Outdoor Photography
Those who know me well are aware if my passion for outdoor photography. I hinted at it in one of my earlier posts, but never really discussed it. I always travel with a camera close at hand. Since many of my cross country trips involved accident site inspections, the camera is a necessary tool. However, I always hope there is a chance to shoot something other than a site where people have been bend badly or mangled. So you can imagine the frustration of my last three trips: Eastern Idaho, Seattle and Houston. Idaho Falls was an over-nighter with a tight schedule, subzero temperatures and a snow storm; not a chance to travel the short distance to shoot Yellowstone in the winter. Seattle was a quick 22 hour round trip where I was lucky to escape before the whole area was closed down due to flooding and snow. I had a great view of a short line railroad yard outside of Houston and met an experienced and smart expert on trackage. While it was rewarding, I only saw freeways and railroad tracks. I think I will have to make a trip up to Bishop, California, to see what beautiful wonders God created for us. 
This is a section of Bishop Creek in the Eastern Sierras near South Lake. Of the thousands of scenic shots I’ve taken over the past few years, this is one of my favorites. I hope you enjoy it. ??????????? ?????? ??????
2009 Supplement to Slip and Fall Practice
Ancora Imparo ????????? ???????? ????????? ??????????? 10 48576 ???
These words were never more true! Spoken by Michelangelo when he was in his 80’s and still painting. He was asked “why are you still doing this?” His reply: “ancora imparo.” Yet I learn or I am still learning. I am working on the manuscript of the 2009 Supplement to Slip and Fall Practice. Each year I find changes in the statutes and case law regarding premises liability which is likely to have an impact on both the safety professional and the legal practitioner. A few years ago I revised the chapter on human factors; now it is time to make some major additions to the discussion of human locomotion. This whole area of study is rapidly expanding. I discovered over 300 peer reviewed papers on the subject of ground reaction forces (the forces generated between the foot and the walking surface during movement). In the past couple of months I have had cases where these forces have been substantial factors in evaluating the liability in cases involving walking on wet grass, uneven railroad ballast, cross slopes or ramps, stairways, tennis courts, parking lots, super market floors and others. I don’t anticipating reading all 300+ papers, but I will read at lest half of them. That”s approximately 1800 pages to be able to write a dozen or so new paragraphs in the book. There will likely be a couple of hundred more to read so I can comment further on the epidemiology of cumulative stress disease in knees, hips and ankles.
This year’s supplement will be published by James Publishing, Inc., in May or early June. I plan to include new law practice sections addressing evidence and discovery issues, ADA and other accessibility standards and guideline changes, the effect of changes to the International Building Code; and updates on lot of technical and legal stuff. Slip and Fall Practice was first published on 1988, so this is the 21 supplement. Each year presents a challenge to provide new and informative material for our readers. I have been able to meet that challenge only by the continued contribution and advice from my readers. Thank you!
A Glaring Problem
I had a recent case involving the issue of the amount of glare created by an improperly directed flood light which shined into the pedestrian’s eyes thereby causing him to stumble on an accumulation of ice and snow. In researching the literature, I found a reference to a study done by J. Silvers that determined that a light source of 5 foot-candles close to the central axis of vision resulted, in effect, in lowering the surrounding illumination to 1 percent of its original value. As a natural response to a bright light in the field of vision is for the pupil to contract and limit the amount of light striking the retina. This contraction reduces the ability to see the surrounding area similar to a substantial reduction in illumination. Researchers have estimated that the effect is about 100 to one. A walkway or stairway illuminated with a marginal level of 0.5 foot candles would have the same visibility as if it had been illuminated with only 0.005 foot candles if there were a glaring light source along the visual axis.
Lighting measurements of an accident site should consider not only incident light falling on surface but the light intensity of sources along the visual axis.
A Walk in the Park (Almost)
I had the good fortune to have a case last week near McGee Creek close to my Bishop home. This gave me an excuse to take my 15 month-old Golden Retriever, Cody, on a few long hikes. We started out with an easy stroll along the Hot Creek Gorge to take some photographs of the hot springs from a new angle. With some time left in the afternoon, Cody and I left the McGee Creek trail head toward Steelhead Lake. About 3 miles into the walk, we started to run out of daylight and had to make a hurried descent for a 4:00 PM inspection.
