A Lowe’s Home Improvement customer was viewing a kitchen counter display when a box fell from above and hit her between the eyes. She never saw it coming.
The box was not part of the kitchen counter display. The box was on a high shelf, out of reach of customers, and accessible only by ladder. Lowe’s restricted use of its ladders, and intended the shelf to be used only by employees for storing excess product.
Lowe’s did not complete an incident report, did not investigate the customer’s injury claim, and instead removed the display, depriving the customer an opportunity to gather the evidence necessary to establish her injury claim.
Lowe’s denied the claim. The customer sued Lowe’s. Lowe’s moved for dismissal. Lowe’s argued that the customer could not prove how the box fell. Lowe’s also argued that customers sometimes used the ladders—even though Lowe’s did not allow it—and another customer could have disturbed the boxes earlier.
The trial court dismissed the customer’s personal injury claim. The store customer appealed.
Lowe’s cited a court opinion in which a customer was injured when several skillets on a low shelf fell to the floor and injured the customer’s foot. In that case the summary judgment in favor of the store was upheld on appeal.
The Court of Appeals nevertheless distinguished the skillets case, noting that—unlike here—in the skillets case the pans were intended to be and were directly accessible by customers. In contrast, Lowe’s customers could not readily access the shelf containing the boxes, which was out of the customers’ general reach. In fact, Lowe’s affirmatively sought to exclude customer access to this shelf.
The Court also found that Lowe’s removal of the kitchen counter display immediately after the accident supports overturning the dismissal. The Court cited an earlier opinion where a person was injured when he fell through a dock that collapsed under him. The property owner destroyed the dock following her accident. The Court of Appeals held in that case that because the property owner deprived the injured person an opportunity to investigate, a doctrine called res ipsa loquitur applied, and dismissal of the injury claim would be inappropriate.
The res ipsa loquitur doctrine is applied sparingly, in peculiar circumstances where an injury would not ordinarily occur in the absence of negligence, and the agency or instrumentality that caused the injury (the high shelf and the box that fell from it in the Lowe’s case) was within the exclusive control of the other party.
The doctrine has been applied, for example, to cases with objects falling from the defendant’s premises, the fall of an elevator, the escape of gas or water from mains or of electricity from wires or appliances, the derailment of trains or the explosion of boilers—where such things do not usually happen unless someone has been negligent.
The Court reversed the trial court, held that dismissal of the injury claim was improper, and that the customer was entitled to present her claim to a jury.[1]
By personal injury attorney Travis Scott Eller
[1] Lemke v. Lowe’s, unpublished (No. 65849-2-I July 25, 2011).