Virtually every day in Georgia, a shopper in a commercial retail space is injured by falling merchandise. Sometimes it is the careless customer who is to blame, but often, it is the fault of the retailer, its management or its employees. Distinguishing between these two scenarios can make all the difference in a successful civil action for personal injury.
The cause of action arises in O.C.G.A. 51-3-1, Duty of owner or occupier of land to invitee, which states in full:
“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”
With this in mind, the two primary doctrines of law at play in “falling merch” cases become; the Duty of Ordinary Care, and the retailer’s Method of Operation. Both tenets employ a “reasonableness” threshold, but they are very different standards.
The principle “of ordinary” care applies to both the customer and the retailer. This duty is best summarized in RHODES v. K-MART CORPORATION et al. (240 Ga. App. 57). The Court interpreted OCGA 51-3-1 as follows, “A person who maintains a place of business to sell goods or services owes a duty to a customer using ordinary care to keep the premises in a safe condition” and not to place the goods or merchandise in such a way as to injure a patron using ordinary care.
This guiding principle typically bars recovery for hazards which are deemed “Open and Obvious”, for instance, a giant box lying in the middle of an aisle in a well-lit grocery store. The law in Georgia presumes that any reasonable person (using ordinary care) would see the box and walk around it. However, something less obvious, like a puddle of clear liquid in that same aisle, that the retailer knew or should have known about, but failed to clean up, might create a compensable hazard if a person were to slip and fall there. The retailer could be deemed to have shown a lack of ordinary care in that instance, provided the plaintiff can show evidence that the retailer “knew or should have known” about the danger. In other words, was the Defendant on “Notice”?
However, even without proof of “notice”, a Plaintiff can establish negligence on the part of a retailer if they can show that the “Method of Operation” used by the Defendant for stacking, storing or displaying merchandise was inherently dangerous. This standard was applied by the court in Case titled Meek v. Wal-Mart, 72 Conn. App. 467 (2002). In the Meek case the injured shopper was hit in the neck and back by two large crates that tumbled from a high shelf.
The heavy and large boxes had been stacked dangerously high, on top of each other, employees on a high shelf where they were held in place by a short plastic fence, just one-tenth the height of the merchandise. The Court found that where the plaintiff alleges a specific, affirmative act of negligence by the defendant such as stacking the boxes itself (by employees) this was enough to show evidence that the store was on notice of the hazardous condition.
While “reasonably foreseeable” sounds much like “should have known” as applied to “notice”, observe that establishing “notice” as a plaintiff applies to hazards which existed prior to that customer’s encounter with it, while asserting the principle “reasonably foreseeable” contemplates hazards which suddenly occur or spring from the moment of contact causing injury. That is why establishing notice, for those victims, becomes unnecessary.
At The Millar Law Firm we deal with cases like this every day. We know the Georgia laws and we can help you. Contact us for a free consultation today.