Safety Expert Allowed to Opine on the Lack of LRV Contrast

On June 18, 2024, Plaintiff Willie Marshall Lee commenced this negligence action against the United Parcel Service, doing business as UPS. Plaintiff alleged that he "was caused to violently fall to the ground due to a dangerous, defective, cracked, raised and unsafe median existing in the parking lot" of one of Defendant's shipping stores and sustained serious injuries.

Defendant filed a motion to strike the reports and to preclude the opinions and testimony of Plaintiff's liability experts, Dr. William Marletta and David Jimenez.

Safety Expert Witness

Dr. William J. Marletta, Ph.D., CSP, has inspected thousands of buildings and premises for safety hazards and accident prevention all over the country, and his expertise in safety consulting has garnered him many professional accolades. Marletta holds a Ph.D. in Occupational Safety and Health from New York University.

Want to know more about the challenges William Marletta has faced? Get the full details with our Challenge Study report.

Architecture Expert Witness

David Jimenez is a registered architect and former New York City Department of Buildings Plan Examiner. Jimenez has been practicing as a design and building code consultant and an expert witness since 2013.

Get the full story on challenges to David Jimenez’s expert opinions and testimony with an in-depth Challenge Study.

Discussion by the Court

A. Relevance

1. ASTM F1637

First, Defendant contended that Marletta's and Jimenez's opinions are not relevant and will not help the trier of fact understand the evidence or determine a fact at issue. Specifically, Defendant asserted that Marletta and Jimenez's reliance on safety standards that have not been adopted by the New York City Department of Buildings renders their opinions irrelevant. Further, Defendant asserted that Marletta and Jimenez's discussion of handicap accessibility requirements have no probative value given Defendant's purported compliance with those requirements and a lack of evidence that the accident occurred as a result of a handicap accessibility issue.

Here, in developing their opinions, Marletta and Jimenez reference American Society for Testing and Materials ("ASTM") Standard F1637, which "provides guidelines for the design, construction, and maintenance of safe walking surfaces."

Defendant contended that because "ASTM F1637 has never been adopted by any of the New York City Model Building Codes," Marletta's and Jimenez's opinions relying on that standard are irrelevant and will confuse the jury.

Defendant's argument is misguided. Plaintiff did not allege negligence per se, where "an unexcused violation of a statutory standard of care, if unexplained," establishes liability. Instead, Plaintiff alleged negligence, where the duty of care for landowners is not statutory, but rather "reasonable care under the circumstances to maintain their property in a safe condition."

Relevant safety standards, whether codified or not, "are admissible as 'some evidence of the applicable standard of care.'" ASTM F1637 is relevant here in that Defendant's asserted noncompliance with ASTM F1637 walking surface guidelines would make it more probable that Defendant failed to take reasonable care under the circumstances.

Further, to the extent that Defendant is concerned about juror confusion regarding the applicable standard of care, the probative value of the opinions relying on ASTM F1637 is not substantially outweighed by the danger of confusion, and any potential confusion can be "cured by jury instructions and by the careful presentation of evidence by competent counsel." Accordingly, the Court denied Defendant's motion to preclude the reports and testimony of Marletta and Jimenez on the grounds of their reliance on ASTM F1637.

2. Handicap Accessibility Standards of American National Standards Institute

Defendant also took issue with Marletta and Jimenez's reliance on the handicap accessibility standards of American National Standards Institute ("ANSI") A117.1 and the Americans with Disabilities Act ("ADA").

Defendant's arguments are unavailing. Regardless of whether it was "mere happenstance" that the accident occurred in a handicap parking spot and whether it is undisputed that Plaintiff was not disabled at the time of the accident, ANSI A117.1 and the ADA prescribe safety standards that are relevant to whether Defendant took "reasonable care under the circumstances to maintain their property in a safe condition."

Further, Defendant's assertion that it was in full compliance with the requirements of ANSI A117.1 and the ADA does not render Marletta's and Jimenez's opinions inadmissible. Notwithstanding that Defendant is effectively disputing the factual assumption that it was not in compliance, which goes to weight, not admissibility, compliance with codified safety standards is not dispositive on the issue of negligence.

Accordingly, the Court denied Defendant's motion to preclude the reports and testimony of Marletta and Jimenez on the grounds of their reliance on ANSI A117.1 and the ADA.

3. Other Relevance Challenges

Defendant's other relevance challenges are similarly unavailing. Defendant raised various arguments seeking to exclude specific portions of Marletta's and Jimenez's opinions; however, each argument either goes to weight, not admissibility, is overcome by the low relevance threshold, or is based upon Defendant's misguided view of the applicable standard of care.

First, Defendant sought to exclude Marletta's opinion that the space between the tire stop and Defendant's building was insufficient. In doing so, Defendant argued that Marletta's opinion is irrelevant because it is based upon an erroneous assumption that the space between the tire stop and the building is a sidewalk. This is a challenge to a factual assumption underlying Marletta's opinion and therefore goes to weight, not admissibility. The same reasoning applies to Marletta's opinion that Defendant was on notice of the tire stop being a hazardous condition due to prior accidents.

