The Incident Report, the Non-Slip Mat Email, and a Novel Slip Expert
While shopping at a Wilkes-Barre grocery store, Paula slips on a clear liquid near the frozen-food aisle and fractures her wrist. She sues the store. At trial, Paula offers three items. First, the store's 'Customer Incident Report,' completed by the assistant manager 90 minutes after the fall. It states: 'Floor was wet from a leaky freezer; we mopped it,' and bears a footer: 'Prepared for insurance/legal review.' Second, an email sent two days later by the regional manager: 'Order non-slip mats for every freezer aisle immediately-this is the third fall this year.' Third, testimony from an engineer who used a 'Slip Risk Index' to opine the floor was unreasonably slippery. The index has been peer-reviewed but is not generally accepted in the forensic engineering community. The store objects to all three.
1. Is the Customer Incident Report admissible over the store's hearsay objection?
Read the worked answer
The report contains hearsay, but several paths support admission. First, it may qualify as a business record under Pa.R.E. 803(6): it was completed 90 minutes after the fall by an assistant manager with knowledge, the store regularly prepares incident reports, and the report was made in the regular course of business. The footer 'prepared for insurance/legal review' does not automatically exclude it, but it is a factor the court may weigh on trustworthiness; the court can admit it with a limiting instruction. Second, the assistant manager's statements are admissions of a party opponent under Pa.R.E. 801(d)(2) because the manager was an agent speaking within the scope of employment. The statement 'floor was wet from a leaky freezer' is admissible if based on the manager's observation; if based on another employee's report, the court must analyze that layer, but the agent's own duty to report supports reliability. The 'we mopped it' statement is routine cleanup, not a subsequent remedial measure. The report is likely admissible.
2. Is the regional manager's email about non-slip mats admissible?
Read the worked answer
The instruction to order non-slip mats is a subsequent remedial measure under Pa.R.E. 407. It is inadmissible if offered to prove the store was negligent or that the floor was unsafe. The rule encourages safety improvements after accidents. But the email may be admissible for other purposes: to show feasibility if the store contends mats were not feasible, or to impeach a witness who says the aisle was safe. The statement 'this is the third fall this year' is different. It is an admission by a party opponent and may show notice of a recurring dangerous condition before Paula's fall, if the prior falls were similar and the store had notice. The court should redact the remedial instruction and admit only the notice portion, with a limiting instruction, if a proper foundation identifies the prior incidents.
3. Should the 'Slip Risk Index' expert be permitted to testify?
Read the worked answer
Pennsylvania applies the Frye general-acceptance standard, not Daubert. The proponent must show that the methodology is generally accepted in the relevant scientific community. Peer review is helpful but not sufficient; a novel 'Slip Risk Index' that is not generally accepted in forensic engineering does not pass Frye. The expert may not testify using that index. The expert may still testify about standard slip-resistance testing, such as accepted ASTM methods, and may opine based on those methods if the foundation is adequate. The court should hold a Frye hearing and limit the testimony accordingly.