Here is the article. My memory was pretty good, though it took a while to find it.
Counsel Obtains Settlement For Daughters Of Woman Killed By Falling Merchandise In Store
Hamilton v. Home Depot U.S.A., Inc., Cal., Los Angeles County Super. Ct., No. SC060655, Aug. 2, 2000.
Penturff, a 79-year-old retiree, was shopping with her daughter at a Home Depot store in California. A store employee was operating a forklift nearby, attempting to place a pallet of items onto "sky shelving" that was high overhead near the endcap of the aisle. The forklift struck a display of lattice attached to the endcap as Penturff walked around the end of the aisle. The lattice and other merchandise fell on her, inflicting traumatic crush injuries that caused her death.
Penturff's two adult daughters retained ATLA member Stephen C. Rasak of Torrance, California, and sued Home Depot for wrongful death and loss of society.
Home Depot had safety regulations requiring the presence of a spotter and barricades during operation of a forklift, but no spotter or barricade was present at the time of the accident. In addition to citing the store's violation of its own safety rules, plaintiffs contended that defendant was guilty of willful and deliberate misconduct that justifies imposition of punitive damages. Defendant was aware that several of its patrons had been injured and killed by its sky-shelving operation, plaintiffs alleged, noting that this method of storage had led to 68 prior lawsuits and 46 workers' compensation claims.
Rasak found that during the three months following Penturff's death, three other Home Depot patrons had been killed in similar accidents. One case involved a 3-year-old girl killed at a Home Depot store in Twin Falls, Idaho, when a countertop fell from sky shelving and impaled her in front of her parents. Also, in a 1992 incident at a Miami, Florida, store, eight customers were badly injured when a forklift backed into two shelfposts, causing several layers of ceramic tile shelving to fall to the floor.
Rasak's research also revealed that several thousand similar accidents have occurred over the years at other stores with similar sky-shelving policies. The reason these large stores had been able to get away with these unsafe practices for so long, Rasak found, was that cases involving deaths or injuries resulting from falling merchandise were almost invariably settled confidentially, to prevent nega-tive publicity. "My clients, by contrast, wanted to get the story out as strongly as possible," he said.
Defendant's approach amounts to operating a warehouse in a retail setting, which creates an unreasonable risk of harm to shoppers, plaintiffs said. Continuing to engage in this practice even after patrons were injured as a result amounts to willful misconduct, they added.
Defendant admitted its stated policies of cordoning off adjacent aisles with banner barricades and using spotters were safety measures, but it denied that their absence on the day of Penturff's accident meant the store should be held liable. It said that its injury and claims histories are actually low given that the company operates more than 1,000 stores in the United States and abroad.
Defendant successfully moved to strike plaintiffs' punitive damages allegations. Plaintiffs filed an amended complaint, contending that defendant's persistence in using this method of storage amounts to "conscious disregard" of public safety within the meaning of Cal. Civ. Code § 3294. Defendant moved to strike the punitive damages claim again, but this time was overruled.
Getting this claim approved was crucial, Rasak noted, because of the difficulty in winning a large compensatory award in a wrongful death case based on the death of a 79-year-old, whose life expectancy was just six more years. "It was really the threat of the punitive damages that brought Home Depot to the settlement table," he said.
The parties settled for $900,000 before trial. Perhaps even more important for plaintiffs, Rasak said, Home Depot has announced plans to change its sky-shelving policies.
"My clients wanted to ensure that their mother's death was not some futile and senseless event, but rather that it might keep other families from having to go through this kind of horror," Rasak said. "They were quite adamant about not agreeing to a confidential settlement or protective order. They were very pleased to see that the system does work.
atla.org |
