Plaintiffs, Michael Graham (“Michael”) and Barbara Graham, sued Defendant Walmart Stores East LP (“Walmart”) after Michael allegedly slipped and fell on some ice in the parking lot of Walmart’s store on February 24, 2024.
Plaintiffs hired an expert, William L. Wallace, to “review and evaluate whether [Walmart] exercised the necessary high standard of reasonable care to protect Michael Graham from the hazard of ice in the parking lot.” He took photographs months after the incident where water had accumulated in depressions in the parking lot, including the area where Michael fell.
Wallace also obtained the weather data from February 24, 2024. Those records show that, on the date of Michael’s fall, there was one inch of snow with temperatures ranging from 21 to 34 degrees Fahrenheit. The temperature was above freezing until 3:00 a.m., but thereafter temperatures were consistently below freezing. Wallace thus opined that because “there was no plowing or de-icing treatment after 6:00 a.m. By 7:15 p.m. ice would have formed in the depressions” in the parking lot. He also stated that “a reasonable person would understand that a wet surface and/or standing water will freeze if the temperature is below 32 degrees.”
Walmart filed a motion to strike Wallace’s affidavit for a variety of reasons.
Safety Expert Witness
William L. Wallace is a Certified Safety Professional, Certified Healthcare Safety Professional and Certified Emergency Planner. Wallace holds a Masters Degree from Ball State University and has over 30 years of experience in safety and engineering. He is currently a Safety Board Director for Vantage Point Consulting.
Discussion by the Court
Largely based on Wallace’s Affidavit, Plaintiffs argued that it had constructive knowledge of the ice based on the weather conditions on February 24, 2024.
Reliability
Wallace obtained weather data and took photographs of the Maysville Store parking lot. Walmart called the opinions therein “speculation” because the weather data was acquired from the Fort Wayne Airport which is located about 20 miles from the Maysville Store. And Walmart pointed out that the photographs were taken months after the incident and under a different set of circumstances.
The Court did not believe that Wallace purely speculated on the weather conditions at the Maysville Store because the weather data was from a mere 20 miles away. Nor did the Court believe he speculates on the way water pooled in the parking lot simply because they were taken months after the incident when the weather was warmer. Basically, the connections that Wallace drew, though not perfect line for line, are rational.
It is rational to believe that there would be similar weather conditions just 20 miles away from where Michael’s fall occurred. And it is rational to believe that the temperatures in those areas would rise and fall in a similar fashion. It is thus reasonable to assume that the weather data from 20 miles away would reveal similar results to that of the Maysville Store on February 24. As for the pictures, Walmart did not argue that the parking lot has faced substantial changes from the date of Michael’s fall to the date on which they were taken. Although temperatures were not freezing and rain had just fallen, it is still reasonable to assume that water would have pooled in a similar manner.
Legal Conclusion
Admittedly, paragraphs 17-19 of Wallace’s Affidavit are riddled with premises liability legalese. The Court nonetheless believes that they are subject to admissible interpretations. As for paragraph 17, Walmart takes issue with this portion: “By 7:15pm, ice would have formed in the depressions, which created a hazardous condition to business invitees where Michael Graham fell.” But Wallace did not say that ice did form, only that it would have formed absent de-icing or plowing, and created a hazardous condition.
The same held true for paragraph 18 and Plaintiff’s use of “reasonable person” and “reasonable care.” While these terms could be interpreted as defining the standard of care, they could also reflect Wallace’s use of them in offering his opinion as a safety expert. Similarly, paragraph 19’s use of “responsible cause,” though close to causation, could likewise represent his expert opinion.
Held
The Court denied the Walmart’s motion to strike the affidavit of William L. Wallace.
Key Takeaway:
The Court determined that the statement, though it contained legalese, could be interpreted in two ways: one admissible and one not. If the Court construed it as a legal conclusion, it would be inadmissible. But if the statement is understood as [the Plaintiff’s expert] simply trying to use English, rather than legal terms, to express his opinion on [the Defendant’s] conduct, it ceases to be an opinion on the law.
Case Details:
| Case Caption: | Graham Et Al V. Wal-Mart Stores East, LP |
| Docket Number: | 1:24cv323 |
| Court Name: | United States District Court, Indiana Northern |
| Order Date: | July 25, 2025 |
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