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WHEN CAN A PREMISES LIABILITY PLAINTIFF COLLECT FOR INJURY CAUSED BY A STATIONARY OBJECT?

Under what circumstances may a customer in a retail store (for example) sue for an injury caused by a display, a pallet, or some other stationary object, as opposed to a spill or some other "foreign substance" on the floor?

The Tennessee Court of Appeals recently addressed this question in Hunter v. Kroger Limited Partnership I, No. W2017-01789-COA-R3-CV, which came out on 11/5/18. It is unknown whether any attempt will be made to appeal this decision.

In the Hunter case, plaintiff had fallen and injured herself after being bent over and looking into a freezer of frozen food. She backed up to allow another customer to pass and fell over a wooden pallet that had been left in the center of the aisle. The pallet had been left by an employee, who apparently was still stocking merchandise nearby.

While one might have thought that this would be enough to get the plaintiff to a jury on the issue of negligence, the trial court dismissed her claim before a jury trial, and the Court of Appeals affirmed. The key seemed to be the lack of evidence offered by the plaintiff that the pallet constituted a dangerous condition. The Court of Appeals discussed other cases that appear to be factually similar (including one I litigated recently on behalf of the defense), which had allowed the claims to go forward, but the court in Hunter went to great pains to distinguish those cases because of their facts. For example, in certain cases in which the plaintiff had claimed to have been "distracted" by merchandise, and therefore claimed to be excused from seeing the display or other object over which he/she tripped, there was at least some evidence of distraction. The key in Hunter seemed to be the lack of evidence, other than the basic fact that a pallet was left in the aisle.

Stated another way, a pallet, display, or other stationary object is usually not, by itself, dangerous. But other circumstances may make it so. In Hunter, the court felt that there were no such circumstances.

This case should serve as ammunition for premises liability defendants in appropriate cases. For plaintiffs, it instructs that evidence should be developed concerning all of the essential elements of a case, including whether a condition that causes an injury is "dangerous" in the eyes of the law. If it is a stationary object, such as a display, a curb, or, in this case, a wooden pallet, there must be some evidence that it was dangerous, since those objects are not generally considered dangerous all by themselves.

MBG

Parker, Lawrence, Cantrell & Smith

201 Fourth Avenue North, Suite 1700, Nashville, Tennessee 37219

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