentified) “Industry
Standards.” Birnbach Statement at 7. Neither party contends that a failure to conduct routine
inspections caused Nelson’s accident. In fact, Nelson elsewhere contends that the design, not the
maintenance, of this portion of the premises is to blame. See Oral Arg. Tr. at 23:1–21.
The second conclusion—that Costco did not comply with “generally accepted industry
safety standards, protocols, and procedures”—fails to identify those standards or describe Costco’s
alleged violations. Birnbach states that these standards are “well-known,” and require the “Store
Manager” to “oversee and provide a safe and hazard-free shopping venue.” Birnbach Report at 7.
The Store Manager’s responsibility in the context of this incident, however, is neither “wellknown” nor explained anywhere in the record, or the expert report, or his deposition. Providing a
“safe and hazard-free” premises, id., moreover, is at best a gloss on a generic legal standard
applicable to premises liability, not “specialized knowledge” that would “help the trier of fact,”
Fed. R. Evid. 702 (emphasis added). Despite reviewing Birnbach’s report, addendum, and
deposition, the Court remains in the dark about how the proffered expert would explain to a jury
the facts indicating which standards applied to Costco and whether Costco complied with them.2
See Antioch Co. Litig. Tr. v. Morgan, 633 F. App’x 296, 300 (6th Cir. 2015) (expert opinion based
2
A significant portion of Birnbach’s report focuses on the accessibility of Costco’s handicap parking spaces
and the location of stray shopping carts. Birnbach surmises that the carts could have obstructed the path
Nelson traveled toward further flung handicap spots. Birnbach Report at 2, 5–6. Neither point is relevant.
Nothing indicates that Holt parked in a handicapped spot, or that the safest spots were unavailable, or that
Nelson traveled past stray carts en route to handicapped spots. See Birnbach Dep. at 81:11–14.
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primarily on experience must “explain how that experience leads to the conclusion reached, why
that experience is a sufficient basis for the opinion, and how that experience is reliably applied to
the facts”).
Birnbach’s third conclusion fares little better. “This is a deviation,” he states (without
clarifying what “this” refers to), from “parking lot and sidewalk safety practices, which included
the minimal and reasonable customs and practices in the industry, as well as, ADA and IBC local
building code policies and procedures.” Birnbach Report at 7. Again, his report does not identify
the “generally accepted” safety practices or any relevant provisions of the Americans with
Disabilities Act (ADA) and International Building Code (IBC). Birnbach says those provisions
are “discussed in this report.” Id. Presumably that means the Addendum: a 16-page compilation
of Google images, superimposed diagrams, crisscrossing arrows, and sometimes illegible blocks
of text or citations. Many of these materials lack any indication of their source. Birnbach
Addendum (DN 41-1). Nowhere do we find the sort of explanation that might conceivably help a
jury understand a relevant industry standard as applied to the facts of Nelson’s case. Nowhere
does Birnbach show the location of the accident, identify how that spot varied from an applicable
policy or custom, or explain how any violation caused Nelson’s accident. Instead, Birnbach offers
a gestalt critique of Costco’s design of its sidewalks, doors, and handicapped parking. This does
not connect Birnbach’s professed expertise with the facts of the case, or with a jury’s consideration
of whether Costco breached its duty of care according to relevant regulatory or industry standards.
See Powell v. Tosh, 942 F. Supp. 2d 678, 687 (W.D. Ky. 2013), adhered to on denial of
reconsideration, Powell v. Tosh, No. 5:09-cv-121, 2013 WL 1878934 (W.D. Ky. May 3, 2013)
(“[An] expert’s testimony must be grounded in an accepted body of learning or experience in the
expert’s field, and the expert must explain how the conclusion is so grounded.”).
His fourth conclusion offers more of the same, though targeted to the “design review
process” and “final design build out.” Birnbach Report at 7. Again, Birnbach lists a grab-bag of
alleged actions that would’ve violated unidentified standards with unidentified connections to the
accident. “Additional compliant curb cuts, level landings, curb construction, painted walkways
and curb surfaces, sidewalk widths, [and] signs.” Compliant with what? Based on what retail
merchandise expertise? Causing Nelson to fall why? Birnbach’s qualifications to opine about the
“design review process” and “final design build out” are doubtful to begin with. He admits that
“anything that’s structural is out of my realm of ability” and that the “final engineering” and “final
submittal to the municipalities” “would have to be done by a registered architect or … licensed
engineer,” which he is not. Birnbach Dep. at 37:4–8. (Birnbach has a degree in architecture, but
did not pass the licensing examination either time he sat for it. Birnbach Dep. at 21:12–22:14.)
Nor does he have any basis to opine on what did happen during the design build out or regulatory
approval process—because he didn’t look into it. Id. at 12:9–13:8.
No discipline, expertise, or other “specialized knowledge” stands behind Birnbach’s own
opinions on what a better store design might’ve looked like. Nor are those recommendation
connected to the actual accident. So the Court, in its gatekeeper role, cannot conclude that
Birnbach’s disclosed opinions would offer a jury relevant or reliable assistance as it sought to
determine whether Costco violated its duty to offer reasonably safe premises. See Meemic Ins.
Co. v. Hewlett-Packard Co., 717 F. Supp. 2d 752, 762 (E.D. Mich. 2010) (an expert’s “conclusions
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must be connected to the existing data by more than the ipse dixit of the expert”). The Court
therefore holds that Birnbach is unqualified to offer the opinions disclosed in his expert report.
