Falling Merchandise - Charlotte Observer, 6-7-99

July 7, 1999

N.C. appeals court revives Kmart falling-salsa case

Staff Writer

An N. C. appellate court on Tuesday revived the lawsuite of a Charlotte couple who sued Kmart Corp. for injuries the wife suffered when cans of salsa fell on her face at the Sardis Road North store.

Suzanne Lorinovich suffered a deep facial wound in May 1993 when she tried to reach 16-ounce cans of K&W salsa stacked on a shelf six feet above the floor. Four or five cans toppled on her, and the wound took 19 stitches to close, according to court documents.

She and her husband, David, joined other injured shoppers nationwide who have sued Kmart and other superstores, alleging negligence over falling merchandise.

Mecklenburg Superior Court Judge Robert Johnston threw the case out of court last year after Kmart's lawyers argued that the 5-foot-4-inch real esate agent should have known she could get hurt when she tried to retrieve the salsa from such a high perch.

But the N.C. Court of Appeals reversed Johnston's ruling and sent the case back for trial. The judges said N.C. law requires store owners to exercise "reasonable care" for the safety of customers.

They noted that the Lorinoviches had presented evidence showing that the store had seven falling-merchandise cases from 1992 through April 1993.

They also said the store's policy called for employees to securely fasten any merchandise displayed above eye level and help anyone trying to reach it. The salsa cans were stacked above eye level, but weren't fastened down. Lorinovich looked around for someone to help her, but didn't see anyone, according to the judges' opinion.

The judges said even if a person could see the danger in approaching the salsa display, the evidence could still suggest that Kmart "should have anticipated that its customers could be injured."

Kmart officials said Tuesday they couldn't immediately produce statistics on reported injuries in their stores.

Still, the LorinovIch case rejoins a long string of falling rnerchandise lawsuits Involving retail super-stores. From Wal-Mart to Kmart to Home Depot and Best Buy, virtually all of the big name superstores have been hit by the lawsuits.

Last year, for Instance, a Mecklenburg jury awarded $2.2 million to a former Charlotte truck driver and his wife for injuries sustained when 1,000 pounds of Sam's Club merchandise fell on him nearly eight years ago.

One of his lawyers in the case was Jeffrey Hyman, a Colorado-based lawyer who in 1997 also helped win a confidential settlement for a woman conked on the head by a toy truck at the Wal-Mart store off Arrowood Road.

Hyman has had such success suing Wal-Mart - parent company of Sam's Club that he has been called the Marvin Mitchelson of falling-merchandise lawsuits. Mitchelson is a famous California divorce lawyer.

Hyman has said warehouse-style superstores neglect safety to pursue the profits that come from buying and selling in huge quantities. The superstores deny that charge.

Mary Lorencz, spokesman for the Michigan-based Kmart Corp., said the retail giant keeps strict safety standards for its 2,100 stores.

"Obviously we do some massive displays to attract customers' attention," she said. "We do them safely and attractively … the safety of our customers and employees is at the front of our minds."


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