Comparative and Contributory Negligence in Falling Merchandise Cases

Defendants in these cases often try to blame the customer. They argue the danger was "obvious" and the plaintiff was negligent for not watching for falling merchandise, for not being aware of the danger of high stacking, for not avoiding an aisle where merchandise was being stocked, or for reaching for merchandise on a high shelf and not asking for help.

In Stone v. Kmart Corp., the plaintiff was injured when an employee dropped merchandise onto the plaintiff's head. Kmart's only evidence of comparative negligence was that the plaintiff should not have been in the area when she saw an employee on a ladder stocking merchandise. The trial court refused Kmart's request for a comparative negligence instruction.

The court weighed the risk involved and the foreseeability and likelihood of injury against the social utility of the customers' conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden on the merchant.39 It ultimately held that the customer does not bear the burden to foresee the possibility that merchandise may fall. The court distinguished a falling merchandise case from a slip and fall case, where a rainfall, melting snow, ice, or water on a floor places a plaintiff on heightened safety awareness.

The court recognized that placing the burden on the customer to guard against falling merchandise is inappropriate. "[I]f one took it to its logical extreme, everyone would have to take a crash course . . . in taking care. You'd have to wear safety helmets indoors."40 The trial court refused to instruct the jury that the plaintiff simply should not have been in the aisle. Under the circumstances, it said, the merchant, rather than the customer, best bears the burden to guard against and prevent falling merchandise.

The Ninth Circuit also addressed this issue in Shafer. It ruled that evidence that merchandise had fallen and injured customers, suggesting that Wal Mart knew its stacking methods posed a risk of harm and failed to minimize that risk, negated Wal Mart's position that the only likely explanation for the incident was plaintiff's mishandling of the boxes or shelves.

At Sam Harding Law Firm, The Good Guy, we understand the problems suffered by people who have sustained injuries from falling merchandise. We know that insurance companies often try to take advantage of unrepresented clients. We work hard for our clients to get them the money they deserve without their having to go to court. We work to get medical bills, lost income and money for pain and suffering. However, should your case require litigation, we are prepared to take your case to court. We are an ABOTA and AV rated Martindale Hubbel law firm.

Sam Harding Law Firm, The Good Guy, your Las Vegas, Nevada falling merchandise attorney, wants you to be informed about falling merchandise cases in Nevada.