On the next day, we tried something more ambitious. Heading west out of Independence, we drove up to Onion Valley (elev. 9200) to attempt crossing Kearsarge Pass (elev. 11,825) and descend to the border of Kings Canyon National Park. At about 10,500 feet (well above the timberline) we lost the trail because of snow. On the way back as we neared the timberline, packing 15 pounds of camera gear paid off. As we rounded a rocky ledge, a 4-point buck was grazing about 20 feet away. Cody froze in place and I quietly got out my camera (fortunately it had a 55-300mm lens attached). The Sony A-100 is quiet, so I was able to get off about 20 shots before the deer wandered off. A couple of the were keepers and maybe one is a wall hanger. I was really proud of my puppy who dropped into the sit position and didn’t make a sound.
As a reward, Cody was permitted to make doggy snow angels and wade around in the 34 degree water of Independence Creek. My reward was a great day, a good hike with a trusted friend and the task of drying off a wet 80-pound dog before I let him back into the Jeep.
So when I become impatient and crotchety just send me off to the Eastern Sierras with my Golden and a new A900 full frame I am dying to try out. My soul and good humor will be rejuvenated guaranteed.
Chasing Rabbits in the Courtroom
While taking a short break during my deposition last week, the opposing attorney and I were trading memories of a trial encounter some 30 years ago. I had been retained by an attorney who had a reputation of specializing in slip and fall cases. I was lamenting that this attorney always wasted expert testimony because he would never focus on the real issues of a slip and fall case. Almost without exception, the single most important issue to be proved to the jury is notice. This is particularly true in supermarket and other retail cases. In this case, the defendant failed to conduct adequate inspections of the market, failed to document sweeping and cleaning spills in the public areas of the store, and failed to provide adequate instructions and guidelines to his employees regarding inspection, safety and maintenance. Even though I drafted maintenance and safety procedures for several supermarket chains, and had reviewed hundreds of manuals, depositions and transcripts addressing the industry custom and practice for inspections and sweeping of the markets, I was offered as an expert to provide testimony in only a single area: Slipping hazards on floors contaminated with spilled cooking oil.
Defense counsel properly objected to the proposed testimony because it was common knowledge that oil on a smooth floor would likely be slippery and dangerous. The court ruled that it did not require a Nobel Prize winner or even a recognized safety expert’s opinion for the jury to reach that opinion, therefore he prohibited my testimony on this issue. My client was not prepared to offer and did not disclose any additional testimony on the standard of care and breach of industry practice by the defendant. In the absence of this constructive notice testimony, the jury found for the defendant.
The moral of this story is stay focused on the basic issues of the case. While establishing that a hazard existed is necessary, the real issues in the case were notice, breach of duty and the resultant damages. Expert testimony is helpful in proving the hazard, but it is likely to be necessary to establish notice and breach.
Quoting from a 1969 lecture of mine, the deposing attorney asked: ” Is it still your opinion that the major role of an liability expert is to reinforce the conclusions that the jury has already reached?” My response was that the role of the expert is to assist the jury in understanding the technical or scientific evidence and to provide them with the industry, governmental or scientific standards used for evaluation.” On reflection, that 40-year old quip is not far off the mark. The collective intelligence of the jury is usually far superior to that of either expert or attorney. To use a construction analogy, if we provide adequate and quality blocks of knowledge and the basis of evaluation, the jury will easily complete the structure.
First Principles of Visibility
Over the past three months, I have been retained on nearly a dozen cases where one of major issues was whether or not the pedestrian could or should have seen a hazard on defect on the floor or walkway. In some cases, it was simply a matter of inadequate light; other cases involved obstructed lines of sight and four were caused by a lack of adequate contrast. Reasonble safey procedures require that changes of elevation, spills, debris or defects in the walkway be readily visible to the pedestrian under reasonably foreseeable use condition.
The first principles of visibility are simple:
Line of Sight: provide an unobstructed line of sight to those locations or objects that need to be seen to doa job or negotiate the area safely and efficiently.
Contrast:
provide enough contrast between the luminance of the object or location of interest and the background against which the pedestrian sees the object to ensure that it is visible.
Line of sight is necessary since the visibility of an object decreases if the view of the object is physically obstructed. In pedestrian fall accidents, spills can be hiding behind closed doors, tripping hazard behind merchandise displays or tripping hazards at endcaps of merlchandise aisles.
Contrast is the difference between the luminance of the object and the luminance of the background the object is seen against. The greater the luminance difference, the greater the contrast and the greater the visiblilty. Color contrast can be a important factor in increasing visibility. For example, painting the edge of a single riser yellow or orange can act as a visual cue the change thereby pulling the pedestrian’s attention to the condition.