B. Deposition Testimony. At his deposition, Birnbach attempted to bolster and expand
on the conclusions disclosed in his expert report. Beyond the four opinions discussed above, he
listed seven violations that he believed contributed to Nelson’s fall:
1. Inadequate instructions regarding use of the motorized scooter;
2. Insufficient visual notice instructing scooter operators to use ramps from the parking
lot surface to the top of the sidewalk;
3. An improperly constructed curb;
4. Less than 36 inches of unobstructed width on the sidewalk;
5. No loading area for handicapped patrons;
6. Allowing automobiles to stand or park at the curb; and,
7. Inadequate reporting procedures.
Birnbach Dep. at 91:18–99:1. These asserted violations expand the opinions Birnbach proposes
to offer, contra Fed. R. Civ. P. 26 (a)(2)(B)(i), without in any way addressing the deficiencies
identified above in his report.
1–2. Scooters. Birnbach lacks the requisite qualifications to testify about Costco’s
motorized scooter policy. “To qualify as an expert under Rule 702, a witness must first establish
his expertise by reference to ‘knowledge, skill, experience, training, or education.’” Pride v. BIC
Corp., 218 F.3d 566, 577 (6th Cir. 2000). Although courts should interpret this requirement
“liberally,” a witness is not “an expert simply because he claims to be.” Id.
Nelson admits that Birnbach lacks a “specific scooter endorsement.” Response to Motion
to Strike (DN 65) at 11. He has no technical training or licensing in this aspect of store design.
Advising stores on scooter usage, he says, is “part of what his design experience encompasses,”
and some of his clients are retailers that provide electric scooters to their customers. Oral Arg. Tr.
9:22. This casts an overbroad net. Birnbach has no specialized knowledge about the operation of
motorized scooters or the design, labels, instructions, or signage that stores should and do use to
make them safe for patrons. Id. at 17–18. The deposition and report contain no description of his
qualifications, education, or experience in this area. Nor does the record contain any evidence that
Birnbach has worked with stores on their scooter warning labels or usage in the past. The Sixth
Circuit has held “that unqualified individuals could not broadly testify about an area in which they
possessed no specialized knowledge,” and Nelson hasn’t pointed to anything that would justify his
testimony regarding Costco’s instructions or notice regarding the scooter at issue. Champion v.
Outlook Nashville, Inc., 380 F.3d 893, 908 (6th Cir. 2004).
Nelson argues that Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 294 (6th
Cir. 2007), weighs in favor of admitting Birnbach’s scooter opinions. In that case, a private
security contractor was deemed qualified to offer opinions as an expert in threat assessment,
specifically “commercial bus line threat assessment,” despite his lack of specific experience in bus
security. Id. But that witness undoubtedly had expertise in assessing security threats, as well as
experience in the transportation industry. Id. Birnbach lacks any such connection to the aspects
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of Costco’s use of scooters that he critiques, and his experience in “retail store design” lies far
from the realm of scooter safety warnings.
Equally important, Nelson hasn’t drawn any connection between Birnbach’s background
(which is discussed sparingly in the report) and the specific opinions he proposes to offer on this
subject. In any case, Birnbach’s specific opinions are largely beside the point. He contends that
Costco (like other stores) should’ve adopted a policy and posted warning signs prohibiting carts
from being driven outside. But Costco’s carts already display signs requiring “in store use only.”
Birnbach Report at 6. Birnbach further suggests that all the scooter operator warnings should have
been provided “in one place” and that Costco could have provided better signage regarding the
proper use of scooters around the exit. He does not, however, explain how Costco’s slightly
different decisions contributed to Nelson’s accident, or why they are deficient under any relevant
industry standard. To the contrary, Birnbach admits Costco did not violate any code provision in
this respect. Birnbach Dep. at 94:13–15.
Allowing him to testify regarding scooter use and labeling would not reflect any reliable
expertise on his part or illuminate any relevant fact for the jury. See Elswick v. Nichols,
144 F. Supp. 2d 758, 766 (E.D. Ky. 2001), aff’d sub nom. Elswick v. Pikeville United Methodist
Hosp. of Kentucky, Inc., 50 F. App’x 193 (6th Cir. 2002) (“The qualification, however, must match
up with the subject matter about which the expert is to testify; for example, an aeronautical
engineer could testify about how bees fly based on his education and training in flight principles,
but that same engineer could not testify about whether bees always take off into the wind because
his training in aeronautics would not qualify him to answer that question.”).
3–4. Curb construction. The Court also harbors serious reservations about Birnbach’s
qualifications to testify about the construction and width of the curb where Nelson fell. Birnbach
describes himself as a “Store Designer, Site Planner and Retail Safety Expert.” Birnbach Report
(DN 65-6) at 1. He worked for more than 40 years on “retail store display design experience,”
which primarily involves merchandise display. Birnbach CV (DN 41-2) (describing experience
with store displays). The bulk of Birnbach’s CV relates his experience as a retail designer whose
customers see increased sales revenue from his creative merchandising and improved store and
design layouts. Id. His design work sometimes includes sidewalks and parking lots, but he
admittedly cannot opine about anything structural. Birnbach Dep. at 10:19–11:24, 37:4–5.
Birnbach lacks an “architectural license,” could not submit sidewalk or parking lot designs to
municipalities for approval, and describes no experience designing safe and code-compliant store
exteriors. Birnbach Dep. at 21:6–8; 11:12–24. His testimony discusses code compliance in the
abstract, but not any work with specific regulations and standards that would prove relevant here.
Id. at 37:10–12.
