Sam Harding Law Firm

Falling Merchandise Lawyers & Premises Liability in Las Vegas and all of Nevada. Call The Sam Harding Law Firm: 702-333-7777

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Law of Falling Merchandise

falling merchandise

Falling merchandise is a relatively new and rapidly evolving area of premises liability. The seminal case that exposed the magnitude of the problem is Scharrel v. Wal Mart Stores, Inc., in which it was discovered that between 1989 and 1994, 17,000 falling merchandise incidents resulting in injuries to customers occurred in Wal Mart stores.

The law recognizes that merchants have a duty to invitees to exercise reasonable care to keep their premises in a reasonably safe condition and to warn of unsafe or hazardous conditions of which the merchant knows or should know through reasonable care and inspection. It is well established that merchants owe a duty to their customers to keep their businesses, aisles, passages, and other public places in a reasonably safe condition and to use ordinary care to prevent injuries to customers.

A premises hazard is a condition posing an unreasonable risk of harm. Merchants must take reasonable precautions to protect their customers from foreseeable dangers. An employee's knowledge of an unsafe condition may be imputed to the merchant. Certain states have abolished the distinction between invitees and licensees, declaring that landowners owe the same duty of reasonable care to all people lawfully on their premises. Other states have codified common law premises liability.

Courts recognize that merchants must place merchandise on shelves safely so it will not fall. The merchant must take affirmative steps to prevent it from falling, including checking the shelves periodically to ensure that merchandise is in a safe position and using devices to stabilize it.

The law recognizes that stacking merchandise on high shelves creates an unwarranted risk, and it is reasonably foreseeable that doing this contributes to the risk of merchandise falling. Several courts have held that stacking boxed merchandise on a shelf above customers' heads creates an unreasonable danger.

In Lapeyrouse v. Wal Mart Stores, Inc., the court said that "stacking items three on top of each other and overlapping the shelf can obviously cause objects to fall." In Matthews v. Schwegmann Giant Supermarkets, Inc., the Louisiana Supreme Court held that cans falling from a shelf that had not been touched by the plaintiff or any other customers established that "the condition of the shelf presented an unreasonable risk of harm."

In Lorinovich v. Kmart Corp., the court said that a genuine issue of fact was presented regarding whether a reasonably prudent merchant would stack unsecured cans on shelves six feet off the floor, with no ladders or personnel available to assist the customers and with no warning of the likely danger involved in reaching for the cans. The court noted that the company knew that people had been injured in its store by cans falling from above eye level and that it was store policy not to place merchandise above eye level unless it was secured.

In Dougherty v. Great Atlantic & Pacific Tea Co., the court held that a jury could conclude that the stocking of jars on high shelving, not readily reachable or viewable by the customers, subjects customers to an unwarranted risk of harm. "The very reason for the need to exercise due care in stacking is that the initial or subsequent disarray may cause an item to fall," the court said.

Courts routinely reject a merchant's argument that movement of merchandise by a customer other than the plaintiff is an intervening cause absolving the merchant of liability, because the other customer's conduct was foreseeable. Courts recognize that merchants must anticipate that customers will handle and move merchandise.

Courts also have held that merchants must anticipate that customers will attempt to reach merchandise located on high shelves. In Safeway Stores v. Leake, the court held:

In a self service store, where goods are displayed beyond the reach of a person of ordinary height, and no means are provided for reaching such goods, the store owner is bound to anticipate that a customer may attempt to reach the goods by stepping on a lower shelf or projection and that such action may cause articles to fall from one of the shelves.

Applying this reasoning, the court in Pullia v. Builders Square deemed it foreseeable that displaying merchandise beyond the reach of the average customer and with a lower shelf or projection that "encourages self service customers to step up onto it to retrieve goods" subjects customers to an unreasonable risk of harm. The merchant should have expected that customers would try to reach the merchandise themselves. As a matter of public policy, self service merchants should display merchandise only where customers can reach it safely, provide more readily available assistance to customers, or warn of the danger.

Notice of a hazardous condition, always a critical issue in any premises liability case, is a difficult element of proof in these cases. Scharrel is significant on this issue. The court upheld the introduction of a Wal Mart report of 17,000 falling merchandise incidents under Colorado Rule of Evidence 404(b), for the limited purpose of establishing Wal Mart's notice of a problem. The court noted that a significant percentage of the incidents involved injuries similar to the plaintiff's injuries. Wal Mart's contention that the incidents were "not similar" to the plaintiff's injuries was rejected.

In Shafer v. Wal Mart Stores, Inc., the Ninth Circuit upheld the admission of the same report as evidence that the risk to customers posed by high stacking was foreseeable. This evidence also showed that Wal Mart failed to minimize that risk by stacking merchandise carefully.

In Cochran v. Lowe's Home Center, Inc., the court upheld the admission of other falling merchandise incidents as evidence of the defendant's notice of the dangerous condition. The injuries were not "generalized 'falls' which involve 'sheer speculation' and 'unrelated and indefinite circumstances,'" as argued by the defendant: They [we]re specifically caused by boxes falling from shelves which were stacked too high and were therefore unstable and likely to fall. Plaintiff . . . show[ed] by these other incidents a particular hazard created by an habitual practice of stacking merchandize [sic] in a manner which the proprietor knew to be dangerous and knew to have caused injuries to customers in a particular manner and for a particular reason that may render these incidents similar.

In Wal Mart Stores, Inc. v. Sholl, the court held that the evidence showed Wal Mart had constructive knowledge of the hazardous condition. The evidence showed Wal Mart stacked paint cans three or four high on a riser, was aware that heavy objects should be placed on lower shelves to maintain a lower center of gravity, knew that merchandise occasionally fell from shelves causing injuries to customers or employees, and knew customers would try to reach or move the cans on the riser to read their labels.

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


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Sam Harding


Sam Harding
Caring, Dedicated and Committed to Justice

Since 1975, Mr. Harding has practiced in the area of personal injury litigation in Nevada. He has represented clients in personal injury cases including but not limited to wrongful death cases, brain injury cases, product liability cases, automobile accident cases, aircraft crash cases, dog bite cases, slip and fall cases, nursing home abuse cases and defamation cases.


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About Sam Harding

Mr. Harding is a member of the Nevada Trial Lawyers Association and the American Bar Association. He has been lead trial counsel in over one hundred jury trials. Mr. Harding is a member of ABOTA (American Board of Trial Advocacy). Mr. Harding is an AV rated attorney in Martindale-Hubble.

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Sam Harding Law Firm

500 South 8th Street

Las Vegas, Nevada 89101

tel 702.333.7777 fax 702.384.5731