Many retailers provide motorized mobility devices for use by customers who suffer from mobility impairments. And with the growing senior citizen population, the use of these motorized carts in retail stores is likely to increase. While these motorized devices are a beneficial – if not necessary – courtesy for customers, they may expose businesses to potential liability in the rare circumstance when a motorized cart driver causes injury to another customer. While authority in Kentucky and Indiana on this issue is sparse, the Ohio Supreme Court recently clarified the liability of retail stores for injuries caused by motorized cart collisions in Rieger v. Giant Eagle, Inc., 2019-Ohio-3745, finding Giant Eagle was not liable for injury to one of its customers caused by another customer driving a motorized cart.
In Rieger v. Giant Eagle, Inc., Barbara Rieger, a Giant Eagle patron, filed suit against the grocery retailer after she was injured by a motorized cart operated by another customer, Ruth Kurka. While Rieger settled her claims against Kurka, Rieger’s claims against Giant Eagle proceeded to trial. At trial, Rieger sought to prove that Giant Eagle was liable for both negligence and negligent entrustment. She presented evidence that Kurka had been diagnosed with dementia prior to the incident and never received training on how to operate Giant Eagle’s motorized carts. She also presented evidence that there were no operational instructions or warnings on the motorized carts, that Giant Eagle just assumes that individuals who use the carts know how to operate them, and that 117 incidents involving motorized carts occurred at Giant Eagle stores between 2004 and 2012. The jury found Giant Eagle liable for negligence and negligent entrustment and awarded Rieger $112,500 in compensatory damages and $1,198,000 in punitive damages. Giant Eagle appealed.
After the Eighth District Court of Appeals affirmed the jury’s finding of negligence and negligent entrustment, Giant Eagle appealed to the Ohio Supreme Court. Giant Eagle argued, in pertinent part, that the standard of negligence imposed by the trial court amounted to strict liability because it eliminated the need to prove that the store’s negligence caused the accident. Giant Eagle also argued that basing liability on the previous 117 dissimilar motorized cart incidents at other Giant Eagle locations rendered Giant Eagle an insurer for such accidents. Rieger argued that Giant Eagle should have taken steps to protect her from the negligence of other patrons using the motorized carts.
Ultimately, the Ohio Supreme Court found that Rieger failed to present any evidence at trial to establish causation, i.e. to show that had Giant Eagle properly instructed Kurka on how to operate the motorized cart, the accident would have never happened. Rieger also failed to present any evidence that the cause of the prior 117 accidents was due to motorized-cart drivers’ lack of training or instruction. Because there was no evidence that Giant Eagle’s lack of instruction and training caused the accident, Giant Eagle could not be liable for negligence as a matter of law.
The Supreme Court also held that Rieger failed to establish the essential elements of a negligent entrustment claim. To establish a claim of negligent entrustment of a motorized vehicle, Rieger had to present evidence that the motorized cart was operated with permission of Giant Eagle, that Kurka was incompetent to drive the motorized cart, that Giant Eagle knew that Kurka was incompetent to drive the motorized cart, and that the entrustment caused Rieger’s injury. Even though Kurka had been diagnosed with dementia prior to the accident, there was no evidence that her dementia rendered her incompetent to operate the motorized cart, that Giant Eagle knew about Kurka’s dementia, or that the dementia was a contributing factor to the accident. In the absence of such evidence, the Court held that Rieger could not prove negligent entrustment as a matter of law. Consequently, the Ohio Supreme Court reversed the Eighth District and entered judgment in favor of Giant Eagle on both claims.
In an earlier similar case, Ohio’s Second District Court of Appeals reached the same conclusion. In Johnson v. Wal-Mart Stores East, L.P., 2014-Ohio-2998, the Second District held that Wal-Mart had no duty to warn its customers of the danger of motorized cart collisions. A customer using a motorized cart collided at an intersection in the store with another customer who fractured her ankle as a result. Neither customer could see the other coming into the intersection because their view was blocked by a six-foot high display. The injured customer argued that Wal-Mart owed its customers a duty to warn motorized-cart users of the dangers inherent in their use, and to warn other customers in the store of the danger presented by the use of motorized carts. The court, however, held that Wal-Mart owed neither duty to its customers.