A review of Birnbach’s methodology reveals more serious concerns. Rule 702 requires an
expert’s testimony to rest on “sufficient facts and data.” An “expert’s subjective belief or
unsupported speculation” will not satisfy that standard. Smelser v. Norfolk S. Ry. Co., 105 F.3d
299, 303 (6th Cir. 1997). Birnbach did not conduct an on-site examination of the accident site, but
instead relied on photographs and Google images to assert that the curb was improperly
constructed and less than 36 inches wide. Birnbach Dep. at 37–38. He never measured the slope
or width of the sidewalk. Id. at 38, 77. He didn’t physically inspect the sidewalk, id., or review
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Nelson’s own account of the incident, id. at 41–42. Yet he asserted that the sidewalk failed to
comply with (unspecified) ADA regulations. Birnbach Dep. at 89:3–8.
Birnbach’s own testimony confirms the inadequacy of the factual basis he relied on to reach
this conclusion. Fed. R. Evid. 702(b). When asked about the alleged defects in the sidewalk,
Birnbach stated that what he observed “in limited photographs appear[ed] … to be out of
compliance.” Birnbach Dep. at 38 (emphasis added). Birnbach admitted that he never examined
the building plans Costco submitted for municipal approval, which were prepared by licensed
engineers and architects. Id. at 37. Birnbach’s opinion about the rise of the slope “wasn’t
conclusive” because he could “only see it in one direction, so it wasn’t really able to be validated.”
Id. at 99–100. And Birnbach couldn’t see enough of the sidewalk to determine whether Costco
improperly maintained the sidewalk. Id. at 100; Oral Arg. Tr. at 23:4–7. In other words, no facts
or data would support testimony by Birnbach that Costco built a sidewalk that was too steep and
too narrow.
Nelson responds that accident reconstruction experts routinely rely on photographic
evidence and testimony. Response to Motion to Strike at 14. Perhaps they do. But that doesn’t
afford all experts a free pass regarding the sufficiency of their data and reliability of their methods.
FRE 702(b)–(c). When asked about the width of the sidewalk, Birnbach stated, “short of being on
the location, I cannot be 100 percent sure” it measured less than 36 inches. Birnbach Dep. at 73.
He admitted he could not fully measure the slope without “visually seeing it.” Id. at 100. And
some of the figures and measurements in his reports are “extrapolate[d] because [he was] not
physically there.” Id. at 77.
This shortcoming is hard to overlook: we are talking about simple physical measurements
of concrete objects in the real world. Why would the jury benefit from a witness’s inferential
opinion about how long a slab of concrete appears to be in a photo—when someone could just lay
a tape measure across the real thing? Neither Nelson nor Birnbach offers any reason why
conjecture is warranted here. Such testimony, if admitted, would surely obscure more than
illuminate the facts for a jury.
Under Rule 702(b) and (c), a district court must confirm that “the factual underpinnings of
the expert’s opinion [are] sound.” Greenwell v. Boatwright, 184 F.3d 492, 498 (6th Cir. 1999).
This the Court cannot do. And “[a]n expert’s opinion is not relevant unless it is based on the actual
facts of the case.” Jesa Enters. v. Thermoflex Corp., 268 F. Supp. 3d 968, 973 (E.D. Mich. 2017).
The Sixth Circuit regularly upholds district court decisions to exclude expert testimony that is not
based on sufficient facts or reliable methods. See, e.g., Auto Indus. Supplier Emp. Stock Ownership
Plan v. Ford Motor Co., 435 F. App’x 430 , 454 (6th Cir. 2011) (lack of personal knowledge about
underlying data); Ask Chemicals, LP v. Computer Packages, Inc., 593 F. App’x 506, 510 (6th Cir.
2014) (unreliable lack of independent verification or analysis regarding underlying data); Newell
Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012) (“Red flags that caution
against certifying an expert include reliance on anecdotal evidence, improper extrapolation, failure
to consider other possible causes, lack of testing….”). Birnbach’s speculative conclusions about
curb construction and sidewalk width do not meet these standards.
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5–6. Handicap parking and loading. Next, Birnbach opines that Costco needed a loading
area for handicapped patrons and a policy preventing automobiles from standing or parking at the
curb in front of the store. These add little to the jury’s assessment of Costco’s potential breach as
it relates to Nelson’s accident. Birnbach admits that neither critique violates a municipal ordinance
or other code. Birnbach Dep. at 96:17–97:16. Instead Birnbach contends that Costco’s loading
area and curbside-parking policy represent “deviation[s] from well-recognized, generally accepted
and Retail Industry wide parking lot and sidewalk safety practices.” Birnbach Report at 7. But
what are these practices? Where are they written down? Who generally accepts them? How and
why did Costco depart from them? We do not know. We only have Birnbach’s “ipse dixit”. See
Meemic, 717 F. Supp. 2d at 762.
Birnbach offers no basis for these parking-lot opinions—no theory, no method or error rate,
no comparison with alternatives, and no pertinent code violations. Worse still, he all but ignores
that Costco did in fact bar cars from idling in front of the store and advertised that policy on its
signs. Birnbach Dep. at 2–9 (acknowledging policy but criticizing Costco’s enforcement as
insufficiently vigorous). Stripped of all trappings, Birnbach merely offers his personal view on
what Costco should’ve done.3 But without explaining or applying some method by which experts
in his field assess whether stores have transgressed safety norms or rules, the Court (not to mention
a jury) lacks a foundation to evaluate the relevance and reliability of his testimony. See Conwood
Co., v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002) (“The district court must determine
whether the evidence ‘both rests on a reliable foundation and is relevant to the task at hand.’”).
