ABA Journal


Tort Law

Overstuffed Wal-Mart bag led to woman’s death, suit alleges

Sep 3, 2013, 11:30 am CDT


Wow, you really can't fix stupid.

By BobsYourUncle on 2013 09 03, 11:43 am CDT

It would stop some of the stupidity if every jurisdiction modified its "comparative fault" rules so that no party could recover against anyone whose degree of fault was less.

By B. McLeod on 2013 09 03, 12:26 pm CDT

Wow. Sounds like the work must really be drying up in Plattsmouth.

By Island Attorney on 2013 09 03, 1:10 pm CDT

This lawsuit isn't as stupid as it sounds. Grocery stores have increasingly become negligent about grocery bags under the false claim that they're environmentalists cutting back on plastics. The result is over thinner plastic bags and over stuffed paper bags. Many of these bags rip unexpectedly. Poor and elderly people often don't have the luxury of a car and end up losing their groceries walking home or carrying them on buses. It may sound silly but this is a scam by grocers that costs customers a lot of money. I just had a conversation about this at my Harmons grocery store because every time I buy groceries at least one or two of their paper bags rip when transferring them from the cart to my trunk. The clerk told me they get many complaints but the company insists the bags have been tested to carry 20lbs. Imagine 20 lbs. More than a sack of potatoes. Impossible. Clerks are also trained to over stuff and not waste extra bags. If there's an injury, they should be held as liable as any one else. Sue them.

By Santana on 2013 09 03, 1:27 pm CDT

screw all your knee jerk reactions. the woman died and it could have been prevented with reasonable measures. you people are so blinded by your love for the corporation that it's gotten in the way of common sense. Here's something to keep in mind: corporations don't love you or care for you, and they never will. Got it?

By a stupid trial lawyer hated by the Supreme Court on 2013 09 03, 4:21 pm CDT

Remember "proximate cause" from your 1L year? Death is not the foreseeable result of an overstuffed grocery bag. Plus, based on the grocery baggers I have seen, this is probably another instance where the company was pressured to hire some developmentally disadvantaged person to do this job. They should not be penalized for complying.

By B. McLeod on 2013 09 03, 4:39 pm CDT

Okay, WM's bags are probably inherently defective; I can get behind that. And I can see how dropping a 42 oz. can of anything on one's foot would break a toe. Where the chain of causation appears to break down is that the can gashed her foot, leading to an infection. Assuming the type of killer Staph or other infections that generally cause such resistant infections, there must have been some intervening causation.

By BMF on 2013 09 03, 4:41 pm CDT

Putting these comments together makes a compelling argument for using reusable cloth or fiber shopping bags. Most if not all stores offer them as a reasonable cost (around $1.00) and many offer a discount (5-6 cents) when using them so they can pay for themselves.

By NV Atty on 2013 09 03, 4:44 pm CDT

Question for B. Mcleod -- you actually practice law, or do you just go around quoting lessons from your first year of law school? Well, I actually practice law -- i.e., real lawsuits in real courts, believe it or not --, and very little to nothing that appeared in my law school classes as "doctrine" has much of an impact on my work. Do you know what a triable issue is? I'm guessing not, since from your comments it doesn't seem like you've ever tried a lawsuit, so I really don't think you should be commenting on the merits or demerits of filing a given case.

By another trial lawyer on 2013 09 03, 4:57 pm CDT

When I first read the headline, I thought it was a frivolous lawsuit, too. But then I read the article, and now I think the plaintiff has a case!

I have to agree with Santana that plastic bags have gotten LOT thinner and weaker since they were first introduced a little more than 20 years ago.

As for B. McLeod's comment, what exactly did the customer do wrong?

By emjaycee on 2013 09 03, 5:13 pm CDT


Sometimes bad things happen and no one has done anything wrong.

By OKBankLaw on 2013 09 03, 5:27 pm CDT

Yes, No. 9, of course I have tried cases. But, I do recognize that there is that school of thought (of which you seem to be a proponent) that plaintiff practice means filing whatever unresearched piece of crap you want and making the defense show what is wrong with it. Or, maybe you are billing by the hour, and so only care about those "triable issues" instead of whether you ever recover a dollar for the client.

By B. McLeod on 2013 09 03, 5:32 pm CDT

If we're going back to 1L law school, you might want to remember the thin skull doctrine. Death resulting from an injury doesn't have to be foreseeable in detail, only an injury needs to be foreseeable. All consequences occurring from the injury are presumed foreseeable as a matter of law if an injury was foreseeable. The infection resulting in death was put in motion by the foreseeable risk of injury. Case law makes it abundantly clear that even malpractice by a physician treating the injury is foreseeable as a matter of law and liability attaches to the original tort-feasor who caused the original injury even if her cause of death is malpractice at the hospital.

