The Incident

The incident that gave rise to this case occurred in a large warehouse-style hardware store which is part of a national chain. In September of 2000, 32 year-old John Jacobs was shopping in the store to obtain supplies for his employer. Mr. Jacobs was Head of Maintenance for a large non-profit organization. On both sides of the isle in which Mr. Jacobs was shopping, were 12-foot high shelves filled with goods, including on the top shelf. The shelves were 3-feet wide and held merchandise two rows deep, each row serving the aisle it was facing. On the top shelf were boxes of shop vacs. Store stacking policy required the merchandise to be 3 inches from the edge, but on this occasion, the boxes were stacked right up to the edge. There were no barriers in front of the merchandise on the top shelf. Unbeknownst to Mr. Jacobs – an employee of the store in the aisle on the other side of the one where Mr. Jacobs was shopping, was using a fork lift to take a shop vac box down from the top shelf. The employee bumped another box containing a shop vac weighing 26 ½ pounds, off the shelf. Mr. Jacobs did not see the shop vac coming. A store employee who was next to him, yelled “look out,” but before Mr. Jacobs could move, the shop vac struck him on the side of the head above the left ear. Mr. Jacobs was knocked unconscious for approximately one minute. An ambulance was called, and he was placed on a stretcher and taken to the hospital, where he was treated and released with concussion precautions.

The Plaintiff’s Case

A. Liability

The store put customers at risk because the store stocked too much merchandise too high and too densely, because that enabled the store to maximize the amount of products it could display, which enhances the store’s profitability. Profit and convenience – not customer safety – was the store’s first priority. It was obviously dangerous to stack heavy merchandise in such a way that they were close to the edge and able to fall off with no barriers to prevent them from falling off when an employee was placing or removing products from the top shelf, as happened in this case. The employee should have exercised more care in moving heavy boxes around the top shelf. He should have been better trained by the store.

Plaintiff will present an expert witness who will testify that defendant’s merchandising practices were unsound and unsafe.

B. Damages

After he was struck on the head, Mr. Jacobs returned to work after only one day, but soon developed daily intense headaches, which to this day – 3 ½ years later, have not gone away. Mr. Jacobs, who has always been a hard worker, did not take any time off from work, nor did he receive any medical advice to take time off. Mr. Jacobs also noticed that his memory – always excellent – became a problem, and his ability to keep track of what he had to do was noticeably diminished. His supervisor will testify that whereas she used to give him the day’s task in the morning and know they would get done, now she must give him just one job at a time. She said that 2 employees who work under Mr. Jacobs have taken up the slack by doing jobs he used to routinely do. Nevertheless, Mr. Jacobs has not been penalized, nor has he been deprived of his cost of living adjustment. He even received his share of a small merit increase that the was given to whole maintenance department. Mr. Jacobs has held his job for 17 years. His supervisor will testify that the department is small and like family, and that they will not punish Mr. Jacobs for his difficulties. She will testify that if there were any opportunity for Mr. Jacobs to advance in the organization, he would have been a strong candidate before his injury, but not now. Mrs. Jacobs will testify that Mr. Jacobs is often very forgetful, becomes irritable and depressed more than before, and that she has to constantly remind him to do child care responsibilities for their 7 and 9 year old children, that he had always done automatically.

Plaintiff will produce three expert witnesses on damages: (1) a Neuropsychologist; (2) a Vocational Expert; and (3) an Economist. The Neuropsychologist conducted extensive neuropsychological testing on Mr. Jacobs and will testify that he has intellectual deficits and memory impairment that are consistent with brain injury caused by the blow received from the shop vac, and that it is his opinion that the blow caused these problems, which will be permanent. The Neuropsychologist will explain the mechanics of brain trauma and will testify that serious brain injury can occur without external injury and even with normal scans of the brain. The Neuropsychologist is working with Mr. Jacobs to help him devise strategies to do the best he can with the deficits he received. The Vocational Expert will testify that absent the neuropsychological deficits from the shop vac blow, Mr. Jacobs would have been an excellent candidate for going back to school and obtaining a job as a Facilities Manager in a mid to large-sized organization. Facilities Manager jobs pay between $45,000 to as much as $55,000 per year. Based on the Neuropsychologist’s testimony as to Mr. Jacobs neurological deficits, the Vocational Expert will testify that Mr. Jacobs is now stuck in his present job, which pays him $32,000 per year, and that were he to lose that job and be forced to try to find another similar job outside of the protection of his small department, he would be unlikely to be hired because of his memory problems. The economist will testify that based on Mr. Jacobs expected work life of another 36 years, Mr. Jacob’s lost earning capacity (which is different than actual lost wages), will be in a range of between approximately $468,000 - $828,000, which when reduced to present value will be between approximately $81,000 - $143,000 (i.e., Mr. Jacobs would need to invest $81,000 today to end up with $468,000 in 36 years). The jury should assume that Mr. Jacobs will live a statistically average life span – another 46 years.

The Defendant’s Case

A. Liability

Defendant will produce an expert who will testify that the store’s practice of stacking merchandise on the top shelf without barriers, is common within the industry. Defendant will testify that its employees were properly trained, and that the employee who knocked the box over, was following proper procedures at the time. The defendant states that the incident was simply an unfortunate accident that was neither the store’s nor the employee’s fault.

B. Damages

Defendant will argue that there is no reliable evidence that Mr. Jacobs suffered any lasting injury. He did not receive a fractured skull. His loss of consciousness was momentary. He did not even stay in the hospital for a single night and he returned promptly to work. Defendant will say that even assuming Mr. Jacobs experiences the headaches he testifies to, they may be caused by any number of factors, such as stress or depression, unrelated to any head injury. The defendant will note that Mr. Jacobs claim of future lost earnings is completely speculative and not supported by the evidence, since Mr. Jacobs has stayed at the same job for 17 years, and has received cost of living and even a merit pay raise, since the accident. The defendant will argue that there have been no observeable changes in Mr. Jacob’s life since the accident.

Defendant will produce one expert on damages – a Ph.D. Neuropsychologist. The defendant’s Neuropsychologist will testify that while Neuropsychological testing is helpful in determining what type of learning styles, strengths, and difficulties an individual has, that it is not reliable in determining the cause of neurological problems. Defendant’s Neuropsychologist will state that the plaintiff’s Neuropsychologist’s conclusion from his testing, that Mr. Jacob’s deficits were caused by the shop vac blow, are subjective and unreliable.

The Judge’s Charge to the Jury

A. Liability

The judge will instruct the jury as follows:

If the store was negligent in its stacking practices and the store’s negligence caused injury to Mr. Jacob, then they must find the defendant liable. The store is vicariously liable for any negligence of its employees. If the jury finds that any employee of the store was negligent in a way that contributed to injury to Mr. Jacobs, then they must find the defendant liable.

B. Damages

If the jury finds the defendant liable, then they must consider damages. The amount of damages, if any, is entirely up to the jury. Neither the judge nor the attorneys can suggest any amount. If the jury decides to award damages to Mr. Jacobs, then they should consider (1) any lost wages; (2) any lost earning capacity; (3) any physical or emotional pain and suffering.

If the jury finds the defendant liable, then the jury may, but does not have to, award a sum of money to Mrs. Jacobs to compensate her for any diminution in her relationship with her husband.