Day on Torts
Where a trial court did not undergo the required analysis under Tennessee Rules of Evidence 702 and 703 before deciding to exclude plaintiff’s expert witness testimony in a premises liability case, summary judgment for defendant was vacated and the case was remanded.
In Linkous v. Tiki Club, Inc., No. E2019-00357-COA-R3-CV (Tenn. Ct. App. Nov. 22, 2019), plaintiff went to defendant restaurant/bar with his friends. While there, he went to the bathroom, which he had done numerous times on previous visits. On this particular occasion, it had been drizzling outside. The bathroom at defendant restaurant was “two portable restrooms that were located approximately three feet above the outdoor level of a floating dock and were accessible by metal stairs.” Defendant had purchased the bathrooms from another company and had self-installed the units. Plaintiff alleged that as he exited the bathroom on the night in question, “he slipped on the first step and fell several feet, sustaining multiple injuries.”
Plaintiff brought this premises liability suit, and defendant filed a motion for summary judgment asserting that it had no actual or constructive notice of the allegedly dangerous condition. Defendant asserted that any building codes would not have applied to the restroom structure, and that even if they did, they would only impose a duty on the company that manufactured the portable restroom. Defendant further alleged that it had never received any complaints about the bathroom structure before this incident.
Plaintiff responded to the summary judgment motion by claiming that the restaurant “installed the steps to the restroom facility in a way that was dangerous,” and he also contested the assertion that the building codes were inapplicable. As part of his response, plaintiff offered a report from his expert, a structural engineer, who found that the bathroom failed to comply with applicable building codes.
After a hearing, the trial court granted summary judgment to defendant. The trial court ruled that there was no evidence that defendant had altered the bathroom after purchasing it and that defendant had no notice of a dangerous condition. The trial court found that plaintiff “could not impute [the expert’s] knowledge regarding the applicable building codes and any code violations to Tiki in spite of [plaintiff’s] assertion that business owners have a duty to inform themselves of foreseeable harm to invitees.” The trial court thus ruled that the expert testimony would not be allowed, and because plaintiff could not create an issue of fact without his expert testimony, summary judgment was granted. This appeal followed.
The issue on appeal was whether the trial court had erred by excluding the expert’s testimony, with the Court of Appeals eventually deciding that the trial court had at least failed to undergo a proper analysis. Plaintiff argued on appeal that the expert’s testimony “would be relevant and necessary to show the improper installation and use of the portable restroom facility by Tiki.” Plaintiff’s expert had found nine areas of concern during a site visit, and plaintiff asserted that this testimony was relevant to the premises liability claim.
The Court noted that trial courts serve as “gatekeepers” for expert testimony. Tennessee Rules of Evidence 702 and 703 “require a determination as to the scientific validity or reliability of expert testimony, because only valid scientific evidence will substantially assist the trier of fact to determine a fact in issue…” (internal quotations and citation omitted). In previous cases, the Supreme Court has enumerated factors that should be considered when determining whether to admit expert testimony. In a 2015 case, the Tennessee Supreme Court stated that the “essential guidelines” for expert testimony admissibility should be “the reliability of the testimony and whether it provides substantial assistance to the jury.” (quoting Payne v. CSX Transp., Inc., 467 S.W.3d 413 (Tenn. 2015)).
In this case, however, the trial court “did not reference any evidentiary rule in support of its determination that [plaintiff’s expert’s] testimony would not be considered.” Further, the trial court “did not follow the ‘essential guidelines’ set forth in Payne and its progeny by making a threshold finding of the reliability of [the expert’s] testimony and whether it would provide substantial assistance to a jury.” The Court of Appeals explained:
If determined qualified, admissible, relevant, and competent, [plaintiff’s expert’s] opinion regarding the applicability of the [building codes] could create a dispute of material fact with regard to the applicable standard of care and Tiki’s constructive knowledge of the alleged defect. Specifically, [the expert’s] testimony regarding the installation and use of the portable restroom facility could assist the trier of fact in determining the duty, breach, and causal elements of negligence. …[Plaintiff] asserts that experts are routinely used in premises liability cases in Tennessee and that these experts generally rely on regulatory codes and industry standards when testifying. We agree.
The Court of Appeals ultimately ruled that because the trial court “failed to properly fulfill its gatekeeping function by not making a sufficient determination as to whether [the expert’s] testimony manifests the proper qualifications, admissibility, relevancy, and competency,” the trial court erred by excluding the evidence. Summary judgment was accordingly vacated and the case was remanded.
The Court of Appeals was correct to send this issue back to the trial court. If you are attempting to get expert testimony admitted in a case, this opinion contains a good summary of the analysis a trial court should engage in when determining expert admissibility.
NOTE: to aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers. Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented. In this case, the opinion was released about three months after oral argument.