Careless Shopping Cart Loading Alleged in Death Case

Florida premises liability law appears to be generous enough toward plaintiffs that Home Depot (NYSE: HD) could be held liable for the death of a customer who was allegedly struck by an overloaded shopping cart being pushed by another customer.

The widow of Richard Zanard, 80, sued Home Depot last month, alleging he died in November 2006 as a result of the negligence of an employee at a store in St. Augustine, Fla., who assisted Billy Sanders in loading a cart with a vertical stack of “several large garbage cans.”

Even though the height of the cans “clearly obscured” Sanders' vision, the complaint says, the employee “allowed Mr. Sanders to proceed out of the store and into the parking lot having created this danger ...” Unable to see “objects or people in his direct path,” Sanders then “ran directly into Mr. Zanard with the Home Depot cart he was pushing.”

Zanard, an attorney, suffered a fractured hip from the impact and died nearly three weeks later of complications from surgery to repair it.

The suit also names Sanders and his employer as defendants, but Home Depot would obviously have the deepest pockets for a judgment. “Given the size and nature of the products sold by Home Depot,” Nancy Zanard alleges,

it was reasonably foreseeable that standard shopping carts could be stacked so high as to obstruct the view of a customer as he or she pushed the cart through the store or exiting the store and in the adjacent parking lot.

Florida courts do not appear to have addressed a case of negligent cart-loading before. But Kolosky v. Winn Dixie Stores, 472 So.2d 891 (1985) -- the case of a woman injured in a collision with three boys running through a grocery store playing tag -- may favor Zanard's widow.

Reinstating a $100,000 jury award, the 4th District Court of Appeal said evidence that store employees observed the children “running unsupervised through the store aisles several times over the course of approximately thirty to forty-five minutes” was “sufficient to support a finding of constructive notice of the dangerous condition and a reasonable opportunity to correct it.”

Winn Dixie cited cases in which a business was not found liable for injuries inflicted on one customer by another, but the appeals court ruled they were distinguishable because “each involves a sudden, unexpected action by the tortfeasor where there was no prior indication that the tortfeasor was engaging in the type of conduct which caused the injury.”

In the Zanard case, Home Depot may have had “actual notice” of a dangerous condition if the employee helped Sanders load his cart.

As for causation, Nancy Zanard only needs to show that some injury to her husband –- not necessarily the exact injury he suffered –- was the reasonably foreseeable consequence of Home Depot's conduct. In Kolosky, “[E]xactly that type of injury which is foreseeable from children running unrestrained through a store did in fact occur: they ran into a customer and knocked her down,” the 4th District noted.

The court also expressed approval of a case in which an Oklahoma judge held a store liable for an accident caused by a five-year-old who had been allowed to run unsupervised through the aisles pushing a shopping cart.

By Matthew Heller
11/11/08