WA Case Update: Will a Conclusory Expert Declaration Preclude Summary Judgment?

From the Desk of Kyle D. Riley: In a slip and fall case, will an expert’s declaration concluding that a condition on the property is dangerous be enough to survive a summary judgment motion? Read on to see how the Washington Appeals Court answered this question.

Claims Pointer: The Washington Court of Appeals affirmed the grant of summary judgment in favor of Albertson’s, holding that the plaintiff did not establish through expert testimony that Albertson’s had notice of a dangerous condition on the premises. While the expert’s declaration provided statements including that the mat in question was flimsy, unsecured and created an unreasonable trip hazard, the Court of Appeals found that the trial court may disregard the expert’s affidavit where it provides legal conclusions rather than new factual information. Mere legal conclusions of an expert will not prevent a case’s dismissal through summary judgment.

Smith v. Albertson’s LLC, No. 46875-1-II, Washington Appeals Court, Div. I (Feb. 29, 2016)(unpublished).

Barbara Smith (“Smith”) visited an Albertson’s store. Once inside, she immediately walked the length of two long, narrow carpeted mats meant to protect against moisture. Smith proceeded further and stepped onto a shorter mat by a flower display with her left foot. She took another step and her right foot snagged against the edge of the mat, causing the mat to bunch up. Smith tripped on the bunched up mat and fell into the flower display. Her fall was recorded by the store’s security camera.

Smith sued Albertson’s alleging she suffered injuries due to its negligence. The trial court ultimately granted summary judgment, agreeing with Albertson’s that Smith could not prove that the mat was a hazardous condition nor that Albertson’s had notice of any danger.

The Washington Court of Appeals affirmed the decision of the trial court, ruling that summary judgment was proper because Smith did not establish that Albertson’s had notice of...

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