Other factors that affect visiblility are adaption level since the visibility is greater when the eye is adapted to the luminance level of the target and surrounding area; observer’s age
may be a factor because the measured contrast sensitivity of a person decreases as he ages; objects become more visible when it is larger
in the observer’s field of view; the longer the viewing time the greater the visibility; and movement of the targer object or the observer can decrease visibility.
Defects may have a low visibility but are not invisible. What may be visible on inspection and examination would not necessarily be visible to the casual pedestrian.
New Research Project
Liberty Mutual Research Center for Safety and Health sponsored a study in an attempt to correlate surface roughness to “dynamic friction” of ceramic tiles. The work was published in 2001 in Applied Ergonomics, volume 32, Issue 2, pp173-184, Author Wen-Ruey Chang. This is similar to a later publication by Li, Chang, Leamon and Chen Floor Slipperiness Measurement; Friction Coefficient; Roughness of Floors, and Subjective Perception Under Spillage Conditions, Safety Science, Vol. 42, pp 547-565 (2004). Chang, et al., used a profilometer to determine the roughness of the floor surface and a Brungraber Mark II to determine the slip resistance under dry and contaminated conditions.
Turnbow Research Laboratories, Inc. has recently contracted with a major tile manufacturer to determine if there is a correlation between surface roughness and slip resistance measured using the testing protocal established in ASTM Standard Method F-1679 using the English XT (VIT) under dry and wet surface conditions. We anticipate that a total of 30 different ceramic and CVT surfaces will be tested. For a basis of comparison, each sample will be metered using other commercial slip resistance testing devices.
Award
The re-trial in St. Louis resulted in a very favorable 7-figure verdict. The plaintiff’s team of attorneys did an impressive job. They were organized, concise and focused on the issues. The defense (a large railroad) attempted to not only cloud the issues, but attempted to disrupt the plaintiff’s case with repeated objections and sidebard conferences. By being completely focused on the issues and well organized in the presentation of evidence, the plaintiff’s attorneys presented a convincing case and managed to hold the jury’s attention.
Trial Transcripts
I have been reading the transcript of my trial testimony in a case tried in the midwest last year. It is always interesting and sometimes embarassing to note speech mannerisms, syntax errors of both the witness and the attorney as the examination and cross examination developes.
A couple of pointers for experts:
1. Speak up! Do not let your voice drop. Be aware that the acoustics and sound systems vary from courtroom to courtroom. Watch the placement of the microphone so you do not have to lean over to be heard.
2. Keep eye contact with the attorney while he is asking the questions. It helps you to focus on the call of the question.
3. If the question is poorly phrased and ambiguous, them tell the attorney that you don’t understand and to rephrase the question. The jury is not going to have a bad opinion of you if you don’t understand aconfusing question since they probably didn’t understand it either.
For attorneys:
1. Keep focused on the issues. My Golden Retriever, Cody, loves to chase rabbits and thinks it is a truly wonderful sport. Too often attorneys end up chasing rabbits all over the courtroom and sometimes fail to establish facts necessary to prove liability or other issues. While I don’t recommend a script, a tight outline keeps the examination focused on the issues.
2. Don’t overreach! An expert witness is usually an expert in a relatively narrow field. If you intend to ask about opinions collateral or outside his established areas of expertise, then lay an adequate foundation first. Do not wait for the opposition to object with a possible adverse ruling from the bench.
3. Don’t bore the jury. Every fact in the lawsuit does not have to be lawyered. If you have established your point, move on. Recently I observed the testimony of an economics expert. He was on the stand for a total of 3-1/2 hours; an hour of which was spent at the side bar quibbling about minor issues of evidence admissibility which had little or no probative value. At 4:15 in the afternoon, the jury was clearly tired and impatient.
FELA Cases
This coming week, I have a re-trial of a matter in which I testified last April in St. Louis, Missouri. This one involves an injured switchman working for one of the nation’s largest railroads. The injury in this case is a bit different than the typical trip/slip and fall case in that the diagnosis is hip and knee injury due to cumulative stress from walking on uneven ballast and debris in the rail yard. The plaintiff was granted a new trial because of the improper admission of collateral source retirement income. I will be testifying regarding yard safety, ballast size, effect of debris, exposed ties and some background on the epidemiology of cumulative stress syndrome resulting from unsafe walking surfaces.
These trips are difficult because travel time from airport to airport is about 8 hours; this does not include the 4-5 hour round trip from my office to the Ontario Airport. The good news is that a 4:00 AM the traffic is light and I can cut the travel time in about half.