Wal-Mart pummeled with lawsuits after bird-seed accident

Margaret Benjaminwas shopping at a Wal-Mart store in the pet department. Unknown to her, therewas loose bird seed on the floor.

Mrs. Benjaminslipped and fell on the bird seed, allegedly suffering severe injuries to herchest, left knee and left side. She brought this lawsuit for negligence byWal-Mart, the department manager, and an employee who was checking inventorynearby. Her husband filed a separate lawsuit alleging loss of consortium.

Purchase Bob Bruss reports online.

The departmentmanager and employee sought to be dismissed as defendants from the lawsuit. ButBenjamin argued they ran the department so they had a duty to prevent injury toher from slipping on the bird seed.

If you were thejudge would you rule the store employees had a duty to prevent a slip-and-fallinjury to Mrs. Benjamin?

The judge said no!

“In order toestablish a claim for negligence, plaintiffs must present evidence of a legalduty owed by the defendants to Mrs. Benjamin, a breach of that duty by anegligent act or omission, and damages that were proximately caused by thatbreach,” the judge began.

“While not aninsurer of the safety of his customers, a store owner owes a duty to keepaisles and passageways in a reasonably safe condition and is liable for anyinjury resulting from the breach of this duty,” he continued.

“This dutyincludes a duty to reasonably inspect the premises and to remove debris thatcould cause the customer to fall. This storekeeper liability is founded uponthe duty of care a possessor of land owes to an invitee,” the judgeexplained.

However, anemployee does not have an affirmative duty to maintain safe premises of a storemerely by being an employee unless there is evidence of a more substantiallevel of control of the business, he emphasized.

In this case, thereis no legal possibility of a successful claim against the pet departmentmanager or the inventory clerk because there was no evidence they negligentlycaused the dangerous condition of the bird seed on the floor, the judge ruled.Therefore, in the absence of proof of negligent hiring, training or supervisionof the employees, they cannot be held liable for Mrs. Benjamin’s allegedinjuries, the judge concluded.

Based on the 2006U.S. District Court decision in Benjamin v. Wal-Mart, 413 Fed.Supp.2d652.

(For more information on Bob Bruss publications, visit his
Real Estate Center

Copyright 2006Inman News

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