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Photographs Insufficient to Prove “Dangerous” Crosswalk in Slip-and-Fall Case

One of the most common types of personal injury claims against the owner of a business or other premises is the “slip and fall.” Essentially, there is a hazardous condition on a given property that causes a visitor to slip, fall, and suffer some form of serious injury. Under Georgia law, the premises owner may be liable if he or she knew—or should have known—about such an “unreasonably dangerous” condition and failed to take appropriate steps to remedy it.

Alsip v. Wal-Mart Stores East LP

Proving whether an “unreasonably dangerous” condition exists often requires a careful examination of the facts surrounding a particular accident. A Georgia judge will not simply take a plaintiff at his or her word that there was a hazardous condition. To the contrary, it is often necessary for a plaintiff to employ one or more technical experts who can explain to the court why the premises owner failed to act in an appropriate manner.

For example, the U.S. 11th Circuit Court of Appeals in Atlanta recently dismissed a slip-and-fall case due to insufficient expert testimony. The plaintiff was an 83-year-old woman who slipped and fell in the crosswalk leading to the entrance of a store. The plaintiff suffered a fractured hip and subsequently sued the store owner for negligence, alleging the crosswalk was “not slip resistant in accordance with industry standards.”

Sadly, the plaintiff died while her lawsuit was pending, so her estate continued the case in her place. The estate presented an expert witness who reviewed photographs of the crosswalk in question and related visual evidence. Based on this, the expert said in an affidavit that the painted stripes on the crosswalk “were not a slip-resistant surface.” The store challenged these conclusions and moved to exclude the expert’s testimony and dismiss the lawsuit.

A trial judge granted both motions, and on appeal the 11th Circuit affirmed that decision. The appeals court noted that although the expert was qualified to testify as to the proper standards for slip-resistance in sidewalks, in this particular case he relied on an “unreliable methodology” in assessing the defendant’s crosswalk. Specifically, the court cited the fact the expert only looked at photographs rather than performing slip-resistance tests on the crosswalk itself. The appeals court noted the expert admitted that “he does not know the actual slip resistance of the crosswalk stripes at the time of [the victim’s] accident or whether the crosswalk stripes qualified as a high-traction area.” Accordingly, the trial court was right to reject the expert’s testimony and dismiss the lawsuit.

It should be noted this case originated in Alabama. The 11th Circuit has jurisdiction over all federal cases from Alabama and Georgia. While federal courts apply state law in determining liability in slip-and-fall cases such as this one, they do so under the federal rules of evidence. This means that federal courts in Georgia are required to apply the rules of evidence in a similar manner as the case described above.