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Article: Shopping Carts and the Theory of Premise Liability

Who’s Responsible?

There has been a long-running misconception by the general public that retailers are liable for any unwanted incident that occurs on a retailer’s property. From slips and trips to robberies and assaults, daily lawsuits are filed against retailers by victims seeking financial justice to right a perceived wrong. Deciphering when a retailer is at fault can be a bit tricky because what is used to make the determination is called the Theory of Premise Liability.

The theory of premise liability states that property owners are responsible to protect guests, or invitees, from injuries or accidents that occur on their property. It is this very definition that causes confusion among the general public. Although property owners are responsible to protect guests, this does not mean they have to do everything possible to protect guests from every possible risk of harm. Generally, as long as property owners take reasonable steps to ensure the safety of their guests, they can avoid being found liable. However, it is the word ‘reasonable’ that makes premise liability tricky to determine with any degree of certainty.

Courts generally use case law, or “common law”, to determine judgment outcomes. This is because state and local laws, building codes, and other factors may be relevant in each particular case. However, courts generally consider two main factors – the property owners’ knowledge of any condition, and the feasibility of rectifying the condition – when determining liability. These two factors are extremely important for retailers to consider when strategizing how to avoid liability.

The Runaways

Consider damages caused by shopping carts, for example. Nearly every shopper has had a run-in with a rogue shopping cart. Although retailers send employees out to the parking lots to retrieve shopping carts throughout the day, it doesn’t stop unattended shopping carts from sailing across windy parking lots causing injury to customers and damage to vehicles. But are retailers liable to pay for such injuries and damages? Based upon the two main aforementioned factors used in part to determine liability, it depends.

In a highly publicized case against Sam’s Club, a customer’s vehicle was damaged when a runaway shopping cart slammed into her fender. The customer notified management, who completed a report. Sometime later the customer received a letter stating that since an unidentified customer left the shopping cart in the lot on a windy day, Sam’s Club would not take responsibility for the damage. However, what was a little unique in this case was the fact that an employee was in the parking lot at the time of the incident attempting to collect all of the shopping carts, but lost control of a few before they slammed into the customer’s vehicle. Upset about the claim denial, the customer took to social media and the story was picked up by a news source. Sam’s eventually paid the damage, but not before incurring some public embarrassment. In this instance, a court may likely have found Sam’s liable because it is clear they knew of the condition, thereby making the incident “foreseeable.” This is why Sam’s management had sent the employee out to retrieve the shopping carts in the first place.

More Issues. More Costs.

There are other costs associated with shopping cart retrieval and how efficiently they are collected from parking lots. Consider employee injuries. Manual shopping cart retrieval comes with risks of musculoskeletal injuries. The Occupational Safety and Health Administration (OSHA) acknowledges “there are ergonomic risk factors associated with cart retrieval.” Without the help of an automated cart pushing machine, employees are forced to use great force to push, pull and wrestle with a daisy-chain of shopping carts as they try to replenish the cart supply for incoming customers. Sprained wrists and back injuries are extremely common, especially for those assigned to cart retrieval duties regularly. Are retailers doing all they can to prevent such injuries? Do retailers really understand the magnitude of risk associated with manual cart retrieval?

OSHA regulations (Title 8, Section 3203) require employers to identify and correct job hazards, such as those associated with manual cart retrieval, as well as provide training through the Injury and Illness Prevention Program (IIPP). With the duty of employers to mitigate the risks of employee injury coupled with the push from retailers to reduce labor and maximize existing labor allocation, perhaps more can be done. By having a comprehensive cart retrieval program, retailers make themselves more defensible, meaning they could show they are taking reasonable steps to ensure shopping carts are not running rampant through their parking lots, and those employee injuries are minimized. This level of ‘reasonableness’ would likely satisfy the elements posed by the Theory or Premise Liability.

The Solution

Gatekeeper Systems’ shopping cart retrieval solution helps retailers achieve all of these objectives. The CartManager XD+™ is a shopping cart pusher that makes the cart retrieval process more efficient and safe. CartManager XD+ employs state-of-the-art RF technology to adeptly push nested shopping carts safely back to a cart corral where they can be readily available for customer use. Using the remote control unit, only one employee is needed to retrieve up to 25 carts at a time. CartManager XD+™ is powered by two rechargeable, marine-grade batteries that enable almost endless usage of this cart retrieval system. In the field, a CartManager is referred to by many different names including shopping cart pusher, mule, cart mover, cart puller, cart retriever, trolley mule, or shopping cart collector, and is ideal for large parking areas, large fleets and extreme climates, especially heat.

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