By Santana on 2013 09 03, 5:55 pm CDT

@ 13 makes sense; if injury - heavy object falling from breaking overstuffed bag and either injuring directly or becoming a tripping hazard - is foreseeable, isn't death?

The specific manner of death might not be reasonably foreseeable, but so long as injury (and thus possible death) were foreseeable, I don't think the specific mechanism in this instance was so unusual as to preclude foreseeability. It's not like the bag broke, she stopped to pick up items, and was hit by a meteor while doing so or the like.

By df on 2013 09 03, 7:33 pm CDT

@14-exaclty. A meteor is an intervening cause, or a robber grabbing the bag abruptly. But an infection is a natural consequence of almost any injury. Car accident victims in the hospital inevitably get pneumonia, staph infections, even mrca infections. There's no deduction in damages for the infections or for the additional medical care required. Every injury is vulnerable to infection as a natural consequence of injury.

By Santana on 2013 09 03, 7:56 pm CDT

@6 B.McLeod - FYI
@13 Santana - Thank you!
@14 df - Yes!

Death is a foreseeable result for violation of a rule, law, statute or regulatory provision that either is designed to protect a particular class of persons from their inability to protect themselves or establishes a duty to take precautions to guard a certain class of persons from a specific type of injury. Failure to do so establishes negligence per se. Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222 (Fla. Dist. Ct. App., 3d Dist. 1978).

Was the woman elderly? Disabled?

Also, remember that according to Article VI of the U.S. Constitution, treaties are "the supreme law of the land." Check the UN website for signed and ratified treaties of the United States.

BTW B.McLeod, your comment about a "developmentally disadvantaged person" is not on topic, and disparages the dignity of human life for everyone, including the disabled.

By negligence per se on 2013 09 03, 8:10 pm CDT

No. 9 here: B. Mcleod -- as I suspected, you have no friggin clue what you are talking about. I only do cases on contingency. If I don't win I don't get paid. No "billable hour" bs for me. If you can't see the merit to this case and keep getting bogged down in causation, it leads me to believe you've never set foot in a courtroom.

By another trial lawyer on 2013 09 03, 9:07 pm CDT

So you're saying you'd get a positive verdict from the jury without proving all the elements of the tort alleged?

While I'm not saying that's impossible, I'm assuming you're counting on the defendant to rather settle the case than pay for an appeal.

By OKBankLaw on 2013 09 03, 9:17 pm CDT

No wonder the public thinks ill of lawyers. Is nothing sacred? Can you say proximate cause?

By zekethewonderdog on 2013 09 03, 9:40 pm CDT

Well, No. 17, I don't concern myself overmuch with the perception deficits of the ambulance-chasing, TV-advertising crowd.

As for your complaint, No. 16, I'm just calling it as I see it. I'm pretty sure "developmentally disadvantaged" is the "appropriate" PC term, and If grocery stores are going to be expected to employ them as baggers, there is a limit to how much any "training" on saftey issues is ever going to accomplish.

By B. McLeod on 2013 09 04, 12:59 am CDT

Actually, in my experience, Wal-Mart bags are stronger and a little larger than most grocery bags. I like them because they make better trash can liners.

As to the other issue here I agree with McLeod. This is a "triable" issue only because Wal-Mart will settle and it will never go to trial.

The eggshell skull has its limits. For instance: I am a transplant patient and take drugs to suppress my immune system. A paper cut could lead to a deadly infection. Would a paper manufacturer be liable for failing to make the edges of its paper thick enough to prevent paper cuts?

By W.R.T. on 2013 09 04, 3:46 am CDT

I'm not sure the thin skull doctrine is limited in your example. The manufacturer would not be liable for your infection from paper cuts because the duty they owe of reasonable care has been satisfied. They manufactured the paper with reasonable care for it's intended purpose, which has not failed, and there is nothing they can do to produce paper that never causes paper cuts. It's the nature of paper to be sharp at the edges. They don't have to exercise extraordinary care to manufacture paper-cut-free paper.

But if the paper comes laced with an infectious agent from their filthy manufacturing plant, they are liable for not exercising reasonable care to prevent passing disease on their paper. if that infectious agent transfers into your blood through a paper cut and does more harm to you because of your immune suppression than it does me, the thin skull doctrine applies.

Reasonable care in manufacturing (and reasonable care in filling) grocery bags requires they be safe for their intended purpose. There would be no liability if someone suffocates on the bag because they can't manufacture suffocation-free bags. But they can with reasonable care manufacture bags that actually hold the amount of groceries that fit into the bag for its size and depth. The bigger the bag, the stronger they must make them because they're going to be stuffed with more stuff.

