August 5, 1999

Reasonable care for shorties

By ANDREW BERGH
Special to the Journal

Discount stores for short shoppers?

It's certainly not the dumbest idea in the world. Because as shown by Lorinovich v. K Mart Corporation, not everyone can reach those goods on the very top shelf. Which raises the following question: Is the storeowner at fault when, say, a can of falling salsa hits an unsuspecting customer on the noggin?

Our salsa saga starts on May 19, 1993, which is when a North Carolinian named Suzanne Lorinovich went shopping at her local Kmart store. (Court records spell it K Mart.)

Everything went smoothly until Suzanne reached aisle four. That's where the Mecklenburg County resident intended to pick up a can of K&W salsa.

But there was one slight problem: The sixteen-ounce cans were stacked on top of a six-foot-high shelf. And although she was five foot four, Suzanne couldn't quite firmly grasp the top can.

Since there were no ladders in the area, Suzanne had to choose between fetching help or helping herself. Picking the latter option, she tried to retrieve the top can. Her efforts went for naught, however, as Suzanne instead dislodged some of its neighbors. The next thing she knew, four or five cans were plummeting her way.

As Suzanne will surely agree, cans of falling salsa can be hazardous to your health. One of the tumbling containers somehow gashed her face and bruised it to the bone. Bleeding profusely, Suzanne eventually needed 19 stitches to close her wound.

Although her laceration later healed, the shopper still felt wronged by Kmart.

So she sued the discount store owner in Mecklenburg County Superior Court. The company negligently created an unsafe condition, Suzanne claimed, by stacking cans on a shelf over six feet high when it knew or should have known the cans might fall on a customer reaching for the merchandise.

If you're thinking Suzanne was a clumsy klutz who got what she deserved, let me share some additional facts.

First of all, the official policy at Kmart stores is to help shoppers retrieve merchandise from shelves and to "securely fasten" any merchandise displayed above eye level. Here, it was not disputed that the salsa cans were stacked above eye level and not securely fastened. (Although how do you fasten a can of salsa? Glue it to the shelf?)

It also was undisputed that the Kmart shelves were stacked higher than shelves at other stores in the area.

And there was evidence that falling goods had injured seven Kmart customers in the preceding 16 months.

For example, just five months before Suzanne's accident, another Kmart patron was hurt by falling cans when she tried to retrieve a can of green beans from a six-foot-high shelf. At the time of that mishap, a store employee completed an accident report which said the customer's injuries were caused by canned goods that were stacked too high for the customer.

In short, Suzanne could prove that Kmart had failed to follow its own policy; that the local custom was to not stack merchandise so high; that other Kmart shoppers had been injured in similar accidents; and that Kmart therefore knew that customers could be injured by falling cans that weren't properly secured.

But, as they say, the best defense is a good offense. So in January, 1997, the company moved to dismiss Suzanne's suit. And after a sympathetic (and probably tall) judge sided with Kmart, Suzanne found herself on the wrong side of an appeal.

Then she waited for the appeal to run its course, as our courts will never be accused of moving at mach speed.

But last month, more than six years after her accident, Suzanne finally got good news from a North Carolina appeals court.

The court initially observed that Kmart owed a duty of reasonable care to its customers. Whether this duty was met, said the court, is judged against the conduct of a reasonably prudent person under the same or similar circumstances.

And on that point, the court felt reasonable minds could differ.

After all, said the court, Kmart clearly knew it was store policy to not stack unsecured items higher than eye level. It knew other customers had been injured when cans were stacked too high. It knew no ladders or employees were available to help salsa-buying customers. And it knew no signs were posted to warn shoppers about the risk of falling merchandise.

In sum, the court ruled that Suzanne's claims were wrongly dismissed and that she instead deserved her day in court.

As to whether Suzanne ultimately prevails, your guess probably is as good as mine.

But if I were her, I don't think I'd want any basketball players sitting on my jury.

Previous columns:

• Just say Boo to drugs, 07-22-1999
• Warning: The soup contains MSG, 07-09-1999
• Grave concerns for the dead, 06-17-1999
• Another roadside distraction, 06-04-1999
• The perils of penitence, 05-21-1999
• Playing dice with your rights, 05-06-1999
• Escaping common sense, 04-15-1999
• The naked truth of Oregon's beaches and wildlife areas, 04-01-1999