In any event, Nelson acknowledges that the parking lot design is “not the main issue” and
may have had only a “minor effect.” Oral Arg. Tr. at 28:9–10. Indeed, the consequences of any
different parking-lot layout on this accident are entirely speculative. If the store instituted more
handicap parking spots, as Birnbach suggests, would Nelson’s scooter not have tipped over the
curb? If the store created a separate handicap-loading area, would Nelson not have driven his
scooter away from the car parked in the entryway? No evidence suggests a different result under
these counterfactuals: Holt normally picked up Nelson at the entrance, Nelson Dep. at 39–40,
apparently regardless of the availability of handicap parking or loading space.
7. Reporting. Birnbach’s final opinion—that Costco lacked appropriate reporting
procedures—is beside the point. Whether Costco adhered to an after-the-fact reporting system did
not cause the accident in any way, as Birnbach admitted. Birnbach Dep. at 98:21–23. And Nelson
offers no evidence of similar earlier accidents whose reporting might’ve averted this one.
Birnbach’s opinion on this point would prove entirely irrelevant to the jury’s consideration.
3
Some expert opinions are reliable based on personal experience not easily susceptible to testing, peer
review, or external validation. In admitting such testimony, courts rely heavily on the expert’s experience
and qualifications. See, e.g., First Tennessee Bank Nat. Ass’n v. Barreto, 268 F.3d 319, 335 (6th Cir. 2001)
(opinion on prudent banking standards derived from 40 years’ experience in banking); Flanagan v. Altria
Grp., Inc., 423 F. Supp. 2d 697, 702 (E.D. Mich. 2005) (reconstructing lost insurance policies is not the
type of opinion that can be tested or verified). As explained above, nothing in Birnbach’s experience
reflects the external-safety judgments he proposes to make here. And in any event, his testimony and report
purport to rely primarily on unidentified industry standards, rather than his own personal experience, in
reaching those conclusions.
10
***
Stepping back and surveying the whole of Birnbach’s testimony, not once does he “cite[]
tests, data, reports, written standards, or any other testable evidence to support any of [his]
opinions.” Keyes v. Techtronic Indus. Factory Outlets, No. 3:18-cv-671, 2020 WL 5592694, at
*2 (S.D. Miss. Aug. 4, 2020) (excluding a retail safety expert’s opinion as unreliable). Without
such indicia of reliability, the Court has no basis to find that his “method was tested, accepted, or
used by other experts in the field of retail safety.” Yazujian, 729 F. App’x at 216 (excluding a
retail safety expert who failed to define what standards he applied and conduct a sufficient
examination of the store). Instead, Birnbach’s report draws sweeping conclusions without
properly explaining their factual basis in the field of “retail design and safety.” See Hayes v. MTD
Prod., Inc., 518 F. Supp. 2d 898, 901 (W.D. Ky. 2007). For these reasons, the Court lacks a basis
to conclude that Birnbach’s opinions rest on anything more than “subjective belief or unsupported
speculation.” Daubert, 509 U.S. at 590. And “nothing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion evidence that is connected to existing data only
by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
Because each condition identified by Birnbach fails some aspect of the Rule 702
requirements, he has no basis to testify that the totality of the circumstances created an
unreasonably dangerous condition leading to Nelson’s accident. The Court therefore holds his
opinions inadmissible and excludes his testimony under Rule 702.
II. Motion to strike Peterman
The Court applies the same Rule 702 analysis to the admissibility of the proffered expert
testimony of Peterman, to which Nelson objects in part. Peterman draws five conclusions:
a) “The difference in elevation at the incident curb was clearly marked with red paint.”
b) “The incident area met the requirements of the applicable code and ADA guidelines.”
c) “Costco maintained the walkway, curb, and entrance with the applicable standards of
care for pedestrian safety.”
d) “Mr. Birnbac[h] failed to provide analysis or opinions regarding the alleged incident.
Any opinions or analysis he produces concerning this matter should be disregarded as
unscientific and unreliable.”
e) “If Mr. Nelson was injured, it was not due to the actions or inactions of Costco.”
Peterman Report (DN 46-1) at 4–5.
Peterman is a licensed architect with more than 20 years’ experience in retail store design
and construction. Id. at 7–9. She has designed many large retail stores and gas stations. Peterman
Dep. at 16:2–6, 21:20–22:6 (Walmart, Big Lots, Pilot, Speedway, Marathon). This includes the
layout for parking lots, sidewalks, and other exterior areas. Peterman Dep. at 16:7–15. Peterman
has submitted her designs to municipalities for approval, requiring her to demonstrate compliance
with local and federal building and safety standards. Id. at 27:15–28:15. She conducts on-site
safety audits and investigates building code and ADA compliance. Id. at 16:16–21; Peterman
Expert Report at 7–9.
11
Peterman applied her education, training, and experience in reviewing Nelson’s accident.
She reviewed photographs of the incident and then performed a site investigation to actually
measure the areas involved in the incident. Id. at 12:23–13:6. As part of her investigation, she
reviewed the ADA, Kentucky Building Code, and the Kentucky Fire Code to determine whether
the incident area complied with these regulations. Id. at 13:18–22. Although Peterman’s third
conclusion discusses “applicable standards of care for pedestrian safety,” she clarified during her
deposition that she did not consider standards of care beyond the building codes and the ADA
regulations. Id. at 15:13–20.
1. Curb paint. Peterman’s first opinion—that the curb’s elevation change was clearly
marked with paint—is well within the lay knowledge of the jury. Therefore Peterman’s testimony
regarding an “opinion” as an “expert” is neither necessary nor helpful. See United States v.
Kilpatrick, 798 F.3d 365, 380 (6th Cir. 2015) (“It is not ‘helpful’ when a witness, lay or expert,
forms conclusions for a jury that the jurors are competent to reach on their own.”); see also Fed.
