Shopper struck by falling merchandise: Failure to limit height of stacks: Neck, lower back injuries: Verdict: Punitive damages

Law Reporter, Feb 2001

Nguyen v. Toys 'R' Us-Texas, Inc., Tex., Harris County 334th Jud. Dist. Ct., No. 1999-18667, Nov. 15, 2000.

Nguyen, 50, was shopping with her husband and grandson at a toy store when she was struck on the head and back by two boxes that toppled from the overstock shelves overhead. The boxes had been 13 to 18 feet off the ground and were accidentally knocked down by two store employees. After suffering neck and lower back pain, Nguyen underwent a decompression and lumbar spinal fusion. She incurred medical expenses of $50,000. A part-time church nursery worker earning about $3,000 annually, Nguyen lost a year's income.

Nguyen and her husband sued the store and its parent companies, alleging that the store's failure to limit the height of the merchandise stacked on the overstock shelves or use barriers to secure the items constituted negligence and "malice" under Texas law. Plaintiffs charged that the store had violated its own policies and procedures concerning overstock shelving.

At trial, plaintiffs cited 316 prior similar incidents for the preceding three years at defendants' stores throughout the country. The court limited this evidence to incidents resulting in legal claims involving employee negligence.

The jury awarded plaintiffs $581,000. The award included $500,000 punitive damages.

Plaintiffs' experts were William WR Purcell, safety engineering, College Station, Tex.; Steven Hoerster, orthopedic surgery, Fredericksburg, Tex.; and Donald Huddle, economics, Houston, Tex.

Defendants' expert was Craig Ponder, orthopedic surgery, Houston, Tex.

Plaintiffs' Counsel

*Jason A. Gibson, Houston, Tex.

Comment. The court sanctioned defendants during the case for discovery abuse.

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