BIG BOX RETAILERS CAN BE SUED IN FAILURE TO WARN LITIGATION

Goldhaber Research Associates • Apr 02, 2019

In a typical failure to warn claim, plaintiffs' attorneys go after a product's manufacturer, usually claiming some kind of product defect that rendered the product hazardous to consumers and that the manufacturer failed to warn consumers of the dangers associated with the product. Defendants' attorneys usually counter that the product is not hazardous (or that the hazard is open and obvious) and, therefore, any warning they provided (or failed to provide) was either adequate or unnecessary. Plaintiffs' lawyers who only sue the manufacturer may be missing an important target in their litigation: the big box retailer who actually sells the product to the ultimate consumer of the product. The theory behind my proposition is that large retailers are basically in the real estate business. Instead of selling buildings, they are selling (or renting) shelf space, the availability of which is limited, for obvious reasons. So, just like a potential home buyer or renter must narrow their choices down from possibly several attractive housing choices, so does a large retailer have to choose among potentially hundreds (or more) of available products to put on their shelves. How do they do this?

If an actress wants a role in a Broadway play, they must audition for the part, usually in front of producers, directors, casting directors, writers, etc. who look for certain characteristics or traits in the actress to help them make their decision. Such is also the case when a manufacturer wants to convince a large retailer (e.g., Home Depot, Best Buy, Walmart's, Bed Bath and Beyond, or even Amazon...who has digital shelves) to put their product(s) on their shelves. The manufacturer basically auditions for the retailer's space by trying to convince decision makers for the retailer that their product meets the criteria set by the retailer and made available to the manufacturer typically in a guide book that contains lists of such criteria (e.g., profitability, availability, speed of delivery, product safety and product packaging requirements, among others). Some retailers even have separate product safety guidebooks and even employ their own staff who decide about safety issues, including what warnings are adequate as to their content, visibility and location.

Some large retailers may initially try to use "the dropped shoulder technique" as their defense: "Don't blame me, it's the manufacturer's responsibility to provide adequate warnings; we just pass on their warnings." If you're a plaintiff's lawyer, don't buy into that defense. Perhaps a couple examples may help.

In one case, I was working for a plaintiff's lawyer in Houston who sued the manufacturer of a work light that reached extremely high temperatures when used as intended, and in this case, the use was to illuminate the interior of a ship's hull while the plaintiff was sandblasting to remove rust from the hull. Shortly after the light was turned on inside the hull, the heat from the light ignited combustible fumes found in the interior, killing one worker and severely injuring another. The manufacturer of the light, in my opinion, had virtually no conspicuous warning to alert consumers of the very real danger of the light reaching temperatures approaching 1200 degrees F. The retailer, one of the nation's largest home products' big box retailers, at first claimed they just passed on the manufacturer's warnings. However, during discovery which included document production and deposition testimony, it became readily apparent that the retailer had not only a manufacturer's handbook containing many paragraphs describing their expectation that the manufacturer must follow all product standards and regulations relating to warnings and packaging, but also must meet the retailer's own standards (outlined in detail in a separate safety guide they made available to all auditioning manufacturers, which even included graphics appropriate for any warnings....all devised by their own full-time safety employees. Their goose was cooked when I testified that this retailer was actually "in the warnings business" and could prevent a product from reaching their shelves which didn't meet their standards. Ironically, a few years later in a separate case involving a different product, a ladder, sold by the same retailer, the retailer tried the same dropped shoulder defense, and even produced a ladder expert from their company who denied knowledge of such guidebooks or safety experts within the company. It may be that this ladder expert was being truthful in her ignorance rather than deceptive. I call this a case of "the left side didn't know what the right side was doing." Nevertheless, their goose was also cooked when I produced the documentary evidence.

Finally, even large digital retailers are vulnerable to claims of failure to warn about hazards found in products they sell on their digital shelves. Such was the case when a plaintiff purchased a dangerous pet that required a metal cage to avoid having the pet get loose and cause potential damage not only to home furnishings but also to humans. When the plaintiff conducted a search within the digital retailer's website for a cage to house this pet, a mesh cage appeared as one possible (and inexpensive) option. The plaintiff bought this product, resulting in the pet easily chewing through the mesh and seriously injuring the plaintiff's infant. There were no warnings on the digital retailer's website about this very hazardous possibility, and immediately after the lawsuit was filed, the retailer attempted to pull the product by deleting it from being listed as appropriate for this particular pet...but not before my client, the plaintiff's attorney, had procured a screen shot of the product listed for sale on the digital retailer's "shelf." Their goose was also cooked, and, no, the pet was not a goose.

The lesson both for big box retailers and their attorneys, as well as for eager plaintiffs' lawyers looking to add defendants to their lawsuits is quite simple. The retailer may indeed be a ripe target in a failure to warn claim, and should pay attention to the adequacy of the manufacturers' warnings BEFORE renting or selling their valuable shelf space to them. It's not just about the profitability of the product. More importantly, it's about the safety of the consumer.

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