By mc on 2013 09 04, 6:04 am CDT

Of course, the customer is standing there, watching the bagger put this load all into one bag. If the baggers are the same as the baggers Wal-Mart hires here, she probably had a better chance of understanding what was an appropriate load than the bagger did. Yet, without asking for another bag, she picked this up, and left the store with it, also holding the bag over her foot, and with the bottom unsupported, so that if the bag broke, the groceries would fall on her foot. Comparative all over the place, No. 10.

By B. McLeod on 2013 09 04, 12:20 pm CDT

Sheesh. After reading these comments, I feel like I have just relived 1st year torts class....I can remember having the same discussion about forseeability and the limits of proximate cause.

By Wow on 2013 09 04, 1:59 pm CDT

From "The Graduate"
"Benjamin- One word."
"I know. "Plastics"."
"No, Benjamin, not "Plastics."
"Not "Plastics?" "Then what?"

By J.E. Fink on 2013 09 04, 2:54 pm CDT

Comment removed by moderator.

By defensive lawyer on 2013 09 04, 3:35 pm CDT

a good quality tote bag wouldve prevented this whole mess.

i own many tote bags.

links to specific makers are not permitted.

but there are some really cool ones out there. middle aged dudes need totes! good quality totes!

etsy is a place to look, but for the best in waxed canvas, only those from santa cruz will do...

By defensive lawyer on 2013 09 04, 8:53 pm CDT

YOU GUYS, Please stop plugging specific brands of tote bags. You shouldn't plug specific brands of tote bags on this site. It's as bad as using obscenities!


By B. McLeod on 2013 09 04, 11:36 pm CDT

Give me a break. There is no comparative negligence for not telling a service provider how to do his own job. A customer has every right to expect a bagger to know how to bag groceries, just as she has a right to expect a doctor to know how to practice medicine. (Differing levels of training and education, to be sure, but both are supposed to be competent in their respective fields.)

And you seem to imply that because the bottom of the bag was "unsupported", the customer was somehow comparatively negligent, as if the bags don't have handles and are INTENDED to be held by said handles!

And that's not even mentioning the product liability aspect of this case -- the defective bag that tore open -- which is strict liability and therefore no comparative negligence at all, so long as the customer used the bag as intended, which she did.

By emjaycee on 2013 09 05, 7:14 am CDT

austin texas has outlawed crappy bags.

part of the problem with tote bags is the dorkiness factor. that's why it is so important to get a tote you can live with. especially as a guy.

with the resurgence of made in america heavily crafted things, high quality totes are available!

waxed canvas with leather handles will look best!

for the sake of your foot, of the planet, of your dignity as you pick up crap, for the protection of your merchandise, get a good heavy quality tote! I once broke an expensive bottle because of a cheesy paper grocery bag! these high quality tote bags can pay for themselves! plus, the more you use a tote, the more you realize than, "man purse" jokes notwithstanding, the incredible usefulness of a highquality waxed canvas tote with natural leather handles, or thick beautiful waxed canvas, particularly handmade from santa cruz, will make your life so much better!

By defensive lawyer on 2013 09 05, 3:30 pm CDT

"Man purse?" Ptooey!

Step up to the shopping bag that sports an original work of art! Yes, it's the BMF tote bag, made of recycled bottles in two designs. Choose our trademark large economy-sized model, imprinted with the stylized shot of the the "green flash" at sunset! And for those who like the idea of pissing people off, there's the smaller size imprinted with a nekkid woman, strategically posed and holding a whip, with the legend: "It's spring--and the poseurs are in bloom!"

By BMF on 2013 09 05, 3:51 pm CDT

here's another advantage to the tote; when you need to get out the door fast, and you have lots of little things you may need that day, you can put it all in the tote,a dn youre good to go. obviously, not always do you ahve many little things, but if you occasionally do, and sometimes forgot something or other cause you didn't pack it away the nightbefore in your tote, that's a compelling reason to get a tote.

the great thing about waxed canvas is that it stands up on its own, no sagging. just sets there, waiting, open and ready for your items. solid. droopy totes, feh. powerful, stiff, canvassy, manly thick totes of marine grade canvas...yeah!

the betetr quality tote you own, the more likely you are to carry it everywhere, the more liekly you are to have it at hand when it's necessary, Im very passionate about a good tote bag.

the foot you save may be your own...

By defensive lawyer on 2013 09 05, 4:33 pm CDT

the onion used to sell a great tote that had imprinted on the side,


wish id bought one

By defensive lawyer on 2013 09 05, 4:37 pm CDT

Ms Weiss: Some of these "case notes" may be curious or interesting, but I have no interest in reading some of these silly personal comments which are illustrative of the loss of civility in our profession. I wish you and the contributors well, but I am finished with this ABA feature.

