Aug. 18, 2000 -- When Gregory Real, a deep sea diver who until three years ago fished sea urchins off the coast of southern California, set out to buy a wastebasket at the local Wal-Mart back in 1997, he didn't know it would change his life.
As he reached for the container, the pile stacked high on a shelf came tumbling down on his head, dislocating one of his spinal discs.
Ever since, he’s suffered with recurring headaches and disorientation, forcing him out of work and ending his diving career, he says.
Real’s case is not a freak accident, according to lawyers who are taking more and more cases like his. Injuries, and even deaths, from falling merchandise are becoming increasingly common, with thousands of people hurt or killed while shopping since giant warehouse stores began popping up throughout suburban America in the late 1980s and early ’90s.
While representatives of megastores say claims from falling merchandise represent a small fraction of all accidents, trial lawyers say the number is still huge and people continue to die and suffer life-changing injuries from goods that drop 12 and 16 feet from massive shelves. What’s more, they say, the giant chain stores are doing little to improve safety.
“You will not see one sign to ‘watch for falling merchandise’ or ‘here’s a hard hat,’” said Jeffrey Hyman, who has tried hundreds of cases against some of the biggest superstores. “They know the dangerous conditions they have created and yet there is no recognition of the problem except when we try these cases.”
One of the most recent cases involved 79-year-old Mary Penruff, who was killed in a Home Depot store in Los Angeles when a pile of falling lumber crushed her after a 19-year-old forklift operator accidentally knocked it over.
“My mom is gone and nothing will bring her back,” said daughter Maggie Harrison, fighting back tears. “But I am outraged at the conditions and that they continue to be sloppy when they would be so easily enforced.”
Stores Defend Themselves
Home Depot, which recently agreed to pay Penruff’s daughters $900,000 in punitive damages, says they are not sacrificing safety. They could not provide the number of claims filed in their stores.
“No injury is acceptable under any circumstances,” said Jerry Shield, spokesman for Home Depot. “We are working to keep our stores safe for the 2 billion customers we get every year.”
A spokeswoman for Wal-Mart said that in 1998 they received 4,000 claims of injury as a result of falling merchandise in their stores nationwide, but compared to the more than 2.5 billion customer transactions, the numbers are small.
“We don’t want one person to be injured; one injury is too many for us,” said Wal-Mart spokeswoman Jessica Moser. “But when you look at sheer volume of customers you will see claims are a very, very small fraction of those numbers.”
But no one is really sure what the numbers are.
Hyman, who brought one of the first lawsuits against a megastore for falling merchandise, said documenting how often these incidents occur is difficult. The case brought Phil Sherrill, of Littleton, Colo., $3.3 million for a 1994 accident at Wal-Mart,
He said that according to documents he received as a result of litigation, Wal-Mart reported 17,000 cases of falling merchandise resulting in injury to customers between 1989-94. Of those cases, 30 to 40 percent resulted in injuries to head, neck, shoulders and/or upper torso.
But once the cases get to court or are settled, many are virtually wiped off the records by sealed settlements, he said.
This is a practice trial lawyers say has kept the issue under wraps.
“They cloak their litigation in a veil of secrecy,” said Stephen Rasak, an attorney for Penruff’s family. “That prevents other attorneys from getting any information.”
That was Home Depot’s intent in the Mary Penruff case, Rasak said.
But the family would not settle its claim and keep quiet. The family wanted to know their mother did not die in vain, he said.
“I think this kind of stuff should be a matter of public record,” Harrison said. “Stores should be rated like restaurants and there should be an outside governing body looking into its safety.”
No Federal Regulations
Other than meeting local fire code standards, there are no federal standards for warehouse stores.
The Occupational Safety and Health Administration only inspects stores if employees have been injured. According to a recent report, more than 700 federal and state inspections were conducted in Wal-Mart, Home Depot and Sam’s Club stores.
Other stores were not included, but it’s not just Wal-Mart and Home Depot who have embraced the business strategy of combining warehouse and retail operations. Many companies from Costco, to Toys-R-Us to Ikea have adopted the warehouse shopping model as a cost-saving measure.
Lawyers and victims say these giant warehouse spaces with hundreds of customers strolling its giant aisles could easily improve safety for customers by installing railings or netting on their ceiling-high-shelves, but there are very few stores with restraints set up to keep the merchandise in place, even in earthquake-prone areas like California.
“There are no safety nets, no rail system, merchandise just dangles ready to cause total catastrophe,” Hyman said.
In Mary Penruff’s case, the forklift operator should have blocked off the aisles and used spotters to direct him around the merchandise. But neither of these things was done in her case, he said.
In Real’s case, the jury found that workers in the adjacent aisle helped push some of the merchandise off the shelf, contradicting defense attorneys who said Real was to blame.
Last week, a jury awarded Gregory Real $365,000 for lost wages and medical expenses, but his family says he has lost the opportunity to ever dive again. Doctors have warned him water pressure could compress his spine and paralyze him permanently.
“It is something he loved to do and now he can’t go back into the water as a diver ever again,” said his mother, Trudy Real.
Meanwhile, advocates say only one thing will bring about change.
“It is going to take more carnage, more loss of life, more loss of limb until a jury says you cannot ignore this situation any longer and decides ‘We are going to send message you have to make stores safer.’” Rasak said.