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Liability for Falling Objects in a Texas Big Box Store

shopping-center-1507250 (1)In PNS Stores, Inc. v. Munguia, a store appealed from a judgment awarding a plaintiff $1,048,500 in damages in his premises liability case. Two bottles of deck wash fell from a shelf five feet high and hit the plaintiff on the head when he and his son went to the defendant’s store in Pasadena to buy a trashcan. Before being hit, he saw one or two 32-ounce bottles falling, and he witnessed one or two more bottles fall from a shelf. No warning cones or signs had been placed in the aisle.

As he approached the bottles, the plaintiff saw a store employee coming from the other side of the aisle where he was stacking merchandise. The plaintiff helped the store employee pick up the fallen bottles, and he was standing up when two bottles fell and hit him on the head. The store employee later stated he’d knocked the bottles off the shelf, and they hit the plaintiff.

The plaintiff was dazed. He spoke to the manager. The incident report included the store employee’s statement. The report also noted that the plaintiff’s ear was red due to the force of the impact. When he went home, the plaintiff was nauseated and weak, and he sought medical attention. He was advised by a medical clinic to go to the ER for evaluation of head trauma, but he went back home instead.

His symptoms continued, and he eventually did go to the ER. He was given a CAT scan and told he probably had a concussion. The doctor told him to rest for 7-10 days and then see a doctor if his symptoms didn’t go away. Eventually, since┬áhis symptoms didn’t improve, he got treated at a clinic and prescribed physical therapy. He continued to have ringing in his ears, although his neck and shoulder pain did improve. He went to see a neurologist, who believed he suffered from PTSD, dizziness, and a closed head injury.

Medications were prescribed, but at the time of trial, his symptoms were still continuing. He couldn’t work as an actor or pursue his hobbies. His family relationships were adversely affected. Another neurologist diagnosed him with an organic brain injury, cognitive disorder, and depression. At trial, a neurologist testified that a small number of people with concussions suffer permanent residuals, requiring a longer recuperation than six months.

The defendants presented medical experts to rebut this and other testimony from the plaintiff’s doctors. One testified that the plaintiff’s complaints weren’t related to being hit at the defendant’s store. Another testified that the plaintiff’s doctor had misinterpreted his testing and that the plaintiff had suffered a mild traumatic brain injury or concussion but didn’t have cognitive dysfunction as a result.

The jury ultimately found the store 90% liable and assigned the plaintiff 10% of the responsibility. The court signed a judgment for the plaintiff. The recovery after the plaintiff’s own responsibility was factored in was $1,048,500 plus interest. The defendant filed a motion for a new trial, which was denied. It appealed.

On appeal, the defendant argued that its liability expert’s testimony was improperly excluded and that the evidence didn’t support the awards for economic damages and physical pain and mental anguish. It also argued the damages were excessive.

The appellate court explained that the evidence at trial is sufficient if it would allow reasonable people to reach the verdict that is being reviewed. The court cannot substitute its opinions about credibility for the jury’s opinions.

The defendant argued that its liability expert was experienced in the safety of product displays like the one that fell. The trial court determined that the expert was knowledgeable about marketing, not safety, and that she hadn’t done any tests or examinations of the aisle in question. The appellate court noted that she had no information about what happened other than what the defense attorney told her. Therefore, the appellate court found that there was no abuse of discretion in excluding her testimony.

The plaintiff agreed that the evidence didn’t support the full sum awarded by the jury for past medical expenses, but he argued that the court should modify the judgment or suggest a remittitur. The appellate court explained that a remittitur or revision could be suggested if there isn’t enough evidence to support the full damages amount, but enough to support a smaller award.

The court found that the appropriate amount should have been $18,916.43, and it suggested a remittitur. However, it found enough evidence to support the award for past physical impairment, past pain and mental anguish, and future pain and mental anguish. It explained the jury has discretion over the amount of damages for amorphous injuries like pain and anguish.

If you are injured due to falling objects in a big box or other retail store, the experienced San Antonio attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your premises liability case. Call our office for more information at 1-800-862-1260.

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