By fetlaw on 2013 09 06, 8:07 am CDT

"Silly personal comments" are not contrary to the Comment Policy (so long as they are on-topic").

By B. McLeod on 2013 09 06, 8:22 am CDT

Shopping at WalMart = assumption of risk.

By Pragmatist on 2013 09 06, 12:25 pm CDT

This has *all* the trappings of a frivolous lawsuit:
1. Defendant with deep pockets
2. Personal injury claim
3. Weak to no causation
4. Decedent's large share of comparative fault
What can I say, couldn't have happened to a nicer defendant? Also telling - plaintiff filed in state court and is fighting a motion to move to the feds. Guess they don't want the case looked at substantively.

By sanenazok on 2013 09 06, 12:39 pm CDT

The poor woman's death was not caused by an overstuffed shopping bag.
Her death was not caused by a broken toe.
She died of a staph infection.
Unless she caught the staph infection at Wal-Mart due to their negligence, Wal-Mart is not responsible for her death.

By SH on 2013 09 06, 1:28 pm CDT

All the legaleze aside... does anyone not believe in the word "ACCIDENT" anymore? I'm pretty sure it's still in the dictionary...

I don't understand why he doesn't also go after the company who makes the item that caused the cut in the first place; that's the OBVIOUS killer!

*sigh* Yay for America.

By Rachel on 2013 09 06, 1:44 pm CDT

Any cut can lead to infection which can lead to death. So therefore, anybody who does anything that might cause another person to get cut is potentially liable for death? I guess we are throwing proximate cause completely out the window.
In that case, the plaintiff would not have died had she stayed home that day. Therefore, her own negligence was a superseding cause.

By Smeliot on 2013 09 06, 1:47 pm CDT

Yes, an injury was forseeable.Baggers/clerks double bag to avoid items falling through the bag. Some of these items are heavy (milk, ice, bags or grapefruit, etc.) Since the grocer must know that certain merchandise accumulated in a bag is heavy and could, if not properly double bagged, pentrate the bag, fall on a customer carrying the bag and land on a toe that's directly under the bag, it's forseeable that complications, such an infection, could arise from such from such negligence - even death.

Nebraska is a modified comparative fault state. The tortfeasor avoids liability if less than 50% at fault, which is not the case here in my opinion.

Now the fact you are dealing with a Nebraska jury, if you so choose, is a different issue...

I think the claim has legs and is not frivolous.

By CT Lawyer on 2013 09 06, 1:48 pm CDT

I don't understand how the shoe manufacturer has avoided being named. What about La Choy, for producing an inherently dangerous--not to mention nasty--product in the first place? Also, sounds to me like that can should have been sterilized. The federal government should promulgate regulations requiring retailers to install UV disinfectant systems along with every barcode scanner. All that having been said, the husband shouldn't be allowed to recover in any event, as he obviously was exploiting the male power structure by forcing his wife to do the grocery shopping.

By Chris on 2013 09 06, 2:41 pm CDT

During the first three weeks of November, all over the USA, people drop frozen turkeys on their foot, resulting in at least painful and at worst severe injury--perhaps fatal? Some turkeys slide out of an over-stuffed freezer; some fall from failed bags, paper or plastic.

And now we have the possibility of getting a big check (or 2/3's of a big check) for a routine household accident that has occurred in America every November since the 50's at least. What a great country.

Good thing her daughter wasn't talking to her on the cell phone at the same time or she'd get sued, too, for distracting her and causing her death. The guilt would be horrible enough.

On the tort law side: no one has mentioned the remoteness factor: had the bag broke the instant the clerk handed it to her, causing the same injury, it would be a materially different case than this one, or had it broken at home after she rode around in the car a couple hours then schlepped the bag up three flights of steps.
That remoteness, a salient fact, goes to proximate cause, assumption of risk and contributory negligence.

and besides, the reasonable man always places one hand under a heavily laden bag, and takes them one at the time out of the cart to load them into the trunk. She was not the reasonable man. she loses.

For the scrapping over law school torts and real world torts: they simply are not as related to each other as they should be. This is why law students need to work in a firm in the summer-the best example in my life was concerning a weak, perhaps erroneous, position we had to take in a UCC case: "Well I wouldn't put it in a law review article but it will be just fine for Judge Baker." And we won.

By Hadley V. Baxendale on 2013 09 06, 2:42 pm CDT

I like comments that are longer than the actual article. "thirty-one" is the best

By OLIVER KLOSOV on 2013 09 06, 2:59 pm CDT

Well, judging from the, ahem, "merits" of this case, I guess we can conclude that there is now a glut of lawyers in Nebraska, too.

