Tonia Ackerman v. U-Park, Inc., 951 F.3d 929

On Feb. 13, 2016 Tonia Ackerman slipped and fell in U‑Park’s asphalt parking lot (Lot 13) after parking for an event; she alleged she fell on an unseen patch of black ice and sued for negligence; her husband sued for loss of consortium.
U‑Park’s attendant photographed the area ~30 minutes after the fall, spread ice melt, and testified he had not noticed ice before the fall; photos show a darker circular patch on asphalt.
Plaintiffs’ expert Philip Wayne (longtime property manager, no technical asphalt credentials) inspected the lot more than two years later, performed informal tests (rolling a volleyball, observing stains, driving after rain), and opined a long‑standing asphalt depression or "birdbath" caused pooling and black ice.
U‑Park moved to exclude Wayne’s causation opinion under Rule 702/Daubert and for summary judgment; the district court granted both motions.
The Eighth Circuit affirmed exclusion of Wayne’s opinion (finding his methods and qualifications insufficient) and affirmed summary judgment, concluding plaintiffs failed to show U‑Park had actual or constructive notice or should have anticipated Ackerman would fail to perceive the danger.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Wayne's causation opinion under Fed. R. Evid. 702/Daubert	Wayne’s property‑management experience and site inspections support reliable inference that a "birdbath" produced black ice causing the fall	Wayne lacks technical qualifications; his testing and methodology were anecdotal, post‑hoc, and speculative	Excluded: court held Wayne’s methods and application were unreliable and insufficiently tied to the facts to assist the trier of fact
Entitlement to summary judgment on premises‑liability/negligence	Black ice from a birdbath or other lack of maintenance caused the fall; Wayne’s opinion would raise fact issues on notice and causation	Ice was either (a) "black ice" not visible (no constructive notice), or (b) visible but isolated and existed too briefly for U‑Park to have notice; no evidence U‑Park should have anticipated invitee wouldn’t perceive the hazard	Affirmed summary judgment: plaintiffs failed to show U‑Park had actual/constructive notice or that U‑Park should have expected Ackerman would not discover the danger; without admissible expert evidence, no triable issue remained

Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579 (U.S. 1993) (sets admissibility factors for expert testimony)
Edwards v. Hy–Vee, Inc., 883 N.W.2d 40 (Neb. 2016) (articulates Nebraska elements for premises‑liability claims)
Cloonan v. Food‑4‑Less of 30th & Weber, Inc., 529 N.W.2d 759 (Neb. 1995) (constructive notice requires condition be visible/apparent and present long enough for discovery)
Crawford v. Soennichsen, 120 N.W.2d 578 (Neb. 1963) (business owner not liable for hazards that are known and so apparent invitee may discover)
Kozloski v. Modern Litho, Inc., 154 N.W.2d 460 (Neb. 1967) (thin ice forming without defendant's knowledge does not impose duty to inspect)
Lawrey v. Good Samaritan Hosp., 751 F.3d 947 (8th Cir. 2014) (standard of review for exclusion of expert testimony)
Glastetter v. Novartis Pharm. Corp., 252 F.3d 986 (8th Cir. 2001) (district court’s gatekeeper role to exclude speculation presented as scientific knowledge)
Beckley v. St. Luke’s Episcopal‑Presbyterian Hosps., 923 F.3d 1157 (8th Cir. 2019) (appellate court may affirm summary judgment on any supported ground)