Falling Merchandise

When a commercial establishment opens its doors to customers, the law imposes the highest duty of care for protection of patrons from unreasonable risk of injury. In premises liability law, those invited to a property for the financial benefit of the site owner are considered “business invitees.”

At Associates and Bruce L. Scheiner, Attorneys for the Injured, our premises liability attorneys know one of the more common hazards posed to shoppers, particularly in grocery and “big box” stores, is falling merchandise.

Commercial property owners are heavily invested in moving as much inventory as possible as quickly as possible. Part of that means effective use of space for displays. Because commercial leases can be expensive, many retailers have found it advantageous to build up rather than out. However, in stacking merchandise ever-higher overhead, they increase the risk of falling merchandise, which can result in severe injuries to unsuspecting customers.

Thousands of injuries – and even some deaths – have occurred in the last two decades as a result of falling merchandise at retail locations. Dislodged items include everything from housewares to hot water heaters. The Los Angeles Times reported that such injuries are increasingly common, particularly at larger retailers who routinely use “sky shelves,” or stacks of merchandise piled in pallets from floor to ceiling with no restraining devices.

The newspaper noted court records from Scharrel v. Wal Mart Stores, Inc. in which the retail giant conceded during a six-year period, falling merchandise was cited in 26,000 customer injury claims and 7,000 employee injuries. Meanwhile, a company official for Home Depot testified in one proceeding that falling merchandise is blamed for approximately 185 injuries weekly. Other large chains are expected to experience similar injury volumes.

The law holds merchants have a duty to keep their aisles, passages and other public areas in reasonably safe condition in order to prevent injury to customers. That means stores need to place products safely on shelves so items will not fall.

Courts in numerous jurisdictions have repeatedly held store operators should anticipate customers will handle and move merchandise, even that which is placed up high. Therefore, store owners must take active measures to prevent items from falling from shelves. That requires staffers to periodically check shelves to assure items are in a secure, safe position and that shelves are sturdy.

However, injuries resulting from falling merchandise continue to occur. Some of the most commonly cited reasons include:

• High stacking. In many stores, items are stacked at 15 feet above the sales floor, sometimes even higher.
• Unsecured items. Most merchants don’t use physical restraining safety devices to keep items stacked high on shelves secured. In the 1999 case of Stone v. Kmart Corp., store executives testified such safety devices “aren’t practical.” In the Scharrel case, Wal-Mart asserted such devices aren’t necessary.
• Inadequate training. Store personnel are sometimes not property trained – or sometimes not trained at all – in proper stacking methods, or in recognizing and correcting a falling merchandise hazard. In some situations, workers don’t realize the potential danger of lifting merchandise over a customer’s head.

At Associates and Bruce L. Scheiner, Attorneys for the Injured, our personal injury attorneys recognize each of these as a failure to take appropriate precaution in preventing a foreseeable and unreasonable danger to customers.

It’s worth noting that many large stores meticulously track these kinds of incidents, regardless of whether the incident results in injury or subsequent litigation. This kind of data can be key to proving the defendant knew the hazard existed, and failed to act upon it.

In falling merchandise lawsuits, one the overriding difficulties can be proving the defendant had “exclusive management control” over the item or merchandise that caused the injury. Stores have argued that with hundreds or even thousands of customers entering daily, there is no way the items can be considered under the sole control of the defendant.

Plaintiffs can sometimes counter this argument by asserting the doctrine of res ipsa loquitur (Latin for “the thing speaks for itself”). This legal theory holds that a defendant can be found liable even without direct evidence of negligence where the instrumentality that caused the injury was under the exclusive control of the defendant, and further injury wouldn’t normally occur absent some form of negligence.

Courts have been reticent to apply the doctrine in falling merchandise cases. An example in Florida was the 2012 decision of Hancock v. Wal-Mart Stores by the U.S. Court of Appeals for the Eleventh Circuit. In that case, a customer was injured when several bags of beach toys fell from a display shelf. The plaintiff argued the shelf was improperly stacked roughly a half hour before the accident. The trial court denied the plaintiff’s request to give the jury an instruction on res ipsa loquitur, and the appellate court affirmed, noting the doctrine is a last resort only available in the absence of other evidence. The plaintiff in Hancock, the court found, did offer direct evidence of her claim, and therefore an instruction on res ipsa loquitur was not applicable.

Still, some courts have interpreted “control” to mean the “right to control,” meaning the store still retains responsibility, even if the items were partially dislodged or positioned precariously by other customers.

If you or a loved one has been injured in Southwest Florida, contact Associates and Bruce L. Scheiner, Attorneys for the Injured, for a free and confidential consultation to discuss your rights. There are no fees or costs unless we win. Offices in Fort Myers, Cape Coral, Naples and Port Charlotte.