The Law

Obvious Sign? by Michael Blahy When admitting that a sign has been used to find product in a lumber yard, and admitting to stepping over the same sign multiple times, can it still be a hidden and obscure hazard? In mid February, 2017, Robert McCarty and his employee Tristan Parks went to the Menard’s store in Antioch Illinois for some oriented strand board (OSB) needed on a renovation project. They drove a truck into the lumber shed where stacks of materials were piled. The piles had knee high display signs with protruding wooden legs, describing the product. The signs normally are set flush against the stack of material. They found the 3/4 inch OSB in a stack behind the appropriate display sign. McCarty and Parks started moving the OSB boards from one pile to another looking for undamaged boards. While shuffling boards, McCarty tripped on a leg of a display sign protruding from in front of the stack to his right. McCarty filed suit in the district court, which dismissed it in favor of Menard saying: A reasonable person in Mr. McCarty’s position, who saw that there were signs, chose the stack he wanted by looking at the signs, walked right up to the signs, was working within a few feet of the protruding sign, and either repeatedly stepped over it or turned toward it, would have noticed the large sign and legs as a tripping hazard. He appealed to the United States Court of Appeals contending that the district court made impermissible credibility determinations by disregarding his testimony that he was unaware of the display sign. He argued that the sign was not open and obvious as a matter of law because he was unaware of the display sign prior to tripping. They reviewed the district court’s summary judgment determination and made only reasonable inferences, not every conceivable one, in McCarty’s favor. Businesses owe their customers a duty of care to keep their premises reasonably safe. Four factors are considered when deciding if a duty of care exists: the reasonable foreseeability of the harm the likelihood of the injury the magnitude of the burden of guarding against the injury the consequences of placing that burden on the premises owner The open and obvious doctrine is used to analyse the first two factors. When conditions are obvious, people are expected to appreciate and avoid obvious risks. At deposition, both McCarty and Parks testified that they used the display signs to find the correct thickness OSB. McCarty also testified after moving a sheet of OSB, he would “come back and pick up another sheet”. It would be reasonable to conclude that McCarty saw the protruding sign while standing right in front of it. So for factors one and two, “[w]here the condition is open and obvious, the foreseeability of harm and the likelihood of injury will be slight“. The court next considered the third and fourth factors dealing with Menard’s “burden in guarding against safety hazards outweigh the first two factors?“ Menard has internal policies requiring safety inspections to correct hazards. The store’s records show regular monitoring and inspections of the lumber yard. Further more staff is available to assist customers as needed. Previous court cases held that “imposing any larger burden on Menard to guard against safety hazards, such as constant surveillance, would be unreasonably onerous”. The Appeals Court determined that the first two factors did not outweigh the last two and summarized, “[b]ecause McCarty has not established that Menard owed him a duty of care, we need not address his causation arguments. ‘[U]nder Illinois law, a plaintiff must establish the existence of a duty, the defendant’s breach of that duty, and that the breach proximately caused the plaintiff’s resulting injuries’. “We AFFIRM the district court’s judgment.“ (Robert McCarty v Menard, Inc (US Court of Appeals for the Seventh Circuit, Docket: 18-3069)) Decided: May, 2019 Published: May, 2019 Feature Articles If you have an opinion on the retailing or retail real estate industries, take this opportunity to share your thoughts. Articles should run between 400 and 800 words. Topics can, be general in nature, consumer observation or specific to retail concepts or practices. Articles will be posted for at least one week and will then be placed in the Editorial Archives. All articles submitted will be read and considered but we cannot guarantee publication. Each published article will carry the submitters byline (if desired) and is a free service to our community. Article ideas and suggestions are also always welcomed. Contact PVS@PlainVanillaShell.com