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Use of a liability expert witness was an issue in a case we recently defended successfully before a jury in Delaware. Shotwell v. Council of the Devon, C.A. No. 98C-11-117-FSS. The City of Wilmington Code makes landowners responsible for the condition of sidewalks that run along public streets, but it does not specify the limit of allowable height difference between adjacent sidewalk sections. In Shotwell, plaintiff's counsel sought to use an expert witness to present the opinion that our client's half-inch height difference on its sidewalk was improper.

We filed a motion in limine to preclude the use of a liability expert witness on the basis of the decision in Freiman v. Evans, Del. Super., C.A. No. 94C-02-231-JOH, slip op., 1997 WL 719318 (Aug. 19, 1997) (Herlihy, J.). In that case, the Court addressed a motion in limine to preclude expert testimony about alleged sidewalk disrepair, including slab displacement. Plaintiffs in both Freiman and our case had photographs depicting the sidewalk condition at the location of the accident.

In Freiman, the Court noted that section 42-42 of the City of Wilmington Code "specifies the duties and liabilities of property owners in the City of Wilmington. The responsibilities, hence duties owed to others, are straight-forward." Id., slip op. at 2. The Court also observed that the jury could hear evidence describing the condition of the sidewalk. Although the standard of care is not set forth expressly in the city ordinance, "the standard is not so specialized as to require expert testimony." Id. The Court in Freiman concluded: "Under the circumstances of this case, it would be an invasion of the province of the jury to allow expert testimony about the sidewalk's condition and the duty of care that may have flowed from that condition." Id. (citing Itek Corp. v. Chicago Aerial Indus., Inc., Del. Supr., 274 A.2d 141, 143 (1971)). In Itek, the Delaware Supreme Court held that "[t]estimony from an expert is inadmissible if it expresses the expert's opinion concerning applicable domestic law." Itek, 274 A.2d at 143.

In Shotwell, the Court declined to follow Freiman, and it permitted plaintiff to introduce expert testimony of industry standards for sidewalk construction upon which plaintiff's expert based his opinion. Despite that ruling, innocuous photographs of the accident scene apparently swayed the jury more than plaintiff's expert testimony, and the jury returned a defense verdict.

Notwithstanding the evidentiary ruling in the Shotwell case, Freiman continues to be a viable weapon to attempt to bar damaging expert opinion testimony in premises liability cases.