Eleventh Circuit rules for Wal-Mart in personal injury suit

Jessica M. Karmasek Aug. 24, 2012, 1:30pm

ATLANTA (Legal Newsline) - A federal appeals court this week upheld a ruling in favor of retail giant Wal-Mart in a personal injury lawsuit.

The U.S. Court of Appeals for the Eleventh Circuit, in a ruling Wednesday, affirmed the decision of the U.S. District Court for the Middle District of Florida.

Plaintiff Angela Hancock appealed the judgment entered in favor of Wal-Mart Stores East LP and against her complaint of negligence following a jury trial.

Hancock was injured in a Jacksonville, Fla., store when three bags of beach toys fell from a display shelf and struck her head, shoulder and back.

In her original complaint, filed in a Florida court, Hancock alleged that Wal-Mart's negligence proximately caused her injuries. Wal-Mart removed the complaint to the federal court based on diversity of citizenship.

In her appeal, Hancock argued that the district court erred by not instructing the jury about the doctrine of res ipsa loquitur.

The doctrine of res ipsa loquitur -- Latin for "the thing speaks for itself" -- states that the elements of duty of care and breach can be sometimes inferred from the very nature of an accident or other outcome, even without direct evidence of how any defendant behaved.

The Eleventh Circuit, in its five-page opinion, said the district court did not err when it denied Hancock's request for a jury instruction about res ipsa loquitur.

"The Supreme Court of Florida has held that 'it is incumbent upon the plaintiff to present his or her case in a manner which demonstrates and satisfies each of the doctrine's requisite elements and only after the plaintiff carries this burden of proof may a court supply the inference,'" the court wrote.

"The record establishes that Hancock failed to satisfy even the first element of the doctrine."

In particular, the Eleventh Circuit said the plaintiff failed to establish that direct proof of negligence was wanting.

"Hancock instead introduced evidence that an employee of Wal-Mart, (assistant manager Angel) Wilhelm, stacked the bags of beach toys incorrectly," according to the court's non-published, per curiam opinion.

"Wilhelm testified that, approximately 30 minutes before the incident, she had reconfigured the bags and had stacked them 'three high and two high' on different shelves. Hancock elicited testimony from the store manager, Gentle Raines, that Wal-Mart had policies that required its employees to display merchandise in a 'straight and stable manner'; avoid placing merchandise 'where it could fall on a customer'; 'not overload shelves with merchandise'; and perform a 'bump test' after stacking merchandise on shelves to ensure it did not 'slide or teeter.'"

Although Wilhelm testified that she conducted a "bump test" after she reconfigured the bags, she acknowledged that she never recorded testing the bags; she investigated the incident; and she would have been disciplined had she failed to perform the test.

Hancock testified that, as soon as Brown arrived at the scene, he looked at the top shelf, asked "who stacked these baskets this high," and removed the baskets from the shelf.

"Hancock 'introduce[d] enough direct evidence of negligence to dispel the need for the inference' that an instruction about res ipsa loquitur would otherwise supply," the Eleventh Circuit concluded.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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