R. Evid. 702 (requiring “specialized knowledge”). Costco observes that nearly every witness has
acknowledged that the curb was painted red. Response to Motion to Exclude (DN 63) at 2. Such
uniformity about a basic fact pushes it outside the realm of “technical” or “specialized knowledge”
that Rule 702 permits. Whether the curb’s red paint satisfies relevant safety codes, however, is a
fact underlying her second conclusion—regarding code compliance—and therefore could be
discussed in that context. See, e.g., Stallins v. Celebrezze, 227 F. Supp. 138, 142 (W.D. Ky. 1964)
(expert’s testimony about subsidiary questions of fact are often “essential” in explaining the
conclusion ultimately reached).
2. Building code and ADA requirements. The Court lacks any basis to exclude her second
conclusion: that “[t]he incident area met the requirements of the applicable code and ADA
guidelines.” Peterman Report at 4. Nelson attempts to minimize this opinion as “unremarkable.”
Motion to Exclude (DN 62) at 4. Yet Peterman’s qualifications, experience, and methodology
lead logically to this conclusion, which bears directly on a subject that is both central to the breach
determination and outside a juror’s typical understanding. Peterman’s qualifications and
experience make her well situated to opine on this issue, and her on-site measurements instill
confidence in the reliability and factual basis of her conclusions. Even Nelson acknowledges that
“Peterman took proper measurements and used adequate methods to reach her opinion that Costco
complied with Building codes.” Reply to Nelson’s Motion to Exclude (DN 66) at 1. He further
“recognizes that Peterman is qualified to offer opinions related to building codes” and (cautiously)
concedes that “she can even testify that the curb was properly maintained as designed.” Id. This
is appropriate and reliable expert testimony regarding building safety. See Yazujian, 729 F. App’x
at 215–16.
3. Maintenance. Peterman’s third conclusion—that Costco maintained the outdoor areas
consistent with the “applicable standards of care”—is vague and legalistic. In her deposition,
Peterman appears to equate these standards with the applicable building codes, real-world rules
far more amenable to expert testimony than a witness’s abstract perception of the “standard of
care.” Peterman Dep. at 15:13–20; see also EQT Prod. Co. v. Vorys, Sater, Seymour & Pease,
LLP, No. cv 15-146, 2018 WL 1996797, at *19 (E.D. Ky. Apr. 27, 2018), aff’d sub nom. EQT
Prod. Co. v. Phillips, 767 F. App’x 626, 632–33 (6th Cir. 2019) (excluding expert testimony based
12
on experience for failing to establish an “objective standard of care” as a benchmark for an alleged
breach). To the extent she benchmarks the standard of care to code compliances, this third opinion
would seem to largely restate her admissible second opinion: just as Costco’s design met applicable
code requirements (opinion 2), Costco also maintained the area in a manner consistent with code
(opinion 3).
But if, as Nelson asserts, Peterman is referring to other undisclosed standards, the Court
agrees that this is inappropriate. Such testimony would be objectionable for many of the same
reasons Birnbach’s allusions to unidentified industry or regulatory standards are inadmissible. See
Part I above. Costco has disclosed no underlying facts or methods supporting Peterman’s
investigation or analysis regarding any undefined metrics. FRE 702(b)–(c). Any such testimony
would be inadmissible at trial.
4. Birnbach rebuttal. The testimony of one expert contradicting another does not
automatically render either expert’s testimony unreliable. “[C]ontradictory fact or opinion
evidence merely establishes a fact dispute.” Sanford v. Russell, 387 F. Supp. 3d 774, 785 (E.D.
Mich. 2019). Such a “battle of the experts” is properly resolved by the jury, which must “weigh
the experts’ testimony and decide accordingly.” Magna Elecs., Inc. v. TRW Auto. Holdings Corp.,
No. 1:12-cv-654, 2016 WL 4239185, at *2 (W.D. Mich. Jan. 7, 2016). But while “an expert may
critique the methods of another expert,” In re Heparin Prod. Liab. Litig., 803 F. Supp. 2d 712, 751
(N.D. Ohio 2011), “[a]n expert opinion on a question of law is inadmissible.” Chavez v. Carranza,
559 F.3d 486, 498 (6th Cir.2009); see also U.S. ex rel. Martin v. Life Care Centers of Am., Inc.,
No. 1:08-cv-251, 2014 WL 4816006, at *3 (E.D. Tenn. Sept. 29, 2014).
Peterman’s conclusion that Birnbach’s opinions and analysis “should be disregarded as
unscientific and unreliable,” see Peterman Report at 5, falls into the territory of a legal, rather than
a factual, conclusion. See In re Heparin, 803 F.Supp. 2d at 751 (an expert’s statement that a
counterpart’s “methodology is flawed and not valid” would “stra[y] into a legal conclusion”).
Such conclusions “invad[e] the province of the court to determine the applicable law and to instruct
the jury as to that law.” Torres v. Cnty. of Oakland, 758 F.2d 147, 150 (6th Cir.1985). In this
regard, Peterman’s conclusion usurps the gatekeeping function of the Court. See Mike’s Train
House, 472 F.3d at 407. Courts may also appropriately exclude expert testimony that opines on
terms that have a “separate, distinct, and specialized meaning in the law.” U.S. ex rel. Martin,
2014 WL 4816006, at *3. In the Daubert context, “unreliable” and “unscientific” are such terms.
Although the Court excludes Peterman’s conclusions on page 5 of her report and would
limit her testimony accordingly, she is free to critique Birnbach’s methods and the underlying facts
and data he relied on, as she does on pages 3–4 of her report. See In re Heparin, 803 F.Supp. 2d
at 751 (permitting one expert to critique the methods of another). Such criticisms go to the weight
of the expert testimony and are reserved for the jury’s consideration.