Perhaps if Wal-Mart didn't have to defend so many frivolous lawsuits, they'd be able to afford better grocery bags?

By Just Some Bloke on 2013 09 06, 3:00 pm CDT

Perhaps if Walmart had heavier bags, its prices would be higher and the victim wouldn't have shopped there in the first place. I swear, if I had another kid, I would just go ahead and name him or her "Plaintiff".

By Chris on 2013 09 06, 3:14 pm CDT

You want people to use tote bags? So then what? Sue Walmart for the resulting increase in food poisoning (which is far more deadly than renegade cans smashing toes and offing the unfortunate)?

By Tote Bags? on 2013 09 06, 3:18 pm CDT

They were the best of comments and they were the worst of comments.

The best: "the husband shouldn’t be allowed to recover in any event, as he obviously was exploiting the male power structure by forcing his wife to do the grocery shopping." it;s the best because there are many deluded people who post here who would shrilly argue that point-the same ones who fling gratuitous barbs at "white males" wherever they may, or may not, exist.

The worst: that the whole tragedy is to be blamed on "corporations." This guy would villify Wal-mart (which FTR I hate, too) but not the roadside vegetable stand? My wife's antique store? Well OK the latter is an LLC, but single member, so intrinsically evil? benignly human?

The whole "corporatios are evil" screed sprang from the preciously naive "occupy wall street" jamborees, where those who knew nothing about the free market process, and could not engage critical thinking, frolicked about in the pleasant weather for a few days or weeks, railing against the Heffalump they called "corporations" and any officer of same. Sleeping in tents made by North Face, talking on phones made by Apple and connected to T-mobile, withdrawing cash from ATM's linked to Citibank to buy more muffins from Starbucks and granola from General Mills; clueless that they all needed CORPORATIONS! for their slumber party. But the weather turned nippy, the allowance dried up, the taxpayers were tired of paying for the festival, and away they went like Peter Pan growing up.
Except the guy here who aptly calls himself "stupid lawyer" (Mods: that's not a personal attack, just a quote).

By Hadley V. Baxendale on 2013 09 06, 4:19 pm CDT

What evidence is there that the bag was "overstuffed"? It's being automatically assumed the bag was overstuffed because it was reported it broke. If the Walmart employee properly filled the bag within the bag manufacturer's specifications, it would not be foreseeable that the bag would break, would it?

By JustAskin' on 2013 09 06, 4:42 pm CDT

I'm sure there are plenty of cases where people try to game the legal system for profit. But I think it would be a rare case that someone would get herself killed just so her estate and family can sue for damages.

By Reader on 2013 09 06, 4:47 pm CDT

How long was it before she got medical attention for the cut? Did she regularly treat it with a disinfectant?

For evidence, I think it will be difficult to show how many items were actually in the bag.
Was there a witness to the bag breaking and an item actually falling on her foot and creating the cut? Wonder if they have parking lot surveillance tapes.

Some Walmart stores have already eliminated providing bags requiring the purchaser to either bring their own or purchase a tote at check out.

I do struggle with the idea the accidents do happen. We are so inclined now as a society to look to blame for unfortunate events. A certain number of plastic bags do break or tear.

By Medical attention? on 2013 09 06, 5:01 pm CDT

Gentle reader: in cases where there is an actual injury, seldom is the "gaming" intended from the beginning; it comes afterwards when the injured or those related look around for a way to capitalize on the injury.

Perhaps here the grieving husband isn't thinking clearly; anger, usually misdirected, is a stage of grief. For now, I feel sorry for him. If he steps back and takes a rational look at what he is doing, then he will drop it, unless he is motivated by greed or revenge, and not seeking just compensation.

Oh, wait. Injury over three years ago; death over two years ago. I vote "gaming."

By Hadley V. Baxendale on 2013 09 06, 5:22 pm CDT

@49, Products liability attaches to every person in the chain that placed the item in the hands of the consumer. All are negligent if they place a defective product that does not perform to its expectations and causes injury.

By Santana on 2013 09 06, 5:32 pm CDT

@52, I think the husband is pretty rational. PI lawyers typically work on contingency so the husband will unlikely have to worry about legal fees. And if you are familiar with how the game works, then you know this type of case will be expensive to defend and not impossible to lose. Expensive because there are lots of factual issues and experts will need to be involved. Not impossible to lose because you can't predict how a jury will rule (just look at how the commentators are disagreeing with each other on the merits of this case). Therefore, if Walmart can't get rid of this by demurrer/motion to dismiss, it will likely settle for a good amount of money of which 50% or more will go to the estate/husband.

