Friday, November 23, 2007
Shop Smart. Shop S-Mart. Ohio Court Finds Res Ipsa Loquitur Inapplicable in Black Friday Wal-Mart Case
One morning, shortly after 6:00 a.m. in November, 2000, Pamela Tackett was shopping at a Wal-Mart store for a bicycle. She eventually came upon a display of disassembled boxed bicycles in the outside garden area. Tackett claimed that the boxes were stacked four boxes high on their narrow eight inch side, totaling approximately twelve feet high. Wal-Mart has a general rule that its freestanding box displays should not be stacked higher than five feet high, in order to prevent the items on display from being unstable and unsafe to patrons. Tackett claims that while she was looking at a bicycle box on the floor, a box fell from the top of display, causing injuries to her head, shoulders, and arm.
Tackett thereafter sued the superstore under a few theories of recovery, including a cause of action under the doctrine of res ipsa loquitur, a Latin phrase that means "the thing speaks for itself." Plaintiffs typically use this rule of evidence when they are unable to prove specifically how an accident occurred but they are able to prove that the accident was the type of accident that would not occur in the absence of negligence.
This September, the District Court for the Southern District of Ohio heard Tackett's case and noted that for the doctrine of res ipsa loquitur to apply, a plaintiff must prove (1) that the instrumentality that caused the accident was under the exclusive management and control of the defendant, and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. See Tackett v. Wal-Mart Stores, East, Inc., 2007 WL 2668133 at *4 (S.D. Ohio 2007).
If the accident occurred on an ordinary day, perhaps the court would have accepted Tackett's argument. But the day of Tackett's accident was not any ordinary day. Instead, it was Black Friday, the day after Thanksgiving, which is typically either the busiest shopping day of the year or second only to the day after Christmas. The court thus rejected Tackett's argument, noting that Wal-Mart was not in complete control of the bicycle display when Tackett' accident occurred because it occurred "on the busiest shopping day of the year, at the busiest time of day. There were numerous customers in the area, several boxed bicycles had already been purchased, and several customers had physically touched, moved, and/or manipulated the boxes." Id.
The court thus found that the doctrine of res ipsa loquitur did not apply to Tackett's case, although it did find that there were triable issues of fact on Tackett's specific claim that Wal-Mart was negligent in stacking the boxes. The bottom line seems to be that if a retail store commits some specific act of negligence on Black Friday, early bird shoppers may be able to recover, but otherwise, it's every man for himself.