Property Management Expert Lacks Qualifications to Opine on Asphalt Maintenance

Zach Barreto

Written by
— Updated on January 10, 2022

Property Management Expert Lacks Qualifications to Opine on Asphalt Maintenance

Court: United States District Court for the District of Nebraska
Jurisdiction: Federal
Case Name: Ackerman v. U-Park, Inc.
Citation: 2019 U.S. Dist. LEXIS 45860

Facts

This case involves a slip and fall that occurred in a parking lot owned by the defendant. The defendant’s co-owner was collecting parking fees when the plaintiff parked her car in the lot to attend a local function. The plaintiff claimed that, as she walked away from her car, she slipped and fell on a patch of black ice that she could not see because it had melted into the blacktop of the asphalt. No one saw her slip and the co-owner stated he was unaware of ice in the area where she fell. Although the parties disputed who was responsible for the condition of the asphalt, the parties agreed that the defendant was responsible for snow and ice removal and that the co-owner had thrice personally repaired the asphalt in the lot. The parties also could not agree on precisely how the ice formed, with hypotheses ranging from customers spilling bottles of water to cars leaking slush. To support her case, the plaintiff retained a property management expert witness.

The Property Management Expert Witness

The property management expert witness was a consultant whose practice focused on property management. His work included consultancy, teaching, and expert-witness programs in property management. The expert held a bachelor’s degree in business administration with a focus on economics. He also taught property management courses as an adjunct professor at the University of Nebraska-Omaha.

The expert toured the lot in question two years after the incident and noticed asphalt staining patterns. He also drove through the lot after a rain shower and saw water pooling in depressions around where the plaintiff fell. He took pictures of the lot, but not the exact parking spot where the fall occurred. From his examination, the property management expert witness inferred that there was effectively a total lack of maintenance and argued there was a significant depression in the asphalt where water pooled, referred to as a “birdbath” in the spot where the plaintiff fell. He also concluded that based on the asphalt discoloration found, the situation existed long before the plaintiff’s fall. The expert further observed that the lot’s natural drainage route should cause ice and snow to melt and flow to the birdbath in the stall, and led to black ice forming in and causing the fall. He suggested, among other issues, that an underground cable might have triggered a birdbath and argued that the defendant should have known of the birdbath’s presence and its ability to trap water and freeze.

Discussion

The court took issue with the property management expert opining on the management of asphalt-coated parking lots, the asphalt’s physical features, and the rate at which it deteriorates. The court also commented that the plaintiff failed to explain how the expert’s qualifications in property management made him qualified here to testify on asphalt. Though the plaintiff attempted to rely on the expert’s practical experience, he lacked the relevant academic qualifications. The court noted the plaintiff did not establish that the expert’s practical experience “[bore] a close relationship to [his] opinion,” citing Schmidt v. City of Bella Villa.

The court further noted that the plaintiff also failed to prove that the expert’s testimony was relevant and reliable. The expert acknowledged that he could not attest to the presence of a birdbath in the spot when the plaintiff slipped by personal observation, but he argued that he could infer that this birdbath existed long before the fall. The plaintiff did not offer any further explanation about how he could tell how long a birdbath existed by observing the asphalt stains.

Held

The defendant’s motion to exclude the property management expert’s testimony was granted.

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