Falling Merchandise - The Gazette - June 7, 1999

Retailers should watch out for falling lawsuits

Look out for that... lawsuit..

The practice of stacking products high on shelves in warehouse-style stores was found unsafe in a recent Denver court decision.

An Arapahoe County District Court jury found that Kmart Corp. was liable in a falling-merchandise claim brought by Teresa Stone of Aurora. The jury awarded her $110,000.

Stone was injured 4½ years ago while shopping in the toy section of an Aurora Kmart. A box weighing about seven pounds fell from a high shelf, hitting Stone on the head. The injury required surgery for a headache condition; Stone says she still suffers from chronic headaches.

Jeffrey Hyman, Stone's attorney and special counsel with Lohf Shaiman Jacobs Hyman & Feiger PC of Denver, hopes the decision will force mass merchandisers to provide a safer shopping environment, but in six years of specializing in such cases nationwide, he's seen no changes, he said "There are no restraining devices, safety straps, bars or shrink wrap," Hyman said.

Those simple additions could curb the number of failing-merchandise incidents, which now exceed 10,000 a year nationwide, he said. In the highly profitable warehouse shopping industry, merchandise goes from a distribution center directly onto the store's shelves - rather than a large stockroom in the back of the store.

Hyman also represented a plaintiff in the biggest falling-merchandise case ever, in which $3.3 million was awarded to a Denver-area man who suffered permanent brain damage when he was hit by two 40-pound power ice drills at a Wal-Mart.

Accidents are bound to happen when merchandise is stacked high without safety restraints, Hyman said.

"It will fall. Merchandise shifts. You could have a stocker on the other side of the aisle pushing ever so lightly. You could bump another item and have a domino effect," he said.

The most recent lawsuit challenged Kmart's assertion that consumers must be aware of the physical condition of a shopping environment, including the potential for products to fall from highly stacked displays or storage areas

"The law requires that in Colorado and elsewhere the owner of a store must keep a reasonably safe shopping environment," Hymen said.

"In the Krnart case, the judge went on with a fairly long analysis that with this warehouse/mass merchandising concept, it's not up to the consumer to watch for falling merchandise," he said.

'If that were the case, then the Wal-Marts and Kmarts and Home Depots would need to outfit their customers with hard hats."

Kmart officials could not be reached for comment.

-Jane Turnis



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