There are several common elements of these claims:
A common defense asserted in these types of claims is that the merchandise was caused to fall by the actions of some other customer. Most courts have rejected that intervening cause type of argument on the grounds that other customer’s conduct is foreseeable.
Likewise, the defense of contributory negligence may come into play if the merchandise is jarred by the plaintiff attempting to reach something that is otherwise beyond reach by stepping onto a lower shelf or projection. Although that may potentially create a contributory negligence situation many courts that have dealt with the issue have considered that type of conduct by the plaintiff to be foreseeable.
The application of res ipsa loquitur has, in most instances, been rejected by the courts because the merchandise is not necessarily within the exclusive control of the defendant. The doctrine however may have some application.
The magnitude of the danger needs to be clearly emphasized. A five pound object that falls only a few feet exerts a force many multiples of its weight. Developing that type of evidence through expert testimony can be compelling.
There is already a body of case law involving many of the big box stores as to these types of claims. The continued disregard of customer safety may serve as the basis for a nuisance claim and injunctive relief to cause these stores to take necessary steps to protect customers or to otherwise post a warning at their front entrance as to the nature of the danger that customers are to be exposed to.
If you have been injured as a result of falling merchandise, contact us. Brien Roche has decades on expertise in falling merchandise litigation and waits to serve Northern Virginia and D.C area citizens.