Defense Digest

In the recent Superior Court decision of Campisi v. Acme Markets Inc.,, 2006 Pa.Super. 368 , 915 A.2d 117 (2006), the court upheld a Judgment Notwithstanding the Verdict against a store customer based on an open and obvious danger posed by a disabled store employee.

The appellant, Theresa Campisi, was shopping at an Acme Market when she tripped and fell over a blind store employee's guide cane. Campisi was proceeding up a grocery store aisle, while at the same time in an adjacent aisle, the blind store employee was proceeding in the same direction. When Campisi reached the end of her aisle, she tripped and fell over the blind employee's guide cane as she rounded the corner.

Campisi brought suit on the theory that Acme had a duty to warn her of the dangers presented by a blind store employee. A jury found in Campisi's favor, and she was awarded $100,000, with an additional $15,000 awarded to her husband for a loss of consortium claim. Acme filed a motion for JNOV, which was granted.

Campisi appealed, arguing that store employees who used canes and walkers were "harmful conditions" that required the store to warn. The issue on appeal was whether Acme owed a duty to warn its customers of the risks posed by a disabled, full-time employee traversing its premises.

The court considered well-established principles provided by the Restatement to determine what duty Campisi was owed. Ultimately, as a business invitee, Campisi was owed the highest duty. Acme was obligated to protect Campisi not only against all known dangers on the property, but also any dangers that Acme might have discovered with reasonable care.

Campisi argued that the blind store employee using a guide cane was a danger that Acme should have warned her of and Acme customers could not take precautions against such a danger in the absence of a warning. Campisi suggested that Acme should have posted signs indicating the presence of blind employees. Taking Campisi's argument to its logical end, Acme would also need to warn of any person whose handicap required mechanical assistance. The court rejected Campisi's argument as an attempt to shift away attention from her own failure to live up to her responsibilities as an invitee, including her obligation to look for any obstacles in a blind spot and regard where she was walking.

While Acme owed Campisi the highest duty of care, there was no duty owed to Campisi if she knew: (1) the actual conditions at Acme; (2) the activities carried on at Acme; and (3) the dangers involved in either. The location of Campisi's incident, at the end of a grocery store aisle, was of the utmost importance.

The court highlighted the fact that grocery stores such as Acme are filled with shelves stacked high with merchandise. When traversing the aisles of a grocery store, an invitee knows, or should know, that the high shelves and merchandise create blind spots at the end of an aisle. A customer has an obligation to keep on the lookout for dangers presented when exiting such an aisle, such as a sudden cart that juts out, a foot, or someone's cane. In Campisi's situation, her rounding the aisle and proceeding toward the end of the adjacent aisle magnified this danger. The court found that Campisi's duty of care as a customer included looking for any obstacles present at the end of the grocery store aisle.

Campisi claimed that the distracting nature of the displays at the end of the aisle was to blame for her failure to observe the floor as she turned the aisle corner. She claimed that the presence of merchandise at the end of aisles was to get her attention and that was why she did not see the blind employee rounding the corner. The court pointed out that drivers are not relieved of responsibility when distracted by billboards, and Campisi could not be relieved of her duty to watch where she was walking, even if she was distracted by a store display meant to get her attention.

Outside of the obviousness of the hazards posed by the end-of-aisle blind spots, a reasonable person should know that handicapped persons may be present in grocery stores, both as customers and employees. Campisi, therefore, should have been aware that she may encounter a person ambulating with a cane or other assistive device in the grocery store and taken action to avoid any possible harm.

Though Acme owed her the highest duty and the blind employee may have increased her risk of an accident, Campisi also had a duty to behave as a reasonable customer and avoid any known and obvious dangers at the end of the grocery store aisles.

Campisi's effect may be two-fold, in that: (1) invitees must take care to regard blind spots and other hazards imposed by the supermarket aisles; and (2) handicapped individuals who use devices such as canes, wheelchairs, etc., are unlikely to be deemed a "harmful condition" that require a warning to business invitees. Campisi's holding should be a relief to both retailers and disabled individuals alike.

* Howard is a shareholder and chair of the firm's Retail Liability Practice Group. He works in our Philadelphia, Pennsylvania, office and can be reached at (215) 575-2664 or hpdwoskin@mdwcg.com. Sarah is an associate in our Philadelphia, Pennsylvania, office who can be reached at (215) 575-2757 or seholmes@mdwcg.com.