Defense Digest

An issue that frequently develops in retail premises liability actions concerns whether the plaintiff can be excused for failing to observe an open and obvious condition while shopping in the defendant's store because he or she was distracted by the defendant's sales displays. In this scenario, the plaintiff claims that he or she should be excused for failing to observe the condition because the defendant intends that its displays be "eye-catching" to its customers. This common sense argument places the retail defendant in the unenviable position of having to explain to the jury that, although it fully intends to have its promotional displays capture the immediate, undivided attention of its customers, the plaintiff should be punished for looking at what the defendant intends to be seen. A recent Pennsylvania Superior Court decision considers whether such a plaintiff can turn a blind eye to the open and obvious.

In the case of Campisi v. Acme Markets, Inc., 915 A.2d 117 (Pa. Super. 2006), Theresa Campisi sustained serious personal injuries after tripping and falling over a cane being used by a blind employee of the defendant. Ms. Campisi claimed that she could not see the cane as she walked around the corner of the aisle because she was distracted by the defendant's promotional displays. Ms. Campisi and her husband sued the defendant for negligence, and the jury found in their favor for $115,000. Following the jury's verdict, the trial court concluded that the defendant did not owe Ms. Campisi a duty to warn of a blind employee's use of a cane and granted the defendant's motion for judgment notwithstanding the verdict.

As there was no dispute over causation and/or damages, the two central issues raised on appeal concerned whether proprietors owe a duty to warn business invitees of foreseeable risks allegedly posed by disabled full-time employee, and/or whether the plaintiff can be excused for failing to observe an open and obvious condition due to being distracted by the proprietor's sales displays. With respect to the first issue, in claiming that such a duty exists, the plaintiffs argued that the constant presence of a full-time, blind employee presents a risk to customers who may not be aware that a sightless employee often walks through the store, and they suggested that customers cannot be expected, without sufficient warning, to take precautions against the dangers posed by the actions of such an employee. In rejecting the plaintiffs' argument, the Superior Court relied upon Restatement § 343A, which provides that no liability exists when the dangerous condition is known or obvious to the invitee unless the proprietor should anticipate the harm despite such knowledge. Citing Comment (e), the court stated:

If [the invitee] knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so. Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against danger which are known to the visitor, or so obvious to him that he may be expected to discover them.

In reaching its decision, the court found the location of the accident to be the most relevant consideration, because no duty exists if the invitee knows: (1) the actual conditions; (2) the activities carried on; and, (3) the dangers involved in either. Accordingly, the court found that a grocery store, with its aisles bordered by high shelves stacked with merchandise, naturally presents the danger of a large blind spot as customers exit an aisle. Whether the hazard is a shopping cart that suddenly juts out, a customer's foot, or someone's cane, customers must constantly be on alert for obstacles when exiting a grocery store aisle. The likelihood of danger further increases when a customer rounds the corner of an aisle directly toward the end of the adjacent aisle, as Ms. Campisi did in this accident. Thus, the court considered the customer's duty of ordinary care to include looking for obstacles before exiting an aisle.

The second aspect of the plaintiffs' appeal concerned whether Ms. Campisi's failure to observe the employee's cane could be excused because the defendant's promotional displays distracted her from looking at the floor as she waked down the aisle. In explicitly rejecting the plaintiffs' argument, the Superior Court offered the following analogy, which will undoubtedly be quoted in countless defense briefs to come, ". . . just as drivers are not relieved of responsibility for accidents if they are distracted by billboards, customers are not relieved of the responsibility of watching for obstacles while they walk, even if they are distracted by sales displays." Hence, even if employment of the blind increases the risk of an accident, such a risk does not overcome a customer's responsibility to avoid the known and obvious dangers present upon exiting a grocery store aisle regardless of whether the customer claims to be distracted by promotional displays at the time of the accident.

In practice, when it is anticipated that the plaintiff will argue that he or she was distracted by sales displays, the retail defendant should consider filing a motion in limine citing the Superior Court's decision in Campisi. As the decision is not explicitly limited to the facts of the Campisi case, it can be used effectively in a diverse spectrum of premises liability matters, regardless of the nature of the hazard or defect. In doing so, the jury's attention will remain focused on the plaintiff's conduct, as opposed to the defendant's promotional displays.

*Dan is a shareholder in the firm's Casualty Department. He works in our Philadelphia, Pennsylvania, office and can be reached at (215) 575-2793 or ddkrebbs@mdwcg.com.