By Reader on 2013 09 06, 5:40 pm CDT

The real culprit here is lack of access to medical care. I would bet that the woman decided not to go to the doctor (until it was too late) because of cost, either because she had no medical insurance, or inadequate insurance. Her death was almost a year after the incident. How much of that time was spent putting off going to the doctor, and hoping it would just take care of itself?

By TheRealCulprit on 2013 09 06, 6:13 pm CDT

reader, everything you say is true (and I am well familiar with the dynamics) and is why it is morally wrong to pursue a baseless claim, on the off-chance of extorting some money you don't deserve.

Few people shed a tear over Walmart being abused like this, and big as it is, the payment won't affect its retail prices or wages paid to employees. But apply the same facts against the small independent shopkeeper and you have to see how wrong it is to do this, and how flawed our system that lets plaintiffs with nothing better to do, and their contingency fee lawyers, get away with it.

By Hadley V. Baxendale on 2013 09 06, 6:27 pm CDT

She should have shopped at my local Walmart - with creative double-bagging, I have on occasion ended up taking home more bags than products.

By KML on 2013 09 06, 7:08 pm CDT

A tragic series of events and someone is dead....but walmart is liable because one too many cans were in the bag? Pull on whatever legal theory you want- the ppl who haven't been to law school think this is BS. I've been to law school and so do I.

By Wingcmdr on 2013 09 06, 8:18 pm CDT

The 11 months between the accident and death would seem to argue against the accident being the proximate cause of her death.

By Irish Bearcat on 2013 09 06, 8:35 pm CDT

What stopped the woman from asking for an extra grocery bag? Leaving that aside, not every death is actionable. I am sorry the woman died but accidents do happen.

By Suzanne M Carter on 2013 09 06, 8:43 pm CDT

I do personal injury work. I wish someone would tell me where all these insurance companies are that will settle meritless cases to avoid paying legal fees. It sounds logical but does not happen. It certainly does not happen with walmart. I am sure this is not the first walmart has heard of this. If they were going to settle they would have. I think they have the money to go to trial and quite frankly cannot lose because if they do not win in court it will create sensational headlines that they will use to argue for tort reform.

By sigmod333 on 2013 09 06, 9:56 pm CDT

Forget the cans and the bags for a moment: Think about this from the standpoint of the experts that eill invariably called on to testify. What was the bacterial infection that this woman died of, and why was it resistant to antibiotics? If the bacteria can be traced to a Walmart Supercenter where the groceries were purchased, Walmart has a big problem, and better seek a quick settlement and call in a hazmat team. The presence of antibiotic resistant bacteria in many jurisdictions is enough to shut them down. If the bacterial infection was picked up during treatment in a medical center, it is arguably a supervening intervening cause. If the bacteria became resistant because the patient was non-compliant and failed to follow through with treatment, then it is a contributory negligence/comparative fault issue.

@ 61: The Waltons tend to be hardasses w/r/t settling issues--or so I'm told. That may be one of the reasons they have a secret family bunker that is supposedly bomb-proof!

By BMF on 2013 09 08, 3:54 am CDT

If you really think roving bands of testers in hazmat suits go about checking establishments for resistant bacteria and shutting them down, you've been watching way to much Science Fiction Channel.

By B. McLeod on 2013 09 08, 4:53 am CDT

This is very interesting. And I do believe there could indeed be neglect here. I also agree that it would probably be a good idea to use the cloth bags for those who must carry groceries home on buses or when they are required to walk home with groceries in their arms and hands.

But what if we add that there had been a new string of complaints against the cheaper plastic bags, the over stuffing of the bags by the employees? What if there had been knowledge by management of a line of complaints and other increased, reported incidents of breaking plastic bags...things that make you go....hmmm???

By concernedcitizen on 2013 09 08, 6:43 am CDT

McLeod @ 63: The inspectors may not wear hazmat suits when they surreptitiously swab those surfaces, but the hazmat team Walmart will have to hire to correct the problem--assuming it exists--will at least be wearing spiffy coveralls and face masks. And if they charge $1500 for hosing down a sidewalk in Las Vegas, I'm sure they'll charge a small fortune to sanitize a 50,000+ foot Supercenter.

@ 64: Cloth bags that aren't washable also have their drawbacks, as they absorb juices that leak from from packaged meats and milk products, promoting bacterial growth and potential for contamination. Heavy-duty recycled plastic bags can at least be wiped down periodically with a bleach solution.

As for Walmart's knowledge of the overstuffed plastic bag problem, the story doesn't say. If this is so, then we potentially have a situation similar to the McDonald's coffee incident--where a woman wins a $2 million dollar judgment for spilling hot coffee on her lap while driving--and all of America tsk-tsks about money-for-nothing. Meanwhile the news conveniently omits the fact that the case was settled for about a tenth of that amount, and the reason the judge awarded damages that high in the first place was because McDonald's knew about the problem, but ignored it--because the marketing department produced figures showing that the smell of boiling coffee increased sales by millions of dollars per year for the corporation.

