More Than Falling Prices

Pamela Manson
Texas Lawyer
Dec. 28, 2001

As stores get bigger, so does the number of suits filed by shoppers who claim they got more than they bargained for from their shopping trips. Texas is no exception. The Lone Star State is part of a nationwide trend accusing “super-warehouse stores” that sell building supplies, toys or general goods of causing injury or death from falling merchandise. The plaintiffs — including a French astronaut — generally accuse the retailers of negligence in stacking and moving goods.

The stores, though, strongly deny the allegations and say safety is a priority on their premises. Many of the injuries listed as occurring at stores are minor incidents such as a box tumbling from a shopping cart, according to Bill Wertz, a spokesman for Wal-Mart Stores Inc., which has been named in a number of suits.

In Houston, solo Scott Callahan has carved a niche for himself by taking on the megastores in claims revolving around falling merchandise. He started in 1999 with a case involving a Houston-area man who alleged he was injured when paint cans stacked on a shelf at a Home Depot were knocked down from a high shelf onto his back and neck.

After the case settled out of court three weeks before trial last spring, his new practice was born.

“Ever since then, I’ve gotten quite a few cases, a lot of them against Home Depot,” Callahan says. “It’s been a domino effect.”

He says many of his calls are from other lawyers who brought him into cases as co-counsel or who have referred potential clients to him. A few clients contacted him after hearing about him through newspapers or the television news, which have done stories on the alleged dangers at superstores.

One of his pending cases involves a woman who alleges a stack of V-shaped aluminum sheet metal pieces slid off a rack at a Houston Home Depot and hit her knee, leg and foot. Callahan says the woman has undergone surgery on her foot and is having her kneecap replaced. No suit has been filed yet following the May 2001 accident, he says.

Callahan says he waits to file suit until his clients have received medical care from reputable doctors so that he can determine the extent of their injuries.

Because he works on contingency in these cases, Callahan evaluates them carefully for damages and liability before accepting them.

“You’ve usually got very good liability,” he says. “The customer is not doing anything wrong.”

Damages generally are substantial because injuries caused by merchandise tumbling off a high shelf can be serious, Callahan says. In addition, those injuries, such as torn ligaments and damaged disks, are easy to prove, unlike soft-tissue injuries.

Astronaut Jean-Loup Chrétien says the injury he received at a superstore in September 2000 means he might never return to space. Chrétien, a brigadier general in the French Air Force, is a mission specialist with NASA and a veteran of three space flights, including one with the crew of an Atlantis mission that docked with the Russian Space Station MIR. His lawyer describes him as the John Glenn of France.

In a suit filed in March 2001 in U.S. District Court for the Southern District of Texas in Galveston, Chrétien alleges he was injured at a Home Depot in Webster, when he was hit on the head, back and shoulder by a 68-pound drill-press that fell from a shelf about 16 feet above him.

Callahan says many cases involving injuries at superstores are settled right away. The case that started it all for him, McGrath v. Home Depot U.S.A. Inc., settled under a confidentiality agreement in Harris County for an undisclosed amount in May 2001.

Michael McGrath alleged he suffered back, neck, knee and ankle injuries at a Houston-area Home Depot in August 1999 when a store employee, who was operating a forklift, knocked five 50-pound paint buckets onto him while he was crouching in the aisle looking at merchandise on a low shelf. In its original answer to McGrath’s suit, Home Depot denies all the allegations.

McGrath has had surgery on his knee and ankle and has been recommended for neck surgery, Callahan says.

Still pending is the suit of another Callahan client, Cynthia Kenney of Mesquite, who alleges she was hurt in March 2000 when a store employee driving a forklift hit an eight-foot plywood display holding heavy merchandise, including ceramic busts and bathroom fixtures, causing the items to fall on top of her. In a suit filed on Aug. 27 in Dallas County District Court, Kenney says she received injuries to her head, neck, back, shoulder, arm, wrist and hands.

Arthur K. Smith III of Smith DeFeo in Dallas, who represents Home Depot in Texas, refers questions about the Kenney suit and other litigation to the company’s Atlanta headquarters. Spokeswoman Mandy Holton says the retailer can’t comment on pending litigation, but adds, “Home Depot is committed to providing a safe and comfortable shopping environment, and no accident is acceptable.”

In her suit, Kenney v. Home Depot U.S.A. Inc., Kenney alleges the store violated numerous safety standards at the time of the incident, including failure to use banner barricades and spotters while operating the forklift. The suit says that Kenney, who is represented by Callahan and Dallas solo Neal P. Flagg, suffered severe injuries, mental anguish and loss of earnings.

Home Depot denies the allegations in its answer to the suit.

Kenney also alleges that what happened to her is part of an ongoing pattern.