First, the court reasoned that even though neither customer could see the other entering the intersection, blind intersections in stores are common occurrences. Both customers knew they could not see whether someone else was entering the intersection at the same time. Consequently, the court found that the danger of a collision or near-collision in a blind-intersection in the store was not a hidden-danger, since both customers knew there was some risk that someone else could be entering the intersection at the same time. Even more, the injured customer knew that Wal-Mart provided motorized carts for its customers’ use, so she knew there was a risk that someone with a motorized cart could enter the intersection at the same time.
The injured customer also argued that Wal-Mart had a duty to instruct customers on the proper use and operation of motorized carts. However, the Court declined to impose this duty on Wal-Mart when there was no evidence that a lack of instruction or improper use caused the collision. While running into another customer could be considered an improper use of a motorized cart, no cart-user would need to be instructed that he or she should not run into other customers with a motorized cart. Any reasonable customer would know not to run into other customers without having to be instructed so.
And finally, the injured customer argued that the trial court should have allowed the issue of causation to go to the jury. But the court disagreed, explaining that an issue of fact should go to the jury only when there is some evidence of the fact. Because the injured customer presented no evidence that any failure on Wal-Mart’s part to instruct customers on the use of motorized carts caused the collision, dismissing the action on summary judgment was appropriate.
A common dispositive issue in both the Rieger and Johnson cases is that the plaintiffs failed to produce sufficient evidence that had the stores instructed patrons on how to use motorized carts, the collisions would not have occurred. Because causation is an essential element of both negligence and negligent entrustment, a plaintiff cannot prevail without proving that a store’s alleged negligence caused the accident. A more problematic situation could arise where a plaintiff can show that a collision was caused by the motorized-cart driver’s lack of instruction on how to operate the motorized cart. But the Second District in Johnson appeared to find that the injured patron more properly bore the risk of potential motorized-cart collisions. Indeed, the court considered that the injured patron should have been aware of the risk of a collision when she knew that the store offered motorized carts to its customers. The Second District essentially equated this fact, along with the fact that blind intersections are common occurrences in stores, with the “open and obvious” doctrine. Under the open and obvious doctrine, a premises-owner owes no duty to visitors regarding dangers that are “open and obvious.” While there is little law in Ohio, Kentucky, and Indiana on this issue, other states, such as Georgia and Virginia, have obviated retailers of a duty to ensure that patrons know how to use motorized carts or are competent to drive motorized carts. As such, there remains a possibility that even if a plaintiff can prove causation, a court could still find that there is no duty to protect patrons from motorized-cart collisions in the first place.
Another problematic issue may arise under a claim for negligent entrustment as to the extent to which retailers need to investigate whether their patrons are incompetent to operate a motorized cart. As discussed above, a plaintiff must present evidence of the motorized-cart driver’s incompetence and of the retailer’s knowledge of the driver’s incompetence. Because interrogating customers about their disabilities, especially mental disabilities, is prohibited by the Americans with Disabilities Act (ADA), it is unlikely that a retailer would or even should have knowledge of a patron’s incompetence. The ADA also requires that retail establishments allow disabled customers to access their store with motorized wheelchairs and other similar devices, such as motorized scooters. As such, it would likely be a rare factual circumstance for a retailer to be held liable based on a theory of negligent entrustment.
While the Ohio Supreme Court recently took a step towards limiting the liability of retailers for injuries caused by motorized carts, the “right” facts could still give rise to liability. If you have questions regarding the use of motorized carts in your establishment, please contact any member of our Retail, Hospitality, and Entertainment Facilities Practice Group.