{"id":568,"title":{"rendered":"A Coming of Age: The Routine Admissibility of Retail Safety Expert Opinions in Federal Civil Cases"},"content":{"rendered":"

\r\nTheodore E. Karatinos & Shaheen Nouri1<\/a> <\/span> 1 <\/span>Theodore Ted<\/q> E. Karatinos, Esq<\/a>. has taught litigation-related classes at the Stetson University College of Law since 2002. He practices personal injury law at the Holliday Karatinos Law Firm and may be contacted at tedkaratinos@helpinginjuredpeople.com<\/a>. Shaheen Nouri is a currently a Juris Doctor Candidate at the Stetson University College of Law and serves as a teaching fellow for pre-trial litigation courses.<\/span><\/sup>\r\n<\/h2>\r\n
\r\n4 Stetson J. Advoc. & L. 193 (2017)<\/b>\r\n<\/div>\r\n

\r\n<\/a>I. Introduction\r\n<\/h2>\r\n\r\n

<\/a>Given sufficient data, the well-reasoned opinions of retail safety experts should be admitted in federal civil trials. In recent years, the field of retail safety has significantly matured.2<\/a> <\/span> 2 <\/span>The authors define retail safety<\/q> as loss prevention, risk management, facility management, and commercial maintenance practices.<\/span><\/sup> Given the recent developments in the field, barring the admissibility of safety opinions under Federal Rule of Evidence 702 should only occur in extraordinary circumstances. To avoid the exclusion of their forensic opinions, retail safety experts must present their opinions within the proper court-related context.<\/p>\r\n\r\n\r\n

<\/a>Retail safety experts can run the gauntlet of the federal rules of evidence by familiarizing themselves with the requirements. They must frame their qualifications in terms of knowledge, skill, experience, training, [and] education.<\/q>3<\/a> <\/span> 3 <\/span>Fed. R. Evid<\/span>. 702<\/a>.<\/span><\/sup> They should organize their forensic reports within the procedural framework of Federal Rule of Civil Procedure 26(a)(2), while drafting the content of their reports within the framework of Federal Rule of Evidence 702. Their reports must educate the federal judiciary on the widely-accepted standards used in risk management, facility management, loss prevention, and commercial maintenance. Evidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence.<\/q>4<\/a> <\/span> 4 <\/span>Silverpop Sys. v. Leading Mkt. Techs., Inc.<\/i>, 641 F. App'x 849<\/a> (11th Cir. 2016) (citing Muncie Aviation Corp. v. Party Doll Fleet, Inc.<\/i>, 519 F.2d 1178<\/a> (5th Cir. 1975)).<\/span><\/sup> Stated another way, a business owner breaches the duty of care owed to its customers when it allows a dangerous condition or defect to exist on the premises if that condition or defect was created by the owner, operator or his agent; or, if the condition is created by someone else, when the business owner had actual or constructive notice that the dangerous condition or defect existed prior to the injury.<\/q>5<\/a> <\/span> 5 <\/span>Morris v. Wal-Mart Stores, Inc.<\/i>, 330 F.3d 854<\/a>, 858 (6th Cir. 2003).<\/span><\/sup> By incorporating the requirements of the federal rules into their reports, retail safety experts will secure the admissibility of their opinions in federal court.<\/p>\r\n\r\n

\r\n<\/a>II. The Matured Field of Retail Safety\r\n<\/h2>\r\n\r\n

<\/a>Within the past ten years, groups, associations, and governmental entities have developed accepted retail safety standards. These developments reflect a push toward uniformity in securing a safe retail environment for vendors, customers, and employees. For example, the International Sanitary Supply Association [ISSA] published a set of cleaning industry management standards in 2006.6<\/a> <\/span> 6 <\/span>Cleaning Industry Management Standard<\/cite><\/a>, ISSA (2006).<\/span><\/sup> In that publication, the ISSA outlines the minimum accepted standards for the following, with references to all pertinent OSHA standard subsections:<\/p>\r\n\r\n