“The incident involves egregious liability facts,” Callahan alleges in the Kenney petition. “It amounts to a blatant, ongoing indifference for customer safety. However, this is not an isolated occurrence. The sheer number of nationwide claims and lawsuits against Home Depot for falling merchandise highlights the need for drastic changes in Home Depot stores. Accordingly, plaintiff pleads gross negligence and intends to introduce extensive evidence at trial of Home Depot’s ongoing trend of injuries and deaths to its shoppers from fallen merchandise.”

PROVING A PATTERN?

Chrétien also cites an alleged pattern of injuries and deaths in his suit, Chrétien v. Home Depot U.S.A. Inc. and Home Depot International Inc., d/b/a Home Depot.

“Literally dozens of other lawsuits involving similar injuries have been filed against Home Depot in the past,” Chrétien’s lawyers, solo David A. Slaughter of Houston and Chris Parks of Parker & Parks in Port Arthur, allege in the suit.

They contend that the following alleged incidents at Home Depot stores show a pattern:

  • In May 2000, a 3-year-old girl in Twin Falls, Idaho, was killed when a load of countertops fell from a forklift.
  • A man in Danbury, Conn., was killed and his brother injured in July 2000 when a pallet of wood fell and pinned them;
  • A 79-year-old woman was killed in Los Angeles when a pile of falling lumber crushed her after a forklift operator knocked it over;
  • Eight customers were badly injured in 1992 when a forklift backed into two shelf posts, causing several layers of ceramic tile shelving to fall to the floor. (No location was given for this incident.)

Chrétien’s suit says that the astronaut suffered $15 million in damages.

Slaughter says that the astronaut is out of the flying rotation because his injuries make it impossible for him to eject at high speeds. The prognosis of Chrétien making it back to fly-ready status is not good, he adds.

The problem with falling merchandise has been well-known in the industry for years, even in the late 1970s when the megastores began opening, Slaughter alleges. The Chrétien suit accuses Home Depot, the world’s largest home improvement retailer, of malice for failing to prevent the astronaut’s injuries.

“Defendant Home Depot knew prior to the time of Plaintiff’s injury that high overhead storage of merchandise and the presence of forklifts in a retail store posed a high probability of injury and harm to patrons and others,” the suit alleges. “In fact, further injuries and deaths are a certainty.”

There are no specific numbers on lawsuits, but Callahan says that there’s been testimony that Home Depot receives 185 complaints a week nationwide that likely concern injuries. In an August 2000 article, the Los Angeles Times cited the same figure as the number of weekly injury complaints that the retailer had received in 1998.

And complaints aren’t limited to Home Depot. Other superstores such as Wal-Mart get their share of injury suits. Many of these suits attribute injuries to the practice of stacking goods high.

Wertz, the spokesman for Bentonville, Ark.-based Wal-Mart, says the number of injuries reported can be misleading.

“There are a lot of different kinds of incidents in our stores that are classified as falling merchandise,” he says. “When you use that term, you tend to imagine a certain set of circumstances. There are a lot of different circumstances that end up being falling merchandise, including a box falling out of shopping cart and hitting someone’s foot.

“It could be someone tripping or having an associate assist them trying to get something down and having the merchandise fall out of their hands. All of these are labeled as falling merchandise. It’s hard to know where to draw the line.”

Wal-Mart has addressed the problem in a number of ways, including putting lips on the edges of shelves and working with venders to ensure that merchandise is packaged in a way to reduce the chances of falling over, Wertz says.

“Our stores generally don’t stack merchandise very high,” he says.

SAM’S Clubs, a members-only warehouse club and a division of Wal-Mart, are among the safest stores of their kind and long ago adopted safety procedures that other retailers have started more recently, Wertz says. Among the procedures employed by the superstore is blocking aisles on both sides of a shelf when merchandise is being moved by forklift.

But Jeffrey Hyman, a Denver attorney, says that falling-merchandise accidents still occur despite safety measures taken by retailers. The number of injuries has climbed with the increase in the number of these superstores, says Hyman, who handles falling merchandise cases throughout the country.

He also warns that the most dangerous time of year is Oct. 15 to Jan. 15, the Christmas shopping — and returning — season, when merchandise is stacked to the ceiling. The most dangerous departments are housewares and toys, says Hyman, of Lohf Shaiman Jacobs & Hyman in Denver.

“Toy trucks will fall, and they weigh 20 pounds,” he says.

The claims in these cases fall under premises liability, but falling merchandise cases are unique to the retail warehouse industry, Hyman says. He estimates that he gets 400 to 500 calls a year from other lawyers or litigants about potential cases, but takes on only about a dozen of them because of the workload.

“We can’t handle more,” he says. “After a review, we have to take the cases that are provable and have a threshold of damages.”

The superstores tend to fight these cases aggressively, Hyman says. He goes to trial in about 85 percent of his cases.

“You really have to do your investigation pretty thoroughly and be prepared for lengthy litigation and aggressive battles as you prepare for litigation,” he says. “They’re very tough in discovery.”