Bunting fell on Christmas Eve while exiting a D.C. CVS store. The surface was covered in a mix of salt and water. Photographs showed the walkway was wet but not icy. Bunting suffered a significant ankle injury.
The Buntings sued in D.C. Superior Court, alleging negligence, negligence per se, and loss of consortium. CVS removed the case to federal district court. The plaintiffs argued CVS failed to maintain the walkway safely and failed to warn of the hazard. They also claimed CVS violated D.C. municipal safety regulations.
The district court had granted summary judgment to CVS. It ruled that the Buntings’ expert, Gregory Harrison, failed to create a genuine issue of material fact because he tested the walkway with water alone, not the salt-and-water mix present at the time of the fall. The court also granted summary judgment on the negligence per se claim, finding the municipal regulation did not impose a duty distinct from common law.
The D.C. Circuit held that the district court erred on the negligence claim. The court agreed that expert testimony was required to establish the standard of care, as the coefficient of friction is beyond an average juror’s ken. The parties agreed a coefficient of friction (COF) at or above 0.50 was the applicable standard.
However, the appellate court found sufficient evidence to survive summary judgment. Harrison testified the COF was below 0.50. CVS’s own expert, Alexandra Maddox, produced field notes showing a COF of 0.49 near where Bunting fell. The court held a reasonable jury could conclude the salt did not meaningfully mitigate the slippery surface.
The D.C. Circuit affirmed the summary judgment on the negligence per se claim. The court noted that D.C. Municipal Regulation section 2000.5 prohibits leaving slippery substances on public space without protection. However, the regulation did not create a duty distinct from the common law duty of care.
The case is remanded for further proceedings. The district court must address CVS’s alternative arguments, including lack of notice and the admissibility of expert testimony under Federal Rule of Evidence 702.