Falling Merchandise - Lawyers Weekly USA 6-19-95



Falling Merchandise a Frequent
Problem at Wal-Mart

Head Injury Results in $3 Million Verdict


Premises Liability

COLORADO: Denver District Court
Scharrel, et.al. v. Wal-Mart Stores, Inc.
Case No.94 CV 2734
Judge Larry Naves
VERDICT: $3.3 million
Plaintiffs' attorneys: Jeffrey A. Hyman, Richard I. Brown, and Brenda M. Sauro, Haligman and Lottner, P.C., Denver.
Defendant's attorneys: John P. Mitzzer and and Robert McCormick, Hall & Evans, Denver

In the last 25 years, more than 17,000 claims of falling merchandise injuring customers or employees have been made spinet the Wal-Mart discount chain, Denver attorney Jeffrey A. Hyman discovered alter has client ajliered head injuries.

Armed with evidence of the store's poor safety policies, Hyman last month convinced a jury to award has client $3 million. During pre-trial discovery, Hyman also found that in the last three years, Wal-Mart has had almost $1 billion in injury claims.

Wal-Mart's policy of stacking floor merchandise high as possible led directly to an accident that caused his client a closed-head injury and related problems. the jury found.

"Our position was Wal-Mart simply disregards the customer" in its efforts to get as much merchandise as possible on the sales floor. Hymen says.

Defense attorney John P. Mitzner declined to comment.

The verdict is believed to be the highest ever for a personal injury claim in Colorado. It included $1,027,243 for economic damages, $1 million for physical impairment, $1 million for non-economic damages and $300,000 to the plaintiff's wife for emotional distress.

Hyman has several other falling-merchandise cases pending against Wal-Mart, and numerous similar cases have been filed by other lawyers around the country, he says. Other plaintiffs' attorneys trying these cases should emphise the point that Wal-Mart needs to address the problem, recommends Hyman.

"Eventually [WaI-Mart] is going to have to come to grips with having safety [procedures] and protecting consumers, and is going to have to make a change in policies," he says.

Take a hard-line approach and be prepared to go to trial against Wal-Mart, he advises.

"Wal-Mart has calculated the risk and they're simply going to go to trial and that's fine, because lawyers around the country are going to get really good results." he says.

The jury dad not award punitive damages, which surprised Hyman. "I don't know if they were confused or what, or if they felt they had given as much they could give in this case," he says. The jurors left the court immediately after the verdict, and Hyman has been unable to question them.

Almost Argued In
The facts of the Colorado case were simple. Phillip Scharrel and his wife Joyce went to Wal-Mart in Littleton, Colo., on Jan. 8, 1994 in search of an ice auger. The particular tool they selected was stored in boxes stacked on the top shelf, about 8 feet off the ground.

The salesman who climbed a ladder to retrieve one of the 40-pound augers lost his balance and fell, pulling two of the boxes from the shelf. Phillip Scharrel rushed forward to try to break the salesmen's fall; both boxes landed on his head. Several other items stacked on lower shelves also landed on Scharrel.

The plaintiff was temporarily dazed but not knocked unconscious. Hyman says. Shortly after the Scharrels left Wal-Mart, Phillip began to experience headaches, blurred vision and vomiting. Emergency room doctors diagnosed a concussion, a mild closed-head injury and neck and head damage; today, Scharrel remains under the close care of a treatment team and may need a spinal fusion.

Wal-Mart had decided it
was cheaper to defend injury
claims than to store
merchandise carefully,
the jury found.

The Scharrels filed a negligence claim, contending Wal-Mart breached its duty to provide customers with a hazard-free shopping area.

A Hazardous Situation
Hvman says his trial strategy had these themes. The first was that Wal-Mart officials knew they created a hazardous condition.

"We took the deposition of their risk manager," Hyman says. "What they do is they have a risk tolerance policy...Wal-Mart has determined by their analysis they can tolerate falling merchandise as a risk."

Hyman says Wal-Mart tried to "stonewall" during discovery, but he eventually received documents that showed that in the last 25 years, more than 17,000 claims of injuries due to falling merchandise have been made against the company. A quarter of those claims were for head injuries.

"Those injury claims have been rising almost dramatically for the last three years," Hyman says.

In his second theme, Hyman urged jurors to find that the chain not only discounts merchandise, it discounts safety in order to make room for as much merchandise as possible.

"Their merchandising policy nationally is to stock m
erchandise as high as you can possibly stock merchandise," he says. "It's just jammed in there."

WaI-Mart also had a written policy that required all heavy merchandise to be kept below shoulder level, Hyman says.

For the trial, Hyman had a replica of Wal-Mart shelving built and placed in the courtroom with boxes stacked on it as they were in the store. "lt was obvious that it created a dangerous situation," he says.

The jury also viewed 20 to 25 charts illustrating Scharrel's injuries and economic damages, and emphasizing the lack of conformity with safety policies at the Littleton store. For Instance, quarterly surveys filled out by employees said the store manager showed poor management with regard to safety and that workers felt they needed more safety training.

"The particular salesperson who went to retrieve the auger had absolutely no training in retrieval of merchandise," Hyman adds. "He was not aware of Wal-Mart's policy that heavy items be stored on the bottom. He had never read the safety manual. He was very poorly trained."

Hyman's final theme and the centerpiece of the case revolved on his paraphrase of the chain's famous slogan, "Watch for falling prices."

"I used 'Watch for falling merchandise,' in my opening, I and I used it strong in my close, and I used those 370 sheets containing the 17,000 falling-merchandise claims," he says. "I used that extensively on every Wal-Mart witness that testified."


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