Tripped Over a Store Display? Ohio Court Says Shoppers Don't Have to Stare at the Floor (Mulcahy v. Best Buy)

Published March 25, 2014 · Ohio Appeals Courts

You walk into a big-box store on a Sunday afternoon, pick up the vacuum cleaner you came for, and carry the box toward the checkout. You step around another customer, your foot catches on something you never saw, and you go down hard. In the emergency room you learn you have torn the tendon that connects your thigh muscle to your kneecap, and you are looking at surgery and months of therapy. When you make a claim, the store's insurer tells you the thing you tripped on was "open and obvious," so the store owed you nothing.

That is almost exactly what happened to Mark Mulcahy at a Best Buy in Delaware County, north of Columbus, and the trial court agreed with the store. On March 3, 2014, the Fifth District Court of Appeals reversed. Mulcahy v. Best Buy Stores, LP, 2014-Ohio-1163, is a useful decision for anyone hurt in a Dayton-area store, and it is worth understanding both what it says and what it does not.

What happened

On August 1, 2010, Mr. Mulcahy went to Best Buy to buy a vacuum. The box was roughly thirty inches by fourteen inches and weighed ten to twelve pounds. He chose not to use a cart and carried it in front of him at about eye level as he walked to the checkout.

The checkout area was a center aisle with registers on one side and freestanding display fixtures on the other, used for gift cards and batteries. Each fixture had a five-foot vertical panel with hooks and a bottom shelf that stuck out one to two feet into the aisle, about one inch above the floor. On that day the fixture next to Mr. Mulcahy had no merchandise on it at all. The store's floor was black with a light-colored strip down the center; the fixture, including its low shelf, was light-colored too.

As Mr. Mulcahy stepped left to get around a customer who was squatting in the aisle, his sandal caught on the bottom shelf of the empty fixture. He fell, landing with his knee on the shelf, and ruptured his left quadriceps tendon. He and his wife sued. The trial court granted summary judgment for the store, holding that the fixture was open and obvious and that carrying a box in front of his face was Mr. Mulcahy's own choice.

The open-and-obvious doctrine, briefly

A store owes its customers a duty of ordinary care to keep the premises reasonably safe and to warn of hidden dangers. But under a rule the Ohio Supreme Court reaffirmed in 2003 in a different case against the same retailer, a store owes no duty to protect customers from hazards that are so obvious that a customer would be expected to see them and avoid them. If the hazard is open and obvious, the case usually ends before a jury ever hears it. We described how this defense works, and how investigation can overcome it, in earlier posts on what you must prove in a store fall and a shopping-cart trip at a store entrance.

The question is always about the hazard, not the person: would a reasonable shopper, looking at that condition, be expected to discover it?

Why the appeals court sent the case to a jury

The Fifth District made three points that matter well beyond this one store.

Look at the actual hazard, not the whole fixture. The trial court asked whether a five-foot display stand was obvious. Of course it was. But the hazard was not the stand; it was a one-inch-high, light-colored shelf sticking into the aisle at floor level, next to a light-colored strip of flooring. Reasonable minds, the court said, could differ on whether that shelf was open and obvious to a customer walking the checkout aisle.

Carrying a box is a foreseeable "attendant circumstance." Attendant circumstances are facts beyond the injured person's control that distract from or hide a hazard, and they can turn an otherwise open-and-obvious condition into a jury question. Best Buy sells products that come in large boxes and does not require customers to use carts. The court held that customers carrying boxes down the checkout aisle is something the store should anticipate when it places a low shelf there. The court also noted that how Mr. Mulcahy carried the box might matter to comparative negligence, which is a jury question about dividing fault, but it does not decide whether the store had a duty in the first place.

An empty display can be more dangerous than a full one. The store argued that an empty fixture could not possibly distract anyone. The court turned that around: an empty, light-colored panel might look like a wall to a shopper with an armful of bundles, giving no cue that a shelf projects from its base. The court then quoted a rule that goes back to a 1965 Ohio Supreme Court case: "A pedestrian in a store is not required as a matter of law to constantly look downward."

The case was sent back for trial. The court did not decide that Best Buy was negligent; it decided that a jury, not a judge, should answer that question.

A word of caution for Dayton-area cases

Mulcahy was decided by the Fifth District, which covers Delaware County and other central and eastern Ohio counties. It does not bind the Second District Court of Appeals, which hears cases from Montgomery, Greene, Miami, Clark, Champaign, and Darke counties. In our experience the Second District has applied the open-and-obvious doctrine strictly, and local trial judges follow that lead. The decision is still persuasive authority, and its reasoning about the real hazard, foreseeable distractions, and attendant circumstances is sound, but a store fall in Dayton has to be built with that tougher audience in mind.

Comparative fault is not a reason to give up

Insurers often tell injured shoppers that because they "weren't looking," they have no case. Ohio's comparative-fault statute, R.C. 2315.33, says otherwise: a person who was partly at fault still recovers as long as his share of the fault is not greater than the combined fault of everyone else, with the award reduced by his percentage. A shopper found twenty percent at fault for carrying a box still collects eighty percent of his damages. For an injury that requires surgery and keeps someone off work for months, that is a significant claim.

What this means for you

If you were hurt in a store, the store's insurer will try to resolve your claim on paper by calling the hazard obvious. Cases like Mulcahy are won on the details: the exact height, color, and location of the hazard; the store's own surveillance photographs, which were central in this case; the layout of the aisle; and what customers were expected to be doing in that spot. Those facts have to be captured quickly, before the display is moved and the video is overwritten. Our premises liability practice handles that investigation on every store and restaurant fall, and our personal injury page explains how we value serious orthopedic injuries.