By BMF on 2013 09 08, 5:55 pm CDT

Resistant bacteria is everywhere. It is spread by human and animal carriers, and can also be transported on surfaces and fabrics. It would be unusual for a public place as large as a Wal Mart to NOT have some contaminated surfaces or fabrics present on any given day. Hence, if someone swabbed every surface (including the parking lot) and tested every inch of fabric in a Wal Mart, they should expect to find some resistant bacteria. I do not think this would be probative as to whether the plaintiff actually encountered that bacteria at the Wal Mart. Further, I doubt that Nebraska has any public health program that provides for testing and decontamination of retail facilities for this risk.

By B. McLeod on 2013 09 08, 7:05 pm CDT

This was clearly the foreseeable harm that would result if you provide someone with a flimsy nylon shopping bag. Most groceries are completely lethal if dropped onto your foot from a height of 12 inches or so.

By Adamius on 2013 09 08, 9:36 pm CDT

As many towns move to regulate and reduce the use of plastic bags, we will encounter more frequently the stores which charge a few pennies for each plastic bag.

This will encourage shoppers to over-stuff the bags. But when they choose to do so to dave a few cents, they become responsible for accidents such as this one.
Until the "poverty law" types get ahold of it and claim the laws unfairly harm and endanger the poor (or worse, that certain race) and therefore are unconstitutional.

All this crying over spilt milk.

By Hadley V. Baxendale on 2013 09 09, 2:40 pm CDT

I wouldn't call someone's death "spilt milk". (Although I will agree that these ever-more-flimsy plastic bags probably ARE the cause of much actual "spilt milk".)

But I do oppose tree-hugging laws that outlaw plastic bags and requires stores to charge 10 cents or more even for paper ones. (And among other negative consequences, such laws probably DO contribute to the overloading of grocery bags.)

By emjaycee on 2013 09 09, 4:32 pm CDT

There is a lot of discussion about reusable bags.

After a few uses, reusable bags are filthy with mold, blood, and all the other substances that either drip from purchased products or are picked up from shopping carts. A note to lawyers defending infection cases: Demand to inspect the reusable bags in the plaintiff's residence and vehicle; you never know what you may turn up.

By Been There on 2013 09 09, 4:41 pm CDT

good lord, been there...are you carrying severed cow heads in your tote bag?

canvas is machine washable....and you can leave it out int eh sun for a bit to kill most everything else.

you amke it sound like unless we use 9 billion plastic bags a year we shall all die from infection...whcihs trikes me as...nuts.

for there is nothing better than a high quality canvas tote bag....

By defensive lawyer on 2013 09 09, 8:55 pm CDT

We all know what can happen when you over-stuff cheap, flimsy bags (see e.g., that scene in Home Alone when both bags break while Kevin is walking home). Hell, they dont even need to be that full. So....don't grocery-shop in flip-flops, maybe?

Solution: Groceries and big box stores should print an explicit warning on every plastic bag (and post signage at registers, for good measure), to the effect of: "WARNING: Plastic/paper bags are provided for shopper convenience in transferring items into carts and vehicles, and may vary in strength and durability. Bags may rip or break without warning, regardless of size and weight of contents, causing contents to fall and cause damage to groceries, other property, or physical injury to you or others. CUSTOMER EXPRESSLY ASSUMES ALL RISK ASSOCIATED WITH USE OF BAGS. [Insert store name] is not responsible for injuries or property damage resulting from the failure of a bag. ALL WARRANTIES, EXPRESS AND IMPLIED, ARE HEREBY DISCLAIMED."

Stores should have a similar warning sign at check-out as to those reusable bags customers provide (especially for people like me who tell the clerk to pack it til its full, no matter how heavy the contents)!

Actually, there are 'no-frills' stores that don't provide bags at all (bring your own, or carry your stuff out by hand), and many with self check-outs where the shopper packs their own bags. If stupid lawsuits like this start cropping out, stores will simply have check-out clerks scan your stuff and pile it up for shoppers to bag themselves. Ain't nobody got time for that!

