Tioga Slip and Fall Case Study Part 2: The Importance of Expert Witnesses

Several prior posts have examined the critical role that expert witnesses can play in a personal injury lawsuit. The Peoples v. Fred’s Stores of Tennessee, Inc., No. 09-1270 (Ct. App. of La., 3d Cir. 2010) case offers a similar example of how expert testimony can be invaluable to a plaintiff. (For a brief background on this case, please see Part 1 of this post series.)

In addition to the dispute over notice, Fred’s Store’s appeal also challenged the trial judge’s admission of testimony by Peoples’s expert witness, Michael Frenzel. Frenzel was a board-certified safety professional who owned a company that offered safety program mangement services. At the time of the trial, he had 35 years of experience in the safety field. Prior to the trial, Frenzel reviewed the accident report, photos of the accident scene, and a diagram of the store. He also personally visited the Fred’s Store in Tioga to view the premises. Frenzel testified that the two gazebo boxes that Peoples tripped over “amounted to a trip hazard that presented an unacceptable level of risk to Fred’s customers.” He explained that, regardless of their precise location, two boxes laying flat on the floor would pose a risk to a customer entering the store given that the customer’s attention would likely be drawn to the other merchandise. This was especially the case, according to Frenzel, because the boxes were white in color and had a low profile against the white background of the floor. Frenzel further referenced the “universal, industry-wide standard minimum height recommended for floor displays to prevent tripping hazards,” and even identified a section in the store’s own safety manual that addressed tripping hazards. Finally, Frenzel testified that in his opinion Peoples “did nothing wrong,” and that “only Fred’s could have taken corrective action in this situation.”

Fred’s Store sought to exclude Frenzel’s damning testimony on the basis that he was not an eyewitness to the fall and therefore could not contribute to the resolution of any issues of fact. Also, Fred’s Store argued that expert testimony is not necessary in a trip and fall case. The Court of Appeals cited Louisiana Code of Evidence Article 702, which provides:

“[i]f scientific, technical, or other specialized knowledge will assist the trier of fact [here, the judge] to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

Furthermore, the Louisiana Supreme Court has made it clear that “a trial judge has wide discretion in determining whether to allow a witness to testify as an expert, and his judgment will not be disturbed by an appellate court unless it is clearly erroneous.” Mistich v. Volkswagen of Germany, Inc., 666 So.2d 1073, 1079 (La. 1996). Accordingly, the Appeals Court was

“convinced that the trial court did not abuse its wide discretion in allowing Mr. Frenzel to testify as an expert, given his extensive experience in the field of safety and his thorough preparation with regard to this case. Clearly, his testimony ‘assist[ed] the trier of fact to understand the evidence’ and ‘to determine a fact in issue.’”

The testimony and, in particular, the opinions put forth by Frenzel proved extremely helpful to Peoples in winning her case. Frenzel would not have been able to offer those opinions had he not been qualified by the trial judge as an expert. A successful expert witness qualification depends not only on the witness’s own education and experience, but also on the lawyer’s ability to properly present the witness’s credentials to the court. If you have been injured due to unsafe conditions at a store or other place of business, speak to an attorney who has solid experience in the strategies of personal injury litigation.

Call the Berniard Law Firm toll-free at 1-866-574-8005 to speak with an attorney who can help.

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