5. Causation. Peterman’s opinion that Costco categorically did not cause any injury to
Nelson, Report at 5, is too broad and abstract. Peterman does not tie this conclusion to any reliable
analysis, based in her qualifications and experience, that could rule out any role for Costco. Such
umbrella assertions sweep in potential issues that lie beyond Peterman’s field of expertise and
improperly encroach on the jury’s responsibility to review the totality of the circumstances
13
contributing to the accident. See Peterman Dep. at 53:21–25 (admitting that unsafe conditions can
exist even if the store complied with all building codes); Hayes, 518 F. Supp. 2d at 901 (excluding
an expert whose testimony expanded from opinions to conclusory legal assertions). Although
Peterman may speak to specific conditions or risks that fall within the purview of her expertise in
architecture, building safety, and regulatory compliance, she is not in a position to offer a generic
opinion that Costco had nothing whatsoever to do with Nelson’s injury.
***
In sum, Peterman’s opinions regarding Costco’s compliance with building codes and other
identified regulatory standards are admissible because they are rooted in her training, experience,
and on-site examination. Those portions of her opinions are admissible. The remaining portions,
however, fail to connect her qualifications to the questions facing the factfinder in this case and
are therefore inadmissible.
MOTION FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure directs courts to grant summary
judgment “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(a). The party seeking
summary judgment bears the initial burden of “identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). The non-moving party must
then point to portions of the record supporting its position and demonstrating that a genuine dispute
exists. Id. at 324.
A. Kentucky premises-liability law
Under Kentucky law, the plaintiff in a negligence action must establish duty, breach,
causation, and damages. See, e.g., Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88–89 (Ky. 2003).
Duty is a question of law; breach and damages are typically questions of fact; and causation
presents a mixed question of law and fact. Id. at 89. Costco, in conjunction with its Daubert
motion to exclude Nelson’s expert testimony, moved for summary judgment based on a lack of
evidence regarding the elements of breach and causation: it contends Nelson failed to identify
evidence that would allow a jury to find that a dangerous condition caused Nelson’s injury. MSJ
at 2.
Costco undoubtedly owed a duty to Nelson—a business invitee—to prevent or warn him
of unreasonably dangerous conditions on its premises. See Kentucky River Medical Center v.
McIntosh, 319 S.W.3d 385, 388 (Ky. 2010) (“[L]and possessors owe a duty to invitees to discover
unreasonably dangerous conditions on the land and to either correct them or warn of them.”).
The Kentucky Supreme Court has adopted a “burden-shifting approach to premises liability
cases involving injuries to business invitees.” Martin v. Mekanhart Corp., 113 S.W.3d 95, 98 (Ky.
2003). Under that framework, the plaintiff bears the burden of establishing that:
14
1) “he or she encountered a foreign substance or other dangerous condition on the business
premises;
2) “the encounter was a substantial factor in causing the accident and the customer’s
injuries; and
3) “by reason of the presence of the substance or condition, the business premises were
not in a reasonably safe condition for the use of business invitees.”
Id. (citing Lanier v. Wal–Mart Stores, Inc., 99 S.W.3d 431, 435–36 (Ky. 2003)). Proof of these
factors “creates a rebuttable presumption sufficient to avoid a summary judgment or directed
verdict, and ‘shifts the burden of proving the absence of negligence, i.e., the exercise of reasonable
care, to the party who invited the injured customer to its business premises.’” Id. Kentucky courts
have applied this burden-shifting framework to trip-and-fall cases involving motorized scooter and
curb accidents. See, e.g., Festervan v. Kroger Co., No. 2020-ca-822, 2021 WL 647122, at *4 (Ky.
Ct. App. Feb. 19, 2021).
Nelson and Costco disagree extensively over the applicable legal framework. Costco
argues that it did not owe a duty to Nelson in the first place, despite the burden-shifting framework
described above, based on the “open and obvious doctrine”—which according to Costco eliminates
a premises owner’s duty where the nature of a risk is obvious. In Costco’s view, because the curb
was an obvious condition from which the store had no reason to anticipate injury to its customers,
“Costco had no duty to warn [Nelson] of a dangerous condition.” MSJ at 11–14. Nelson, for his
part, argues that burden shifting does not apply to premises liability cases based in negligence, and
that the open and obvious doctrine is “dead as a doornail.” MSJ Response at 1.
Neither party has the law quite right. The Kentucky Supreme Court, after a string of
decisions addressing the status of the “open and obvious doctrine, has defined the doctrine:
An open and obvious condition is one in which the danger is known or obvious. The
plaintiff knows of a condition when she is aware, not only of the existence of the condition
or activity itself, but also appreciates the danger it involves. And the condition is obvious
when both the condition and the risk are apparent to and would be recognized by a
reasonable man, in the position of the visitor, exercising ordinary perception, intelligence,
and judgment.
Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 906 (Ky. 2013), as corrected (Nov.
25, 2013) (cleaned up) (citing R.2d Torts § 343A(1) cmt. b). For decades, whether the doctrine
applied as a matter of the duty element or the breach element remained unclear—but largely
irrelevant—under Kentucky’s contributory-negligence framework. McIntosh, 319 S.W.3d at 389.
