Bruce Bunting slipped and fell hard as he exited a CVS store in Washington D.C. on Christmas Eve morning, suffering a significant ankle injury on a walkway covered in a mix of salt and water. Bunting and his wife sued District of Columbia CVS Pharmacy, LLC, in D.C. Superior Court for negligence, negligence per se, and loss of consortium, arguing CVS failed to maintain a safe walkway and failed to warn customers of the hazardous conditions. The case hinged on expert testimony about the walkway's coefficient of friction (COF), a technical measure where both parties agreed values below 0.50 indicate a dangerously slippery surface.
The D.C. Circuit ruled the district court erred in granting summary judgment because competing expert testimony created a triable issue over whether the walkway met safety standards. As Judge Rao explained, the Buntings' expert Gregory Harrison testified that 'Bunting's type of fall injury incident simply could not have happened unless the walkway surface was very slippery and far below' a COF of 0.50, emphasizing the case 'was just not a close call.' Crucially, CVS's own expert produced field notes showing the walkway had a COF of 0.49 when wet—below the agreed 0.50 standard.
Judge Rao delivered pointed criticism of the district court's reasoning, writing that 'the inability of any party to positively identify the salt-like substance that was present does not preclude a jury trial' and that 'a reasonable jury could conclude from the evidence that the salt (or salt-like substance) did not meaningfully mitigate the dangerously slippery surface.' The court emphasized that at the summary judgment stage, all inferences must be drawn in favor of the nonmoving party.
The case reached the D.C. Circuit after U.S. District Judge [name not provided in opinion] granted CVS's summary judgment motion, reasoning that the Buntings failed to create a genuine issue because their expert only tested the walkway with water rather than the salt-water mixture present during the incident. The district court had also granted summary judgment on the negligence per se claim, finding that D.C. municipal regulations merely repeated common law duties rather than establishing distinct standards. CVS had removed the case from D.C. Superior Court to federal court.
The appeals court rejected CVS's argument that the expert testimony was insufficient because it didn't replicate the exact salt-and-water conditions. Judge Rao wrote that the court 'must draw all inferences in the Buntings' favor at this stage, and a reasonable jury could conclude from the evidence that the salt (or salt-like substance) did not meaningfully mitigate the dangerously slippery surface.' The court noted that both experts had demonstrated the walkway 'may have had a COF below 0.50 when wet,' creating the factual dispute necessary to survive summary judgment.
Circuit Judge Henderson filed a concurrence expressing skepticism about the Buntings' expert methodology while agreeing with the outcome. Henderson wrote that 'it is only by the slimmest of margins that the deposition testimony of the Buntings' expert, Gregory Harrison, created a genuine dispute' about the walkway's safety. She noted Harrison had tested the surface using only 'a water bottle and a shoe' rather than scientific equipment, describing his approach as 'bordered on ipse dixit' since he relied on 'subjective feel' rather than precise measurements.
The court affirmed summary judgment on the negligence per se claim, finding that D.C. Municipal Regulation section 2000.5 'merely repeat[s] the common law duty of reasonable care' rather than establishing specific behavioral guidelines. Judge Rao explained that since the regulation requires parties to 'protect and guard' public spaces from hazards, and the common law similarly requires reasonable care to protect against known dangers, 'the regulation does not impose a duty that differs from the common law duty of reasonable care.'
The case returns to district court where the judge must address CVS's alternative arguments, including whether Harrison's expert testimony is admissible under Federal Rule of Evidence 702 and whether CVS had actual or constructive notice of the hazardous condition. Judge Rao noted that on remand, 'the district court must fulfill its gatekeeping role under Federal Rule of Evidence 702 and assess whether the Buntings have proffered admissible expert testimony,' leaving open the possibility that CVS could still prevail on evidentiary grounds.