Yesterday Alluring Allison drove her brand new 2011 BMW to Wally World. Wanting to avoid that first door ding, Allie parked her beloved Beamer away from the other cars. Little did she know that Robby Redneck was loading up his pickup truck just up the hill from her. After unloading all of his shopping carts Robby drove away without returning them to the cart corrals conveniently located in the parking lot. Sure enough, a gust of the wind sent two carts careening down the hill into Allie’s Beamer. Does Allie have a claim against Robby or Wally World and its errant shopping carts?
If she can find him, Allie has a claim against Robby for negligence. Although possible, Allie’s claim against Wally World is less certain. Underlying both claims is the legal concept of negligence. The general question is did either Robby or Wally World owe a duty to other shoppers like Allie to guard against the damage likely to result from a runaway shopping cart? When cart corrals are stationed in the parking areas, it is reasonable to conclude that all shoppers like Robby have a responsibility to leave their carts where they will not damage other cars. On a windy day, shoppers can expect that unattended carts will be a hazard if not placed in the corrals.
Wally World undoubtedly placed the cart corrals in the lot to avoid that very risk. Moreover, Wally World hired employees to round up loose carts and return them to the building for arriving shoppers. Finding Wally World, or any other retail owner, liable for a claim on their premises requires more than mere negligence. Allie must be an “invitee” to the parking lot, i.e., a shopper. And, Wally World must have some “knowledge” of the problem, probably more than knowing it is a busy shopping day and the wind is blowing hard. Nevertheless, if those circumstances are such that a judge or jury could conclude that they posed “an unreasonable risk of harm” that Wally World (through its supervisors and employees) knew or should have known about and should have protected Allie from but failed to do so, then Wally World could be found liable for Allie’s damages.
Tilting the Scales in Your Favor. There is probably a good reason why there are no Texas cases on these facts. Finding Robby and proving that it was his un-corralled shopping carts that hit Allie’s Beamer is likely to be difficult and time consuming. Moreover, convincing a judge or jury that Wally World knew or should have known and failed properly to respond to the dangerous conditions that caused the personal damage claim would be very difficult. Finally, the most likely reason why there are no Texas cases on this subject is that the likely amount of personal property damages is pretty low. This kind of claim, if filed as a lawsuit, would likely be in Small Claims / Justice of the Peace Court.
In a retail shopping center, both the “legal” and the courteous conduct is to leave your shopping cart in the corral. If you are Wally World you might want to redouble your shopping cart attendants in the parking lot on a very busy and/or a windy March day to round up the strays faster. If you have a new Beamer, you might want to consider which way the March winds are blowing and whether you are parked uphill or down from the likely direction the wind and the carts might be blowing.