Falling Merchandise News

As big box stores such as Home Depot dominate the retail landscape of America, more and more shoppers have been filing lawsuits that allege these stores are negligent, relating to storage/transporting of in-store merchandise. Home Depot, for example, has denied the allegations stating that safety has been, and always will be, a priority. More commonly known as "falling merchandise accidents," such cases that plaintiffs have filed against Home Depot have been on the rise. Falling merchandise incidents have the following common characteristics:

High stacking – A trademark of the retail warehouse merchant is high stacking, characterized by safety experts as the storage of merchandise on the sales floor above eye level. Merchandise is often stacked on shelves 15 ft. above the sales floor. A sales clerk or customer must stretch, use a ladder or step stool, or climb on shelves to handle merchandise.

Unsecured merchandise – Typically, merchants do not use physical-restraining safety devices such as security bars, fencing, safety ties, and shelf extenders on high shelves because of the expense involved and the employee time it would take to use them.

Triggering events – Falling merchandise can be triggered by moving merchandise that has been stacked in an unstable manner, moving merchandise on one shelf in such a way that merchandise on an adjacent shelf falls, referred to as "push through," stacking different size boxes on top of each other, and stacking heavy merchandise on top of lighter merchandise. Vibrations in and out of a store, merchandise left hanging over the lip of a shelf, and merchandise too large for a shelf can also cause the problem.

No warning of danger – Typically, the merchandise falls without any warning to unsuspecting customers. Notwithstanding that merchants know of the risk of falling merchandise from high stacking and the potential for serious injury to customers, they do not warn customers of these risks with signs, banners, or placards, do not cordon off shopping aisles when merchandise is being stocked or retrieved, and do not use spotters when stocking is in progress.

Customer not negligent – Generally, the customer is not the cause of the merchandise falling, and is generally not charged with a duty to watch for falling merchandise, or to expect merchandise to fall.

Improper training – Store personnel may have been improperly trained, or not trained at all, in stocking techniques or in recognizing and correcting the hazards of falling merchandise. A number of incidents could be prevented if merchants would train employees in procedures for recognizing hazards, and would ensure that the merchandise is safely stacked.

Nature of injuries – A significant percentage of injuries occur to the head, neck, back, and upper torso. Even light merchandise becomes dangerous, when it falls from a high shelf. For example, a 5-lb. object falling about 2 ft. exerts a force of about 319 lbs.

Incidents tracked – Merchants in the retail warehouse business commonly track incidents. They know of the serious nature of the problem. Also, most know there are a far greater number of "near misses" than "hits."

Unfortunately, when "hits" occur, such accidents have resulted in serious consequences. For example, there was a case involving a woman who alleged that a stack of V-shaped aluminum sheet metal pieces slid off a rack at a Houston Home Depot, and hit her knee, leg and foot. The woman underwent surgery on her foot and had her kneecap replaced. It's not known if the woman initiated litigation against Home Depot. Damages generally are substantial, because injuries caused by merchandise falling off a high shelf can be serious. Injuries, such as torn ligaments and damaged disks, are indisputable, unlike soft-tissue injuries.

Many cases involving injuries at big box stores are settled within a reasonable period of time. For example, a shopper settled under a confidentiality agreement in Harris County for an undisclosed amount in May 2001. He allegedly suffered back, neck, knee and ankle injuries at a Houston-area Home Depot in August 1999 when a store employee, who was operating a forklift, knocked five 50-lb. paint buckets onto him, while he was crouching in the aisle looking at merchandise on a low shelf. The plaintiff underwent numerous surgical procedures.

In a case in August 1998, a woman received a confidential settlement for bodily injuries sustained in a Boise, Idaho, Home Depot store when she was hit by a 150-lb. water heater which fell from a 16-ft. high shelf. The woman was seven months pregnant at that time.

In a case in September 1998, a man sustained brain damage and bodily injuries including a crushed foot when four pallets of roofing shingles, weighing approximately 14,000 lbs. and stacked approximately 14 ft. high, collapsed and buried him. A confidential settlement was reached.

The problem with falling merchandise has been well-known in the industry for years, even in the late 1970s when the big box stores began opening. In an August 2000 article, the Los Angeles Times cited 185 complaints as the number of weekly injury complaints that the retailer allegedly had received in 1998.

The claims in these cases fall under premises liability, but falling merchandise cases are unique to the retail warehouse industry. Despite numerous lawsuits and millions of dollars in jury awards and settlements against various discount retailers and warehouse superstores, the toll continues to mount.

Home Depot officials say their stores are reasonably safe, that accidents are rare, and that they're constantly striving to prevent mishaps. They note that the number of customers injured from falling merchandise are a fraction of the 30,000 transactions recorded each week at a single Home Depot outlet. However, safety experts and lawyers representing injured shoppers have alleged that big box stores often violate their own safety rules, sacrificing shoppers' safety by stacking heavy and dangerous objects up to 20 ft. above the floor, without restraining devices.

Remedies are often left to the civil courts, which have been flooded with hundreds of damage suits. Home Depot and other retailers have successfully defended many of these suits, but have paid confidential sums to settle, or have been ordered by juries to pay sizeable monetary verdicts.

Home Depot has stated that customers should be accountable for injuries suffered from falling merchandise. They say shoppers should know the risks associated with shopping in a warehouse- style retail store. Home Depot has stated that shoppers should be aware that they are in a working warehouse, and that they need to be aware of what's going on around them, just like when they're driving a car. However, the courts haven't always favored the retailer's contention that shoppers bear responsibility for falling merchandise. Home Depot has written policies requiring stores to shrink-wrap all goods stacked high on shelves. Several years ago, Home Depot began requiring spotters to prevent shoppers from entering the area – and the adjacent aisles – where forklifts are operating.

Stacking merchandise to the ceiling is an added concern in earthquake-prone California. Home Depot officials acknowledged as much. Four of the company's Los Angeles stores suffered $2.3 million in damage during the 1994 Northridge earthquake. A video produced for store managers depicted the extensive damage – collapsed steel shelves and mounds of fallen boxes, tiles and other merchandise piled high when they fell in the aisles. Home Depot has stated that its steel racks exceed code requirements.

The federal Occupational Safety and Health Administration (OSHA), which monitors workplace safety, has rules requiring that merchandise stored in tiers be "stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse." However, OSHA seldom fines big box stores, according to statistics, even in cases where shoppers die as a result of falling merchandise, or some other accident. The agency sometimes steps in if officials learn through news reports, about a death or injury of a shopper – but only if they believe that workers' safety is being jeopardized. At least one state has considered falling merchandise such a problem that they have enacted legislation to document customer injury cases. California passed some legislation where they wanted falling merchandise injuries reported to their state OSHA.

The California law, enacted in July 2002, requires warehouse stores to put safety devices on products placed higher than 12 ft., creates "safety zones" around operating forklifts and requires a full report of in-store injuries.

Home Depot has been addressing issues relating to falling merchandise accidents in their stores across the nation. For example, in addition to extensive safety training in the store, Home Depot has a director of safety. Home Depot uses bright orange netting and shrinkwrap to secure products on high shelves.