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Shopper struck by falling Christmas tree boxes at Big Lots – Defendant’s motion for summary judgment granted

Virginia Lawyers Weekly//February 1, 2016

Shopper struck by falling Christmas tree boxes at Big Lots – Defendant’s motion for summary judgment granted

Virginia Lawyers Weekly//February 1, 2016//

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Plaintiff claimed boxed artificial Christmas trees were improperly stacked, fell from a shelf and struck her in the head at the Big Lots store in Fredericksburg on Dec. 8, 2012. Plaintiff, who was 25 years old and five months pregnant at the time, was shopping with her 5-year-old son when one or two 22-pound boxes containing artificial Christmas trees fell from an overhead storage shelf and allegedly struck her in the head. At deposition and in her written discovery responses, plaintiff claimed she did not know how or why the box(es) fell. Only one eyewitness saw a box strike the plaintiff, but did not know how or why it fell. A Big Lots employee testified that another customer admitted to knocking the box off the shelf. After her deposition testimony, the plaintiff produced three separate emails she composed within three months of the incident stating that the box(es) fell because someone was “messing with them.”

Plaintiff visited the emergency room after the incident, where she denied loss of consciousness and complained of dizziness, nausea and a headache. She was diagnosed with a concussion with amnesia and released. Over the next several months, the plaintiff complained of numerous cognitive symptoms attributed by her experts to post-concussive syndrome and related seizure activity.

Plaintiff filed suit in Richmond Circuit Court on Dec. 18, 2013, seeking only $50,000. Her complaint alleged “serious” injuries, but omitted any mention of, or allusion to, a head injury. On April 18, 2014, Big Lots removed the case to the Richmond U.S. District Court and simultaneously filed a Rule 68 offer of judgment for $75,000. Plaintiff then acquiesced to federal jurisdiction and sought leave to increase her ad damnum to $20 million.

Plaintiff subsequently underwent extensive psychiatric, psychological, physical therapy and occupational therapy treatments, beginning with Dr. Gregory O’Shanick and continuing later with other treating and/or expert providers. Dr. O’Shanick was expected to testify that the box striking the plaintiff’s head at Big Lots caused a diffuse axonal injury (damage to her nerve cell axons through axonal “shearing”). Plaintiff refused to take anti-convulsion medication during her pregnancy and while breastfeeding and Dr. O’Shanick opined her “post-traumatic seizure focus” went untreated, causing a permanent “post-TBI neuropsychiatric disorder.” Plaintiff’s team of experts recommended she undergo 12 to 18 months of residential neuro-rehabilitation treatments, and opined that her ability to obtain gainful employment or live independently was “non-existent.” Plaintiff’s life care plan totaled between $10 and $20 million. She claimed an additional $980,000 in lost earning capacity.

Big Lots defended the case based on the plaintiff’s lack of any evidence of how and why the box(es) fell from the shelf – the absence of proof of primary negligence –  and her admissions that a third party (for whom Big Lots was not responsible) caused the box(es) to fall. Plaintiff retained structural engineer Michael A. Matthews, who inspected the shelf and two exemplar boxes in August 2014, and opined a series of minor flaws in the construction and maintenance of the shelf could have converged and caused the box(es) to fall and strike the plaintiff in the presence of “normal vibrations or minor movements.” Big Lots’ architectural expert, Lawrence Dinoff, opined the shelves were properly constructed, Matthews’ confluence of conditions theory was speculative and unfounded, and the boxed artificial Christmas trees were stored on the shelf in compliance with industry standards.

Big Lots filed a Daubert motion to exclude Matthews’ testimony, which the court granted, finding Matthews’ “recipe” of allegedly dangerous conditions that could have caused the incident to be unreliable and speculative. The court granted Big Lots’ motion for summary judgment, finding that the plaintiff failed to provide evidence that a dangerous condition existed in Big Lots’ store on the date of the incident, which foreseeably caused the box to fall off the shelf and hit her. The court rejected plaintiff’s arguments regarding the applicability of the foreseeability standard of liability, as articulated by the Supreme Court of Virginia in O’Brien v. Everfast, Inc., 254 Va. 326 (1997) and Holcomb v. NationsBanc Financial Servs. Corp., 248 Va. 445 (1994). Distinguishing both cases from the present facts, Judge James R. Spencer opined that even if the plaintiff had evidence of a dangerous condition, she provided no evidence that Big Lots had actual or constructive notice of the condition. On Nov. 5, 2015, the 4th U.S. Court of Appeals affirmed, stating “…a jury would … have had to resort to ‘conjecture, guess, or random judgment’ to find liability on the part of Big Lots. See I, 229 S.E. 2d 349, 351 (Va. 1983).” A motion for rehearing and rehearing en banc was denied on Dec. 22, 2015.



Type of action: Premises liability – falling merchandise
Injuries alleged: Traumatic brain injury, post-concussive syndrome, retro-cerebellar arachnoid cyst, cognitive deficits, personality and behavioral deficits, headaches, musculoskeletal pain
Name of case: Palmer v. Big Lots Stores Inc.
Court: U.S. District Court, Richmond
Case no.: 3:14-cv-00276-JRS
Judge: James R. Spencer
Date resolved: Jan. 12, 2015
Special damages: $11,863,939.35 to $21,482,926.35 ($36,080.35 medical expenses; $10,917,859 to $20,536,846 life care plan; $910,000 lost earning capacity)
Demand: $20 million (ad damnum)
Verdict or settlement: Defendant’s motion for summary judgment granted
Attorneys for defendant: J. Matthew Haynes Jr. and Michael H. Gladstone, Richmond
Attorneys for plaintiff: Stephen M. Smith and David B. Holt, Hampton; Stephen C. Swain, Virginia Beach; Edward E. Scher, Richmond; Kevin W. Mottley, Richmond
Defendant’s experts: Lawrence C. Dinoff, liability; Dr. James Levenson; Dr. Neil L. Pugach; Dr. Scott W. Sautter
Plaintiff’s experts: Michael A. Matthews, liability; Dr. Gregory J. O’Shanick; Dr. James E. Sellman; Dr. Timothy M. Silver; Dr. Harvey E. Jacobs; Charles DeMark; Edward M. Cross

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