Court – United States District Court for the Southern District of Georgia Jurisdiction – Federal Case Name – Padgett v. Kmart Corp. Citation – 2016 U.S. Dist. LEXIS 88734
In a premises liability case involving a parking lot assault, a retail parking lot safety expert’s testimony renders Daubert’s reliability factors largely unhelpful. Nevertheless, the court is satisfied the expert’s experience was reliably used to reach his conclusions, admitting the majority of his testimony with only a few exceptions.
Facts
Plaintiffs Tammy Padgett and her husband, Joey Padgett, brought a premises liability claim against defendants Kmart Corporation and Colony Mill Enterprises, LLC following the parking lot assault on Mrs. Padgett that occurred on the evening of December 21, 2013. Colony Mill, the parking lot owner, had leased the lot to Kmart. In the complaint, the plaintiff asserted that the defendants had a duty to make the premises reasonably safe for customers, that the incident was reasonably foreseeable, and that the attack was a direct and proximate result of the defendants’ failure to keep the premises safe. The plaintiff’s husband also asserted a claim for loss of consortium.
To support their allegation that defendants failed to make the premises reasonably safe for customers, the plaintiffs retained Jeffrey H. Gross, a retail parking lot safety expert witness. The expert inspected the property on September 2, 2015, and offered 11 conclusions in his expert witness report.
An Expert’s Qualifications Speak Volumes
Challenging Mr. Gross’ qualifications, the defendants argued that he was not qualified to testify as a safety expert witness in this case. They cited that the expert’s entire career was based in hotel loss prevention and that he had minimal experience working with big-box retail stores.
In response to this, the court noted that Mr. Gross had an associate’s degree in industrial safety and security, had been a commercial premises liability consultant for the past 16 years, and had 36 years of experience and training in assessing risks and threats on commercial premises. It was also noted that Mr. Gross was a member of the American Society of Industrial Security, American Society of Safety Engineers, and the National Safety Council. He also lectured at continuing legal education programs, spoke at the premises liability seminar at the State Bar of Georgia, and had produced policies and procedures for in-house security departments for patrolling commercial parking lots and grounds. It was held that Mr. Gross was qualified to testify under Daubert and FRE 702.
Relying on Industry Publications Makes a Difference
The defendants also challenged all 11 of the conclusions offered by Mr. Gross in his report. The first of his conclusions was that at the time of the attack, neither of the defendants had a security plan in place. The defendants asserted that these opinions were irrelevant since the expert did not point to supporting publications, treatises, or peer reviewed articles. However, the court held that some types of expert testimony, such as premises security testimony, may not be evaluated on the Daubert factors of testing, peer review and publication, potential rate of error, and general acceptance in the relevant community. Although the nature of Mr. Gross’s expert testimony rendered Daubert’s reliability factors largely unhelpful, the court was satisfied Mr. Gross experience was reliably used to reach his conclusions. The fact that he had also relied on material from the American Society of Industrial Security and the Encyclopedia of Security Management for guidance in conducting risk assessments helped the court find these opinions admissible.
Concerning Mr. Gross’ opinion…that the use of private security or off duty police officers to patrol parking lots is a usual, customary, and accepted practice in industrial, commercial, and retail settings, the court held it was reliable in light of 36 years of industry experience. The court also admitted his opinions regarding the benefits of using a patrol vehicle and high visibility security patrols, which could have warned a potential perpetrator that they would face an increased chance of detection and apprehension in the Kmart parking lot. Similarly, his opinions that the use of CCTV cameras would have deterred an attack, and that the lack of cameras provided an expectation of privacy for the attacker, were admitted.
Beware of Speculation
The court excluded 3 of Mr. Gross’ conclusions as speculative and unreliable. Mr. Gross had asserted that “it was more likely than not the perpetrator was observing the area for a victim and used his bicycle to ride up on Ms. Padgett.” In his deposition, he admitted he knew of no evidence concerning when the assailant arrived in the parking lot, what he was doing in the parking lot before the attack, or how long he was in the parking lot before the attack. Similarly, he also asserted that it was “more likely than not the perpetrator considered an expectation of privacy and rapid escape from the location of this attack approximately 157 feet from the front doors of Kmart.” This opinion was bereft of factual support and improperly speculated into the mindset of an unknown assailant who was never apprehended and was hence excluded as well.
Lastly, the court also excluded Mr. Gross’ opinion that the defendants made no attempt to determine the types and frequency of crime taking place on their property in the 10 years prior to the attack. The defendants argued that under Georgia law, a property owner has no duty to investigate police files and determine whether criminal activities have occurred on the premises. Hence, this opinion, which was an alleged statement of fact with no foundation, was also excluded by the court for being a mere fact imp
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