“In either event, the injured invitee could not recover.” Id. (quoting Harrison v. Taylor, 115 Idaho
588, 592 (1989)). But after Kentucky adopted the comparative-fault regime, the Supreme Court
clarified that the doctrine raises a factual question of breach, rather than a legal question of duty.
Id. This is significant: “if the invitee’s voluntary encounter with a known or obvious danger were
deemed to excuse the landowner’s duty, then there would be no negligence to compare—and,
therefore, no recovery.” Id. (citation omitted). But because the existence of an obvious risk goes
to breach, “the injured invitee might recover, albeit in a diminished amount.” Id.
15
The open-and-obvious doctrine, therefore, is “alive,” but applies to the question of breach
rather than duty. Shelton, 413 S.W.3d at 911.
This line of precedent also bears on Nelson’s argument that the burden-shifting framework
does not apply in this case. Nelson cites two Kentucky Supreme Court decisions that did not
discuss the burden-shifting framework in premises-liability suits: Kentucky River Medical Center
v. McIntosh, 319 S.W.3d 385 (Ky. 2010), and Shelton v. Kentucky Easter Seals, 413 S.W.3d 901
(Ky. 2013). On this basis, Nelson asks the Court to apply a standard negligence analysis, allowing
a jury to decide the questions of breach and causation without the constraints of the more targeted
burden-shifting inquiry set forth in earlier Kentucky Supreme Court decisions. See, e.g., Martin
v. Mekanhart Corp., 113 S.W.3d 95, 98 (Ky. 2003); Lanier v. Wal–Mart Stores, Inc., 99 S.W.3d
431, 435–36 (Ky. 2003).
McIntosh and Shelton, however, do not purport to overrule Martin, Lanier, and the burdenshifting framework they applied. Rather, they simply remained mute on the burden-shifting
question while addressing the open-and-obvious doctrine. In McIntosh, a paramedic sued a
hospital after she tripped over a curb between the ambulance dock and the emergency room doors.
319 S.W.3d at 387–88. And in Shelton, a woman fell after her foot got tangled in cords beside a
hospital bed. 413 S.W.3d at 904. In both cases, the Supreme Court recognized that some
conditions may be so notorious that they would not create an unreasonable and foreseeable risk—
meaning the landowner would not bear negligence liability if those open and obvious conditions
injure someone. Id. at 911–14.
The open-and-obvious doctrine, therefore, does not displace the burden-shifting
framework for premises liability; it simply functions as a defense to liability that might otherwise
exist under that framework. As Costco notes, Kentucky courts have applied the burden-shifting
framework to premises liability cases on many occasions. See, e.g., Festervan v. Kroger Co.,
2021 WL 647122, at *4; Martin, 113 S.W.3d at 98; Lanier, 99 S.W.3d at 435–36; Jones v. Abner,
335 S.W.3d 471, 475 (Ky. App. 2011). Nelson is also wrong to argue that the framework applies
only when the plaintiff encounters a “foreign substance.” MSJ Response at 1. The plain language
of these decisions refers to “other dangerous conditions.” Martin, 113 S.W.3d at 98.
B. Nelson’s lack of evidence
1. Dangerous condition. Applying the burden-shifting framework to Nelson’s injury, the
first question is whether the record indicates he encountered a dangerous condition on Costco’s
premises. At the summary judgment stage, evidence “must be produced”—a “merely …
theoretical argument suggesting the logical possibility of the existence of facts pointing to a
different conclusion” does not suffice. Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1134 (6th
Cir. 1986).
Nelson lacks any such evidence in light of the inadmissibility of Birnbach’s testimony on
breach. Birnbach’s own subjective opinions—unsupported by any external research, discipline,
or custom—do not establish that Costco’s sidewalk and curb violated any external code or custom,
or that using a scooter there amounted to an “unreasonably dangerous condition.” And no other
16
evidence supports Nelson’s position. He identifies no similar prior accident, no custom of a
different design standard, no faulty construction or maintenance, and no notice or knowledge on
the part of Costco that a dangerous condition existed. No evidence—from the expert or
otherwise—indicates that the grade or width of the sidewalk failed to comply with safety
regulations and Costco’s duty of care. Birnbach did not even measure the spot of the accident.
But Peterman’s analysis, which is admissible, supplies evidence (which now stands unrebutted)
that the curb and sidewalk complied with the relevant code provisions.
2. Open and obvious. Peterman’s conclusion accords with the most analogous Kentucky
caselaw concerning the open-and-obvious defense. The Kentucky Court of Appeals, in Festervan,
held that the juncture between a sidewalk and parking lot was an open and obvious condition that
did not require a store owner to warn patrons or redesign the curb. In that case, a shopper fell off
a motorized scooter that tipped over a curb. Like Nelson’s accident, no one saw Festervan fall.
Like Nelson, Festervan offered no evidence indicating that the sidewalk juncture was an
unreasonably dangerous condition. And like Nelson, Festervan lacked any proof of causation,
relying only on his speculation that the curb must’ve caused the accident. The Kentucky Court of
Appeals held that absent eyewitnesses or other proof of “an actual encounter with a dangerous
condition … that caused the injury,” the court lacked any basis to conclude that the defendant,
Kroger, breached its duty of care. Festervan, 2021 WL 647122, at *3.
Here we would reach this same result if we apply the open-and-obvious doctrine instead of
the first prong of the burden-shifting framework. The open-and-obvious defense supports
summary judgment if “the obviousness of danger is compelling, so that the court might take the
case from the jury.” Shelton, 413 S.W.3d at 912, 916. If “reasonable minds cannot differ” about
the evidence, “it would be unreasonable for a jury to find breach or causation.” Id. And the
Kentucky Supreme Court has expressly identified examples of open and obvious risks in the
context of a retail parking lot. A “small pothole in the parking lot of a shopping mall; steep stairs
leading to a place of business; or perhaps even a simple curb,” the court recognized, are examples
that may not create unreasonable risks. Id. at 914 (emphasis added).
