Store Potentially Liable Even Though Pallet was in "Plain View"
The fact that an object is in “plain view” will not automatically insulate a store owner from liability. This was demonstrated in a decision rendered in Butler v. Wal-Mart Stores, Inc. In Butler, the plaintiff tripped and fell over a pallet of merchandise while shopping at Wal-Mart. The pallet was located in the center of the aisle and was stocked approximately waist high with dog food. As she walked between the pallet and the aisle shelving, she forgot the pallet was behind her and “went back” injuring herself. By all accounts the pallet in question was in plain view.
Ms. Butler filed suit against Wal-Mart in state court under the Louisiana Revised Statute 9:2800.6 (pdf), which sets forth the standards for merchant liability. After the case was removed to the United States District Court for the Eastern District of Louisiana, Wal-Mart moved for summary judgment on the basis that it had no duty to protect Ms. Butler from the pallet’s open and obvious condition.
In seeking dismissal, Wal-Mart relied upon Taylor v. Wal-Mart Stores, Inc., an earlier federal court decision from the Western District of Louisiana decision which had found that a pallet stocked with merchandise was not an unreasonably dangerous condition. Notwithstanding the Taylor decision, Judge Sarah Vance denied summary judgment finding that there was no absolute rule “that merchants cannot be liable when a customer trips over a pallet in their stores.” Although the Judge acknowledged that merchants generally do not have a duty to protect against open and obvious hazards, she reasoned that a jury must still be given the opportunity to weigh a peril’s obviousness to the likelihood and magnitude of harm of a given risk. She also noted that that there was a question as to whether the pallet might have been placed unreasonably close to the shelf thereby forcing the customer to confront a dangerous condition to get access to merchandise on the shelves. On this basis, she denied Wal-Mart’s motion for summary judgment.
Take- Away: Butler makes it clear that there is no such thing as a “slam-dunk” when it comes to open and obvious conditions. Although this court did not find that Wal-Mart was liable for its placement of the pallet in the store aisle, it concluded that this was an issue that would need to be decided by the jury. Store owners may want to consider insuring that pallets do not block access to store merchandise and/or waiting until after hours before placing the pallets in the store aisles if feasible.
