Duane Alsip v. Wal-Mart Stores East, LP
658 F. App'x 944
| 11th Cir. | 2016Background
- On April 24, 2013, 83-year-old Emma Alsip slipped on a painted crosswalk stripe in a Wal‑Mart parking lot during rain and fractured her hip.
- Plaintiff alleged Wal‑Mart negligently/wontonly failed to provide a slip‑resistant crosswalk, arguing the paint lacked aggregate (grit) as required by industry standards.
- Plaintiff’s proffered expert, Russell Kendzior (25 years in slip‑and‑fall prevention), reviewed photos, video, deposition testimony and industry guidance but never visited the site or performed contemporaneous slip‑resistance testing.
- Wal‑Mart conducted slip‑resistance testing in 2015 conforming to industry methods and argued those tests showed the crosswalk met high‑traction standards; Wal‑Mart also disputed Kendzior’s visual conclusion that aggregate was absent.
- The district court excluded Kendzior’s testimony under Daubert as methodologically unreliable and granted Wal‑Mart summary judgment, finding no evidence the surface was unreasonably dangerous beyond ordinary rain‑slicked pavement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert testimony under Rule 702/Daubert | Kendzior’s experience and review of photos/videos and standards reliably show lack of aggregate and insufficient slip resistance | Kendzior did not test the surface, never visited the site, and relied on visual photo inspection and speculation | Court affirmed exclusion: Kendzior’s methodology unreliable because absence of aggregate (via photo) does not prove lack of all means of traction and he admitted only testing can determine slip resistance |
| Causation / existence of an unreasonably dangerous condition under Alabama law | Lack of aggregate (and layered paint without removing underlying layer) made the crosswalk unreasonably dangerous and caused the fall | Rain makes surfaces slippery; Wal‑Mart’s later tests show compliance with high‑traction standards; plaintiff offers no evidence the surface was abnormal or more dangerous than typical wet pavement | Summary judgment affirmed: no evidence aside from the fall that crosswalk was unreasonably dangerous or defective beyond ordinary rain slickness |
| Whether aggregate is necessary to meet industry slip‑resistance standards | Aggregate was essential; its absence renders surface non‑slip‑resistant | Aggregate is not the only means; cross‑cut grooving, texturing, or other methods also create traction | Court: aggregate not essential; absence of aggregate alone insufficient to show nonconformity |
| Reliance on post‑accident testing to establish condition at time of accident | Post‑accident testing is unreliable to show historic condition | Post‑accident testing performed by Wal‑Mart was consistent with industry methods and undermines plaintiff’s claim; plaintiff’s expert also admitted contemporaneous testing is required | Court accepted that expert admitted only contemporaneous testing can determine slip resistance, and plaintiff produced no admissible evidence to create a factual dispute |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (expert‑opinion admissibility standard)
- Seamon v. Remington Arms Co., LLC, 813 F.3d 983 (11th Cir. 2016) (deference to district court Daubert rulings)
- Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296 (11th Cir. 2014) (rejecting unscientific speculation presented as expert science)
- McClain v. Metabolife Int’l, Inc., 401 F.3d 1233 (11th Cir. 2005) (flawed logic can undermine expert reliability)
- Anderson v. Cagle’s, Inc., 488 F.3d 945 (11th Cir. 2007) (summary judgment standard on appeal)
- Terrell v. Warehouse Groceries, 364 So. 2d 675 (Ala. 1978) (customers familiar with ordinary slipperiness when it rains)
- Wal‑Mart Stores, Inc. v. White, 476 So. 2d 614 (Ala. 1985) (definition of unreasonably dangerous condition/abnormality)