Trial Magazine

Alabama resident Henry Walker, 59, was shopping at a local Walmart store. As he reached to pick up a watermelon from a container display, his foot became lodged in the side opening of a pallet beneath the container. When he turned to walk away, he fell, breaking his left hip.

Walker was taken to the hospital, where he underwent open reduction internal fixation of the fracture, followed by physical therapy. He developed blood clots and spent time at an assisted living facility. His medical expenses totaled approximately $84,000.

He continues to suffer pain and a limited range of motion in his hip, and he now uses a walker. A retired U.S. Army veteran who played basketball three times a week before the incident, Walker now endures a sedentary lifestyle.

Walker sued the store, alleging that the pallet constituted a hidden hazard on the premises and that the store was negligent and reckless for failing to remove or modify the pallet or warn of its presence. The plaintiff argued that if the store failed to remove the pallet, it should have covered the open end with a guard so that a patron’s foot could not become trapped. He presented evidence that other grocery stores in the community use pallet guards to prevent such incidents. Although Walmart sells pallet guards on its website, a corporate representative testified at deposition that he had never heard of them.

Walker also presented video footage from the store’s surveillance camera covering the three hours leading up to his fall. The video allegedly showed other patrons placing their feet in the side opening of the pallet and one patron losing her shoe in the opening and nearly tripping. The plaintiff sought punitive damages based on wantonness, alleging that the store’s actions constituted reckless disregard for its customers’ safety.

The defendant argued that the pallets were open and obvious to customers and did not create an unreasonable risk of harm.

Alabama does not have a collateral source rule, and the jury heard evidence that the plaintiff would have to reimburse Medicare and a ­government-funded military health care program approximately $41,000 from any recovery.

The jury found the defendant 100 percent at fault and awarded $7.5 million, including $2.5 million in compensatory damages and $5 million in punitive damages. The defendant reportedly plans to appeal.

Citation: Walker v. Wal-Mart Stores Inc., No. CV-2015-000040.00 (Ala. Cir. Ct. Russell Cnty. Nov. 8, 2017).

Plaintiff counsel: AAJ member Charles A. Gower, Shaun O’Hara, Austin Gower, and David C. Rayfield, all of Columbus, Ga.

Plaintiff expert: Fred Graham, safety, Birmingham, Ala.