Defendant contended that the prior accidents are irrelevant because they are "totally unrelated," but that argument effectively challenges Marletta's factual assumption that the accidents were similar to the one here. Therefore, Defendant's argument goes to weight, not admissibility.

Next, Defendant sought to exclude Marletta's opinions about Defendant's failure to keep the parking area free from hazardous conditions. In doing so, Defendant argued that the photographs taken by Plaintiff show that the parking area was well maintained and that the tire stop was in good condition. Defendant's argument, therefore, is that Marletta's conclusion is incorrect; this goes to weight, not admissibility.

Defendant also sought to exclude Marletta's discussion of how the site plans of the parking area do not match the completed construction. Defendant contended that the asserted discrepancy is irrelevant as it has "no impact on whether or not the mere existence of the tire stop in the parking lot constituted negligence on the part of the tenant, [Defendant]."

However, as noted above, relevance is a low bar. To prove negligence, Plaintiff is required to prove that Defendant failed to take reasonable care to maintain its property in a safe condition. Plaintiff's theory for doing so is that the tire stop constituted a tripping hazard, and that Defendant was on notice of the hazard but failed to remedy it. Accordingly, Marletta's discussion of the discrepancy between the site plans and the completed construction, which "shows that wheel stops were not supposed to be installed" where they were, makes it more probable, at least marginally, that the tire stop constituted a hazardous condition. To the extent Defendant contends that the probative value of the site plan discrepancy is substantially outweighed by the danger of unfair prejudice, any potential prejudice can be mitigated by cross-examination. Therefore, Marletta's discussion of the site plan issue is relevant to Defendant's alleged negligence.

Similar relevance reasoning applies to Jimenez's discussion of exit and egress. In forming his opinion on the dangerousness of the tire stop and the cause of Plaintiff's injury, Jimenez relied on New York City Building Code, International Building Code, and Occupational Safety and Health Administration standards for safe exit and egress from buildings into public spaces. Defendant argued that because it is undisputed that Plaintiff was in the process of entering the building when the accident occurred, safety standards concerning exit are irrelevant. However, even though it is undisputed that Plaintiff was entering the building, Defendant's asserted failure to comply with exit and egress safety standards makes it more likely that it failed to maintain its property in a safe condition.

To the extent Defendant argued that the probative value of Jimenez's discussion of exit and egress safety standards is substantially outweighed by the danger of unfair prejudice, any potential prejudice can be mitigated by cross-examination. Accordingly, Jimenez's discussion of exit and egress safety standards is relevant to the issue of negligence.

Finally, Defendant sought to exclude Marletta's and Jimenez's discussions regarding alternative methods to prevent building intrusion. Both experts suggested that concrete bollards are a safer alternative to tire stops to prevent cars from coming in contact with buildings. Defendant contended that these discussions "provide no probative value" because concrete bollards are not required by the New York City Building Code. However, as discussed above, the New York City Building Code does not prescribe the applicable standard of care, and whether Defendant could have included safer features than tire stops in the parking lot is relevant to whether Defendant took "reasonable care under the circumstances to maintain [its] property in a safe condition." Defendant's attempt to exclude Marletta's and Jimenez's discussions of alternative methods to prevent building intrusion on the grounds of relevance is therefore unavailing.

B. Reliable Principles and Methods

Defendant asserted that Marletta's report and anticipated testimony are not the product of reliable principles and methods.

Defendant specifically challenged Marletta's opinion regarding the lack of contrast between the tire stop and the asphalt surface of parking lot. On this issue, Marletta analyzed the Light Reflectance Value ("LRV") taken with a contrast meter and found that the tire stop had an LRV of 5 while the underlying asphalt surface had an LRV of 12. Marletta noted that "although not yet adopted into our codes, research from multiple sources supports that at least a 30-point [LRV] difference, at a minimum, between surfaces is needed to provide surface contrast acceptable for handicapped use," and thereby concluded that "there is no significant difference in contrast between the wheel stop and parking area exterior surfaces." Defendant argued that because Marletta does not provide references to any of the "multiple sources" supporting the 30-point LRV differential standard, his "unsupported opinion is insufficient to meet the threshold requirements of Rule 702(c)," and his report and testimony should be excluded in their entirety.

Defendant's reliability argument is unavailing. Here, Defendant did not challenge the reliability of Marletta's LRV methodology, nor did Defendant challenge the analytical connection between LRV and Marletta's conclusion regarding the lack of contrast between asphalt and the tire stop. Rather, Defendant challenged Marletta's failure to identify the "multiple sources" supporting the 30-point LRV differential standard.

This dispute as to a lack of textual support for Marletta's opinion goes to weight, not admissibility. Further, even if the Court were to find Marletta's LRV contrast opinion unreliable and therefore inadmissible, that finding would not warrant wholesale exclusion of his report and testimony, as Defendant suggests.

Held

The Court denied Defendant's motion to strike the reports and to preclude the opinions and testimony of Dr. William Marletta and David Jimenez.

Key Takeaway

When an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony. However, an expert need not back his or her opinion with published studies that unequivocally support his or her conclusions.

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