## Facts

- Margaret Scott visited a Sears store in Roanoke, Virginia, entered through a parcel-post entrance, retrieved a purchased rug, and exited through the same entrance.
- Outside the entrance, a sidewalk ran along a yellow-painted curb with several metal grates embedded in the concrete.
- Near a third expansion joint by a third grate, the concrete was deteriorated and spalling, and a portion of the curb at the joint had subsided about three inches below adjacent curb and walkway surfaces; the condition had existed for many years.
- In daylight and in good health, Scott walked diagonally across the sidewalk, avoiding the grates, and attempted to step off the sidewalk near the third expansion joint.
- Scott’s one-inch heel caught in the gap created by the displaced curb at the joint; she fell and broke her leg.
- Scott sued Sears in federal court under diversity jurisdiction for negligence/premises liability; a jury awarded her $125,000.
- Over Sears’s objections, the trial court admitted testimony from Scott’s human-factors expert, who opined that many pedestrians would not perceive the drop-off and that visual factors (yellow paint and spalling concrete) could obscure or distract from the defect, calling it “an accident waiting to happen.”
- Sears moved for a new trial based on the admission of the expert testimony; the motion was denied, and Sears appealed.

## Issues

1. Whether, applying Virginia law, the district court abused its discretion by admitting human-factors expert testimony about pedestrian perception where the subject was within ordinary juror experience.
2. Whether the admission of that testimony was sufficiently prejudicial to require reversal and a new trial.

## Decision

- The Fourth Circuit reversed and remanded for a new trial.
- The court held that the district court abused its discretion by admitting portions of the human-factors testimony because it addressed matters within common understanding and carried an undue risk of prejudice.
- The court declined to adopt a categorical rule excluding all human-factors testimony, but concluded that the testimony admitted here went beyond helpful explanation and likely influenced the verdict.

## Legal Principles

- Under Virginia premises-liability doctrine, a landowner is generally not liable for injuries caused by conditions that are open and obvious to an invitee; recovery requires proof that external conditions prevented the invitee from seeing the defect or otherwise excused the failure to see it.
- Virginia law places a substantial duty on pedestrians to use reasonable care and to notice ordinary walkway conditions, including irregular grades, uneven surfaces, and depressions.
- Expert testimony should be excluded when it does not assist the trier of fact because it concerns matters within the common knowledge of jurors; strongly framed expert opinions may be unduly prejudicial when they supply a scientific veneer to an everyday judgment.

## Conclusion

The court ordered a new trial because the key liability question—whether a curb drop was open and obvious or excusably unnoticed—was a common-sense determination for jurors, and the admitted human-factors opinions improperly risked substituting asserted scientific authority for ordinary evaluation of what a reasonable pedestrian should perceive.


Scott v. Sears, Roebuck & Co., 789 F.2d 1052 (4th Cir. 1986)