California Appellate Court Upholds Summary Judgment Where Expert Offers No Factual Basis for Opinion

The California Court of Appeals recently upheld summary judgment in favor of both defendants, an escalator manufacturer and Nordstrom department store, in a case where a shopper alleged she sustained injuries when an escalator stopped during a power outage. The court held that the opinions of the plaintiff’s motion engineering expert lacked adequate foundation. Bozzi v. Nordstrom, Inc., 111 Cal.Rptr.3d 910 (Cal. Ct. App. 2010).

The plaintiff was riding a Nordstrom escalator when an automobile accident outside the store caused an electrical service interruption, temporarily stopping power inside the store. The lights went out and the escalator stopped. The plaintiff had been holding on to one or both of the handrails, but alleged she was injured when her left foot moved down one step on the escalator. She did not fall. The power was out for approximately one minute before it was restored, at which time the lights came back on, the escalator descended to the first floor, and the plaintiff walked out of the store.

The plainitff sued both parties for negligence and failure to warn and included a strict liability action against the escalator manufacturer. It was the plaintiff’s theory that the defendants should have supplied an alternate power source for the escalator or otherwise have designed and maintained it such that it would have slowed to a gradual stop when the power went out. In support of her theory and in an effort to withstand summary judgment, the plaintiff proffered a motion engineering expert, who opined that there was “certain technology” available at the time of the escalator’s placement in 1985 that would have prevented the abrupt stop of which the plaintiff complained. It was his opinion that the fact that the escalator came to a jolting stop proved that there was a defect, because a properly designed and maintained escalator should not stop abruptly.

Although both the trial and appellate courts held that the plaintiff’s expert was properly qualified, they excluded as speculative and without foundation his conclusion that the escalator’s failure to come to rest in a power outage constituted faulty design or maintanence. An important factor in the courts’ conclusion was that the proffered expert had never seen, ridden or inspected the escalator. The appellate court held that he “relied on nothing more than syllogistic reasoning to conclude that if an escalator stops abruptly, it must have been defectively designed or maintained.”

An opinion is, according to the court, “only as good as the facts and reasoning on which it is based.” Because this expert failed state any facts to support his opinion, it was not appropriate for summary judgment analysis. This case is another illustration of an important defense victory where a plaintiff seeks to create issues of fact by offering unsubstantiated expert opinions.

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