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Shopping Cart Duty
by Michael Blahy

Linda and Marshall Unger went to a Wal-Mart store in Mobile, Alabama on May 20, 2014. Linda dropped her 77 year old husband off at the entrance and then parked the car. Marshall walked to the front of the cart corral to retrieve a shopping cart. He placed his portable oxygen tank and his walking stick in a cart that was stuck to another shopping cart. He tried to separate them, and when he did, he lost his balance and fell to the floor.

Apparently, he fractured two vertebrae in his thoracic spine. Aid was provided by several Wal-Mart employees, and Marshall Unger refused to have an ambulance called.

In January 2015, Unger sued Wal-Mart Stores East, L.P. and some of its employees (Wal-Mart defendants) alleging that they had been negligent and/or wanton in that:

  • the store greeter, failed to "stage a clean [shopping] cart for easy access in violation of Wal-Mart's policies"

  • "the Wal-Mart employee collecting carts from outside the store overloaded the machine used for collecting carts creating an unsafe condition that consumers would have no knowledge of"

  • Wal-Mart failed to train and/or supervise its employees.

Marshall Unger passed away in April 2016 from multiple causes, so his wife Linda Unger (plaintiff) was appointed to continue the action. The Plaintiff added a claim alleging wrongful death, saying that the deceased was in poor condition when he entered the store, and his death was accelerated by the injuries and pain from his fall.

The trial court granted the Wal-Mart defendants motion for a summary judgment. The court also denied a postjudgement motion filed by the plaintiff.

Linda Unger appealed.

Alabama law says “The owner of premises owes a duty to business invitees to use reasonable care and diligence to keep the premises in a safe condition, or, if the premises are in a dangerous condition, to give sufficient warning so that, by the use of ordinary care, the danger can be avoided.” The duty to warn only applies to “hidden defects and dangers that are known to [the premises owner], but that are unknown or hidden to the invitee

The plaintiff argued that Wal-Mart's duty is defined by its standard operating procedure for staging carts, which was violated by the greater by failing to provide Unger with a single, unattached staged shopping cart.

The Wal-Mart store manager testified “a store policy is straightforward--if an employee violates a store policy, there are repercussions … a standard operating procedure, on the other hand, is merely a guide ‘on how to do certain things’ ... a greeter's primary responsibility is customer service and that, because a greeter has other responsibilities, the greeter cannot provide a shopping cart for every customer who enters the store … staging shopping carts is merely a courtesy”.

Video surveillance showed that the greeter had separated four shopping carts. While the greater was assisting an elderly customer with an electric shopping cart, the four staged carts were taken by other customers.

The plaintiff also argued that an unsafe condition was created by the employee retrieving shopping carts by loading more than 20 carts on the machine used for collecting carts. In his deposition, Marshall Unger testified that he had talked to several employees at other Wal-Mart stores about overloading the collection machine. He also admitted not knowing whether the two stuck carts were brought in by an overloaded machine.

The appeals court ruled “the plaintiff has failed to offer any evidence, other than speculative theories, as to how the two carts Unger was separating when he fell got stuck together … ‘[m]ere conclusory allegations or speculation that fact issues exist will not defeat a properly supported summary judgment motion, and bare argument or conjecture does not satisfy the nonmoving party's burden to offer substantial evidence to defeat the motion’. Accordingly, the trial court did not err in entering a summary judgment in favor of the Wal-Mart defendants … her negligent-and/or-wanton-supervision and-training claim is without merit ... Accordingly, the summary judgment in favor of the Wal-Mart defendants is affirmed.

(Unger v. Wal-Mart Stores East, L.P. (Supreme Court of Alabama, Docket: 1170657))

Decided: October, 2018
Published: October, 2018

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