Falling Merchandise - Bloomberg Business News 6-23-96

Retailers feel crunched
Lawsuits over falling merchandise are piling up

Bloomberg Business News
BENTONVILLE, Ark. - Prices aren't the only thing tumbling at Wal-Mart Stores Inc.

The retailer that warns shoppers to "Watch Out for Falling Prices!" is being hit with a slew of lawsuits over merchandise toppling off shelves and clobbering customers. Among the items injuring shoppers: ironing boards, barbecue grills, even tissue boxes, personal injury attortneys say.

"This shouldn't happen...period," said Jeffrey Hyman, a Denver lawyer.

Some juries agree. Mr. Hyman won a $3.3 million award against Wal-Mart last year after a client was clunked on the head by two power ice drills. Mr. Hyman struck again in March, winning $435,000 for a Wal-Mart shopper injured when a 30-pound box slammed onto her back. He's now suing Wal-Mart on behalf of a 33-year-old woman who says she was knocked cold in a North Carolina store when a toy truck crashed down on her.

Wal-Mart, which is appeallng both of Mr. Hymans victories, has launched training programs on shelf-stacking and taken other safety measures to curb injuries.

"We're doing all that we can to address it," said Wal-Mart spokesman Jay Allen.

Dozens of other suits are pending against the company. Over the last five years, more than 17,000 shoppers and employees reported injuries from falling goods at Wal-Mart, according to Wal-Mart records obtained by plaintiffs in a recent case. Wal-Mart says that figure is misleading because the records cover a broad category of accidents, including products that drop out of shopping carts.

Wal-Mart isn't the only retailer being dragged into court. Best Buy Co., Waban Inc.'s Homebase home improvement stores and Kmart Corp. also have been sued over falling merchandise. Home Depot lnc. now faces a suit because a woman in its Boise, Idaho, store was allegedly struck by a 150-pound hot water heater that fell 18 feet. The company declined to comment.

"lt's certainly a problem for the whole retail industry," said Mary Lorencz, a Kmart spokeswoman, considering the penchant for building cavernous stores where goods are stacked high.

The cases can be tragic. Marshalls Inc. last year was ordered by a jury to pay a Nebraska family $l.4 million after a 70-pound toy bin fell and killed a 4-year-old boy. And at Sam's Club in Abilene, a wardrobe toppled and killed a child in February, according to Wal-Mart, which owns Sams Club.

Retailers say such incidents are rare. Goods that slip off shelves usually drop harmlessly, they say. Wal-Mart says it follows the same federal safety rules as other retailers that stack products to within l8 inches of the coiling sprinklers.

Even so, that doesn't stop suits from being brought Wal-Mart says it was recently sued by a man struck by a bundle of bathroom tissue.

"If you really believed these plaintiffs' lawyers, you'd be afraid to get out of bed in the orning," said Malcolm Wheeler, a corporate defense lawyer at Denver's Parcel, Mauro, Hultin & Spaanstra.

Others say the surge in litigation doesn't necessarily reflect a rash of injuries caused by merchandise crashing to the ground. Instead, it has more to do with plaintiffs lawyers, who quickly compare notes, write articles about their legal strategies and share effective expert witnesses.

Mr. Hyman of Denver has become something of an expert on how to beat Wal-Mart. He hired a dozen expert witnesses - including a neurologist, psychologist, a psychiatrist and a neuro psychologist - to testify at last year's trial leading up to the $3.3 million power ice drill jury verdict against Wal-Mart.

Mr. Hyman told the jury that his client, Phillip Scharrel, suffered brain damage when the augur fell on him, and he had to give up his heating and airconditioning business.

What caused the accident? Mr. Hyman says a Wal-Mart worker fell off the top step of a six-foot ladder while attempting to retrieve the equipment off a 10-foot-high shelf. He alleged the Littleton, Colo., store was negligent and violated the company's policy of stacking heavy objects on the bottom shelf.

Wal-Mart said the ladder broke, making the accident "an unforeseeable event."

"Where there are humans, there will be accidents" said Mr. Allen, the Wal-Mart spokesman.



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