By JP on 2013 09 09, 9:13 pm CDT

I like it and I see the causation. I tried a case one time where a woman had a tummy tuck to get the weight off her back. She had had a back injury. The defense couldn't see it either. The woman got an infection of course, where? in the tummy tuck. I won a permanent total - wc case. Alabama. I have had those bags break on me and it could happen. You take your plaintiff as you find them. Its entirely forseeable that for example - a glass jar would break when these bags break. You cut a diabetics toe and you have an infection that might not heal. Mandating recyclable bags would take care of this problem and save land fills but it might hurt homeless folks that churches are making mats for. (Wash them and take care of the e-coli problem!) If you forget your bags like I do at ALDI's. I simply stop on the way home sometimes and don't always go home to get the bags. So penalty - you buy more. I have about 5 bags now because I continually forget them. Those bags from Wal-Mart or those dollar stores aren't worth the plastic they use to make the bags with. Even when the cashiers double bag items they still seem to break. I bet if you took a survey the American public would say can the bags that they use now. They need to sue the manufacturer because that's the only way to get at the root of the problem.

By Lois on 2013 09 11, 12:40 pm CDT

About the standard of care -- which is defined as the reasonable expectation under the totality of the circumstances -- we are talking about a disposable, single-use, mass-produced product offered as a COURTESY for customers. Making the bags thicker and stronger increases waste, costs several times more, takes up more room in storage (which is in short supply in any store), and STILL does not guarantee that the bag will not fail. If a paper bag gets wet because you have ice cream or milk and the cold product condenses moisture from the atmosphere, it will fail, unless the bag is lined with some type of material that, by itself, would hold the weight of the items in the bag (wet paper falls apart under its OWN weight, regardless of its thickness). Mass-produced plastic bags are attached at the bottom by sealing machines that miss the seam, insufficiently seal the bag, overheat the seam producing holes next to it, etc. Preventing paper bags from breaking even when wet, or completely preventing (or even taking steps reasonably calculated to prevent) plastic bag failure through increased film thickness, better quality manufacturing methods, more quality assurance, and other methods would increase the time, labor, and cost needed for production to the point that the bags would no longer be practical or affordable, and it would increase landfill contribution to the point that environmental groups, county and municipal governments, and the average taxpayer would refuse to let it happen.

We have the thinner bags, made of recycled materials, designed to have a minimal imprint in landfills, mostly because of environmental concerns. The plastic bags used now are weaker and thinner, but they are also more expensive, than the ones they replaced, because of the demand that corporations reduce their carbon footprints, etc. Paper bags can be made from a number of recycled papers -- cardboard, newspaper, etc. -- but paper has always had an inherent weakness, which is water, and there is no feasible practicable solution to that problem. Besides, paper bags can carry roaches, which use the cellulose in paper as a source of food.

Canvas, recycled plastics, nylon, etc. -- it doesn't matter what you use for a reusable bag -- they all trap materials from spills, fresh fruits, broken bottles, etc., which in turn can promote the growth of molds and bacteria and attract insects and other pests. And not even these materials are foolproof when it comes to failure -- since the product is "reusable," it will eventually fail due to normal wear and tear, with the same result as your cheap plastic or paper bag.

The only "surefire, foolproof" way to completely prevent bag failure and injuries due to bag injuries is for grocers and shopping centers to do away with bags altogether. Take your items directly from your shopping cart and place them into your car's trunk. But we don't advocate for this solution, for the same reason we don't lower the speed limit nationwide to 15 mph (and electronically limit vehicles to that speed) -- although it would virtually eliminate motor vehicle injuries and deaths.

There is a balance struck between risk and convenience. Driving 300 miles at 15 mph is so inconvenient that no one will ever suggest that it should be done -- even though it is guaranteed to save about 35,000 lives a year. Similarly, the number of deaths attributable to cheap plastic bags breaking and heavy items falling on the foot or toe of a consumer is ... well, I can only find ONE in the entire history of consumer shopping. And the causation is suspect, too -- eleven months later?? -- but other people have belabored that point, so I won't.

The point is, the "root of the problem" is that there is a balance between convenience and risk. We don't demand that automobiles (also planes, boats, ATVs, trucks, trains, etc.) be outlawed to prevent all automobile deaths, we don't demand that 5-gallon buckets be outlawed (or fitted with round bottoms to prevent them from holding contents while unattended) to prevent the three drowning deaths every five years attributable to them, and we don't demand that grocery stores make thicker, stronger, better quality grocery bags, to make sure that they never rip open.

By sb on 2013 09 12, 6:01 pm CDT

"Foreseeability" means nothing, it appears, to some of you. The case is close to frivolous, but for those of you who believe it has merit, file away. I'm betting the average common sense jury in Nebraska (I know the jurisdiction - and assuming a judge would submit it), would come back with a big goose-egg verdict - zero, zilch, nada. Have fun with those contingency fee agreements, boys and girls. IMHO this case is all about the target defendant - the evil Walmart. Take a chance, sue the big corporate giant, fight to get it to a jury of numbskulls, and you might get lucky. Is that what the legal system is all about? Yep. I'm about a year out from retirement - it is time . . . .

By DUD on 2013 09 13, 5:44 pm CDT

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