trial practice in state and federal courts, trying more than 100 jury
trials to verdict in more than 25 counties across the state of Alabama.
He has devoted a large part of his practice to the representation
of major restaurant and retail corporations in defense of premises
liability, product liability, automobile and trucking accidents, as well as
employment practices liability actions.
Financial Center, Suite 1800
505 North 20th Street
Birmingham, Alabama 35203
205.795.6588 Phone
205.328.7234 Fax
rdnorris@csattorneys.com
www.csattorneys.com
not a frequent shopper, I have recently
noticed what seems to be a greater effort
on the part of retail stores to get more
merchandise in front of the potential
buyer. This observation is supported in
an April 7, 2011, New York Times article:
"Stuff Piled in the Aisle? It's There to
Get You to Spend More," which details
our love for stuff. The article indicates
that after years of shedding inven-
tory, retailers have shifted directions
and are redesigning their stores to add
more inventory. The article cites major
retailers' efforts to raise shelf height,
turn empty walls into additional areas
for merchandise storage, add lanes and
bring in bigger items tactics calculated
to increase the number of items for sale.
Marketing research supports the theory
"the messier the store, the better deal it
projects to the customer." Retail market-
ing consultants say research indicates
that "messiness, or pallets in the middle
Organization and simplification alter the
shopper's perception of the best environ-
ment and opportunity to snag a bargain.
In essence, the greater the mess, the
bigger the bargain.
For the Premises Liability defense
practitioner, messiness and clutter create
particular problems with increased risk
of danger created by falling merchan-
dise, as well as trip, slip and fall hazards.
When defending any type of Premises
action, particularly cases involving store
clutter, the defense of open and obvious
condition should always be considered
as a potential bar or limitation on the
claimant's recovery. The open and obvi-
ous doctrine holds that a premises owner
is not required to protect an invitee from
open and obvious dangers. Common open
and obvious hazards include holes, boxes
and spilled liquids.
Several years ago I had the privilege
of representing a major retailer in a case
messy condition of the store where she
fell. In this case, the claimant attempted
to push her shopping cart down an aisle
filled with boxes of holiday decorations
eventually falling over two cases of mer-
chandise. Plaintiff testified that she did
not see the cases even though by her own
testimony they were at least knee high.
She argued that the focus of her attention
was merchandise on the shelf, not boxes
in the aisle of the floor. Suit was filed al-
leging that the store failed to maintain its
premises in a safe condition. We argued
that the boxes were an open and obvi-
ous condition and that as such, the store
had no duty to eliminate the condition or
warn of its presence. Although the jury
returned a verdict in the plaintiff's favor,
the Alabama Supreme Court reversed
and rendered a judgment in favor of the
retailer. The Court followed precedent
establishing that an objective standard
is used to assess whether a hazard is
open and obvious the question being
whether the danger should have been
observed, not whether it was consciously
appreciated.
Understanding the Defense of
Open and Obvious Conditions