The condition Nelson encountered is similar to one addressed in McCoy v. Family Dollar
Store of Kentucky. There the Kentucky Court of Appeals concluded that an undamaged wheel stop
demarcating parking spots in a Family Dollar lot was an open and obvious feature, not an
unreasonably dangerous condition necessitating warning or correction. 525 S.W.3d 93, 99–100
(Ky. Ct. App. 2017). The court noted that “there are wheel stops located at innumerable businesses
throughout the Commonwealth of Kentucky.” Id. at 96. And the plaintiff failed to put any
evidence in the record establishing that wheel stops were unreasonably dangerous. Id. at 99.
Under these circumstances, the court deemed that Family Dollar had acted reasonably in dividing
its parking lot with wheel stops. Id. at 99. The law and the evidence here would not support a
different conclusion with respect to Costco’s own parking lot and curb.
Nelson’s only remaining caselaw support comes from McIntosh. But as noted in
subsequent caselaw, the circumstances of McIntosh were unusual: the curb was “unique in both
location and size;” the plaintiff used an emergency entrance for paramedics rushing trauma
patients; paramedics using the entrance naturally would be distracted and could fail to notice the
curb; and the hospital could foresee that “a paramedic[] would proceed despite the risk posed by
17
the curb.” Shelton, 413 S.W.3d at 915 (describing facts of McIntosh); see also McCoy, 525 S.W.3d
at 96 (affirming summary judgment, in light of Shelton and McIntosh, based on open-and-obvious
doctrine and lack of evidence regarding an unreasonably dangerous condition). None of these
exacerbating factors existed for Nelson. The portion of the store entrance flush with the parking
lot is much wider than the section the idling minivan occupied, allowing Holt to pull up at the front
had he chosen to do so. This would’ve eliminated any reason for Nelson to drive to a narrower
part of the storefront in the first place. Birnbach Addendum at Figure 2A. Nothing in the record
indicates that the store design should have hurried, distracted, or otherwise impelled Nelson when
he drove the cart to the spot of the accident.
3. Statutory presumption. Further underscoring this conclusion is Kentucky law
establishing a statutory presumption that the curb is not defective in its design or construction:
In any action alleging defective building design, construction, materials, or supplies where
the injury, death, or property damage occurs more than five (5) years after the date of
completion of construction or incorporation of materials or supplies into the building, there
shall be a presumption that the building was not defective in design, construction,
materials, or supplies. This presumption may be overcome by a preponderance of the
evidence to the contrary.
K.R.S. § 198B.135; see also Faller v. Endicott-Mayflower, LLC, 359 S.W.3d 10, 12 (Ky. Ct. App.
2011) (affirming an earlier opinion that partly relied on K.R.S. § 198B.135).
This Costco store operated for 11 years before Nelson’s injury. The general manager
testified that between the years of 2013 and 2019, the construction of the curb did not change.
Apparently none of the thousands of people who traversed the sidewalk and curb had been injured.
Motion for Summary Judgment at 11. Nelson cannot point to record evidence that could overcome
this presumption and meet his burden to establish the existence of a dangerous condition. On this
basis, as well, Costco deserves summary judgment under the Kentucky statutory presumption. He
has not identified evidence that could overcome the presumption that no unreasonably dangerous
condition existed. See Faller, 359 S.W.3d at 12.
4. Causation. Nelson’s record evidence also falls short of the second prong of Kentucky’s
burden-shifting framework: causation. The caselaw asks whether the alleged dangerous condition
was a “substantial factor in causing the accident.” No such evidence exists. No eyewitnesses or
cameras captured the accident. Nelson doesn’t remember what happened. Although Birnbach and
Nelson’s attorney speculates about how the accident occurred, neither offer any proof establishing
the likelihood of their scenarios. MSJ Response at 5, n. 4; Birnbach Dep. at 49–50. “[T]he
question should be taken from the jury when the evidence is so unsatisfactory as to resort to
surmise and speculation.” O’Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (citing Chesapeake
& Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)). The only direct evidence of how the
accident happened is Holt’s hearsay testimony, which cuts in precisely the opposite direction:
Nelson told Holt that “he guessed he drove off the curb.” MSJ at 4.
When assessing causation, the Kentucky Supreme Court has held that the mere presence
of a dangerous condition does not support an inference that the condition in fact caused the
18
incident. Klinglesmith v. Estate of Pottinger, 445 S.W.3d 565, 568–69 (Ky. App. 2014). That is,
absent evidence, the Court may not assume that the alleged defect was a factor in Nelson’s fall.
And without proof of this essential element—an actual encounter with a dangerous condition that
caused his accident—Nelson cannot establish a genuine dispute about this essential element of his
case. See Festervan, 2021 WL 647122, at *4; see also Klinglesmith, 445 S.W.3d at 569 (summary
judgment proper where the plaintiff did not know why she fell).
***
In light of Nelson’s failure at prongs one and two, there is no reason to address the third
prong—that a dangerous condition rendered the premises unreasonably unsafe for customers. He
cannot make out a claim for premises liability based on this record.
CONCLUSION
The Court GRANTS in part Costco’s motion to strike Nelson’s expert testimony (DN 60),
GRANTS in part Nelson’s motion to exclude expert testimony in part (DN 62), and GRANTS
Costco’s motion for summary judgment (DN 59).
June 16, 2021
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