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EXPERT OPINION NOT BASED IN FACTS IS INSUFFICIENT TO SHOW A TRIABLE ISSUE OF FACT
Bozzi v. Nordstrom, Inc., et al.
(Cal. App. Ct. 2010)
In a written opinion issued July 13, 2010, the California Court of Appeal affirmed a trial court’s granting of summary judgment based upon Plaintiff’s failure to establish a triable issue of fact that Defendants breached any duty of care or that the subject escalator was defective in design or maintenance. The Court held that Plaintiff’s expert witness declaration filed in opposition to summary judgment was insufficient to establish a triable issue of fact where the expert’s opinions did not state any facts in support thereof.
Factual Background
Plaintiff Katya Bozzi (hereinafter “Bozzi”) alleged that she suffered personal injuries in 2006 when the escalator on which she was riding at a Nordstrom store abruptly stopped. The escalator stopped as a result of an electrical service interruption, which also caused the lights in the store to go out. Bozzi alleged that because the escalator stopped abruptly, her left foot moved down one step, though she did not fall. After a minute the power returned, Bozzi rode the escalator to the first floor and walked out of Nordstrom.
Bozzi subsequently sued Nordstrom for negligence and premises liability. Bozzi also sued Kone, Inc. (hereinafter “Kone”), the successor to the elevator’s manufacturer, for negligence and strict product liability. Nordstrom and Kone filed separate summary judgment motions, arguing that the escalator was not defective and that Bozzi was not injured as a result of negligence in design, manufacture, installation, or maintenance.
Nordstom’s and Kone’s summary judgment motions were supported by a similar declaration of Davis Turner (hereinafter “Turner”). Turner opined, based upon his personal inspections, review of state requirements and industry standards, review of records, manufacturing blueprints, maintenance records, and technician’s guide, that Bozzi was not injured by any defect in design or manufacture of the escalator; nor by any negligence in design, manufacture, installation or maintenance.
In opposition to summary judgment, Bozzi offered an expert declaration from Dr. Jose Maatuk (hereinafter “Maatuk”). Maatuk never inspected the escalator and stated that he could not determine whether the escalator was properly maintained from 1985 through July 2005. Maatuk further stated that it was impossible to determine, among other things, what design or manufacturing defect caused the escalator to stop abruptly. Maatuk opined that Bozzi’s testimony that the escalator came to a jolting stop proved there was a defect, because a properly designed and maintained escalator should not stop abruptly. Maatuk further opined that Nordstrom should have had a backup generator to run the escalator in the event of a power outage. The court granted summary judgment in favor of Nordstrom and Kone.
The Appellate Court’s Holding
On appeal, the Appellate Court affirmed summary judgment in favor of Nordstrom and Kone. The Court further affirmed the trial court’s ruling that Maatuk’s expert opinions lacked any factual foundation and were conclusory and speculative. In supporting this latter conclusion, the Court pointed out that Maatuk had never seen, ridden, or inspected the escalator; could not determine whether the escalator was properly maintained between the time it was installed in 1985 until 2005; acknowledged that California state agencies inspected and approved the escalator in 2005 and 2007; found it impossible to determine what design or manufacturer’s defect caused the escalator to stop abruptly in 2006; and relied upon nothing more than syllogistic reasoning to conclude that if the escalator stopped abruptly, then it must have been defective in design and/or maintenance.
Based upon the lack of factual support in favor of his opinions, the Court ruled that Maatuk’s opinions were insufficient to create a material dispute, noting that an “opinion is only as good as the facts and reasons on which it is based.” (Citing Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) The Court took exception to Maatuk’s failure to address Nordstrom’s and Kone’s evidence demonstrating, among other things, that the escalator was state-of-the-art when manufactured; had the most comprehensive maintenance available, was inspected on average every 24 days; had a new state-of-the-art brake that had never failed to operate; and had posted warnings that met industry standards and code requirements. As to this undisputed evidence, the Court stated that “[a]n expert’s speculations do not rise to the status of contradictory evidence, and a court is not bound by expert opinion that is speculative or conjectural. . . . [Parties] cannot manufacture a triable issue of fact through use of an expert opinion with self-serving conclusions devoid of any basis, explanation, or reasoning.” (Citing McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1106.)
Finally, the Court rejected Bozzi’s argument that Nordstrom owed her a heightened duty of care, including using the utmost care and diligence to do everything necessary to keep her safe on the escalator. The Court noted that Bozzi offered no admissible evidence that either Nordstrom or Kone could have done anything more to avoid a sudden stop in a power outage. The Court summarily rejected Maatuk’s opinion that a backup generator should have been used in the event of a power outage, noting that (1) even if a generator was utilized, it would still take time for the generator to kick-in during a power outage, resulting in the same stopping action; and (2) it would be ill advised for the escalator to continue running while the lights were out.
If you need a copy of the opinion or would like to discuss these issues please contact us.
Frank T. Sabaitis
Brad A. Byszewski
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