Bruce Bunting slipped and fell on a mix of salt and water on the walkway outside a District of Columbia CVS store on Christmas Eve, sustaining a significant ankle injury. Bunting and his wife sued CVS in D.C. Superior Court alleging negligence, negligence per se, and loss of consortium. The case was removed to federal district court, where CVS moved for summary judgment. The district court granted CVS's motion, ruling that the plaintiffs failed to provide expert testimony creating a genuine issue of material fact regarding the walkway's dangerousness because the expert had tested the surface with water rather than the salt-water mixture present at the time of the fall. The district court also dismissed the negligence per se claim, concluding the relevant municipal regulation did not establish a duty different from the common law duty of care. The Buntings appealed, arguing that the expert testimony was sufficient to create a triable issue and that the regulation should support their negligence per se claim.
The D.C. Circuit reviewed the summary judgment de novo, applying D.C. tort law. On the negligence claim, the court agreed that expert testimony was required to establish the standard of care because the coefficient of friction is a matter beyond the average juror's ken. However, the court held that the district court erred in granting summary judgment because the expert testimony presented created a genuine issue of material fact. The plaintiffs' expert testified that the fall could not have occurred unless the coefficient of friction was far below 0.50, and CVS's own expert produced field notes indicating a coefficient of 0.49. The court reasoned that the inability to positively identify the salt-like substance did not preclude a jury trial, as a reasonable jury could conclude the substance did not mitigate the danger. The court emphasized that while expert testimony was needed to prove the surface was dangerously slippery, no further expert testimony was required for the jury to determine whether CVS breached its duty of care under the circumstances. Regarding the negligence per se claim, the court analyzed D.C. Municipal Regulation section 2000.5, which prohibits leaving dangerous deposits on public space without protection. The court held that this regulation does not impose a duty distinct from the common law duty of reasonable care. Citing D.C. precedent, the court found that the regulation merely repeated the common law duty to protect persons from known hazards, and thus could not support a negligence per se claim.
The case is remanded to the district court for trial on the negligence claim, where the jury will determine if the walkway was unreasonably dangerous based on the conflicting expert testimony. The negligence per se claim remains dismissed, meaning the plaintiffs cannot rely on the municipal regulation to establish a breach of duty. On remand, the district court must also address CVS's alternative arguments regarding notice and the admissibility of the expert testimony under Federal Rule of Evidence 702, which were not previously decided.
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