Bertha Gruver went shopping using a motorized cart provided by the Kroger Grocery Store. While shopping, Ms. Gruver partially dismounted from the cart and while one foot was on the cart and the other was on the ground she reached for a can on a shelf. At that time, according to Ms. Gruver, the cart rolled forward and caused her to fall.
Ms. Gruver filed suit against Kroger and John Duke, the store manager on duty at the time of the accident, alleging negligence in supervising and providing instructions for use of the cart. Ms. Gruver also sued the manufacturer of the cart under the Louisiana Product Liability Act (“LPLA”) (pdf) . The defendants filed a motion for summary judgment to dismiss all of Ms. Gruver’s claims, asserting that the accident and injuries were caused by Ms. Gruver’s own actions and that Ms. Gruver could not meet her burden of proof. The trial court granted defendants’ summary judgment motion and Ms. Gruver appealed.
The appellate court affirmed the judgment of the trial court in its entirety. In reaching its decision, the court noted that Kroger’s manager tested the cart’s brakes immediately after the accident and found no problems. The cart was then inspected by the store’s mechanic, who likewise found no problems with the cart. Although Ms. Gruver’s expert engineer theorized that the accident could have been caused by a safety switch on the seat, when he actually inspected and tested the cart the switch was working properly. Furthermore, plaintiff’s engineer testified that the cart was functioning as originally delivered and that the braking system, while an older system, was reliable. The Court found that the evidence presented by Ms. Gruver only suggested a potential for harm, not an actual harm, and therefore did not constitute an unreasonable risk of harm under Louisiana’s Merchant Liability Statute (pdf).
The appellate court also rejected Ms. Gruver’s claim that Kroger failed to provide operating instructions for the cart or train employees to provide such instructions. The appellate court noted that Ms. Gruver’s deposition testimony showed that she did not ask for instructions, read the instructions provided, or ask any Kroger employee for instructions to use the cart.
The Court then reviewed Ms. Gruver’s product liability claims, which are governed by the Louisiana Product Liability Act (LPLA). Ms. Gruver asserted two theories of liability under the LPLA; namely, unreasonably dangerous in design and failure to warn. With respect to the defective design claim, in order to satisfy her burden of proof Ms. Gruver would have to establish that there existed an alternative design available at the time of manufacture of the cart that would have prevented her fall and that the gravity of her potential injury outweighs the burden of adopting the alternative design. In support of her design defect claim, Ms. Gruver’s expert engineer opined that a ‘skirt guard’ on the grocery cart would have prevented the cart from rolling over people’s feet and that a dual electric/manual braking system would have stopped the cart immediately when the throttle is released. However, Ms. Gruver failed to present any evidence that the alternative design and braking system were available at the time the grocery cart was built. Nor was there any evidence that the risk of harm outweighed the cost of adopting the alternative design and braking system. As a final matter, the Court observed that Ms. Gruver’s engineer’s acknowledged that the cart’s brakes were “reliable” and that tests with a newer cart model did not show any “noticeable differences” in the resistance to rolling when the throttle is released.
The Court then turned to Ms. Gruver’s failure to warn claim. As a threshold matter, the Court noted that Ms. Gruver presented no evidence pertaining to the adequacy of the cart’s warning label. Additionally, Ms. Gruver admitted that she did not read the warnings and therefore she simply could not demonstrate that a different warning would have resulted in her decision not to use the cart. Given these facts, the court found that Ms. Gruver failed to satisfy her burden of proof as to her failure to warn claim.
Take-Away: If motorized carts are made available to business customers, appropriate operating instructions should be openly available to the customers. Also, when a customer is injured while using a motorized cart, immediately following the accident the cart should be tested by the manager on duty and then as soon as possible by a qualified mechanic or engineer to document the condition of the cart at the time of the accident.
This article was co-authored by Jeremy Bolton, an associate with Irwin Fritchie Urquhart & Moore LLC.
The case Billiot v. Big Wheels Travel Center demonstrates how a plaintiff needs to offer some evidence of a vice or defect in a property in order to survive a motion for summary judgment. Ms. Billiot alleged that she injured her right arm when she slipped and fell on an access ramp while walking into the Big Wheels Travel Center. In response to Ms. Billiot’s claims, Big Wheels filed a motion for summary judgment. In support of the summary judgment motion, Big Wheels submitted photographs depicting the ramp and affidavits of store employees confirming that there was nothing defective about the ramp at the time of the accident. Other than establishing that rain had fallen on the area where she slipped and fell and that the area was wet, Ms. Billiot offered no evidence of any vice or defect in the property. Given this lack of evidence, the trial court granted Big Wheel’s motion for summary judgment and in doing so noted that rain on a walkway in and of itself does not present an unreasonable harm.