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IN THE SUPREME COURT OF OHIO
BARBARA RIEGER, ) Supreme Court Case No. 2018-0883 )
Appellee, ) On Appeal from the Cuyahoga County ) Court of Appeals, Eighth District
v. ) ) Court of Appeals Case No. CA-17-105714
GIANT EAGLE, INC., ) )
Appellant. )
MERITS BRIEF OF AMICI CURIAE, THE FOOD MARKETING INSTITUTE, THE OHIO COUNCIL OF RETAIL MERCHANTS, THE OHIO GROCERS ASSOCIATION,
THE OHIO ALLIANCE FOR CIVIL JUSTICE, THE NATIONAL GROCERS ASSOCIATION, AND THE OHIO CHAMBER OF COMMERCE,
IN SUPPORT OF APPELLANT GIANT EAGLE, INC.
Richard D. Schuster (0022813) John J. Wargo (0023299) *Counsel of Record Thomas M. Wilson (0038933) VORYS, SATER, SEYMOUR AND PEASE LLP WARGO AND WARGO 52 East Gay Street, P. O. Box 1008 30 Park Drive; P.O. Box 332 Columbus, Ohio 43216-1008 Berea, Ohio 44017 Telephone: (614) 464-5475 Telephone: (440) 234-0662 Facsimile: (614) 464-6350 Facsimile: (440) 234-4179 [email protected] [email protected]
[email protected] Nathan L. Colvin (0087093) VORYS, SATER, SEYMOUR AND PEASE LLP Counsel for Appellee Barbara Rieger301 East Fourth Street, Suite 3500 Great American Tower Cincinnati, Ohio 45202 Telephone: (513) 723-4670 Facsimile: (513) 852-7842 [email protected]
Counsel for Amici Curiae The Food Marketing Institute, The Ohio Council of Retail Merchants, The Ohio Grocers Association, The Ohio Alliance for Civil Justice, The National Grocers Association, and The Ohio Chamber of Commerce
Supreme Court of Ohio Clerk of Court - Filed January 22, 2019 - Case No. 2018-0883
ii
Roger H. Williams (0016430) Christina N. Williams (0093726) WILLIAMS, MOLITERNO & SCULLY, CO. L.P.A. 2 Summit Park Drive, Suite 235 Cleveland, OH 44131 Telephone: (330) 405-5061 Facsimile: (330) 405-5586 [email protected] [email protected]
Scott D. Livingston MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 Telephone: (412) 471-3490 Facsimile: (412) 391-8758 [email protected]
Counsel for Appellant Giant Eagle, Inc.
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION AND STATEMENT OF INTEREST OF AMICI CURIAE ........................... 1
STATEMENT OF THE CASE AND FACTS ............................................................................... 5
I. Ohio’s Senior and Disabled Population is Significant and Growing .................................. 5
II. Mobility Devices, Like Motorized Shopping Carts, Improve Quality of Life and Independence for Ohio Senior Citizens and People With Disabilities ............................... 6
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW NO. 1 .............................................. 8
Proposition of Law No. 1: For stores that provide complimentary motorized carts to disabled shoppers, there is no duty to warn about the obvious danger of a pedestrian-cart collision, no duty to train disabled customers how to operate a simple motorized cart, and no duty to interrogate customers to determine whether their disability disqualifies them from operating a cart ....................................................................................................................... 8
I. The Eighth District’s Creation of New Duties For Retailers Who Provide Motorized Shopping Carts Has No Basis in the Law ......................................................... 8
A. Ohio Law Previously Rejected Such Duties ........................................................... 9
B. The Overwhelming Majority of Other Jurisdictions That Have Considered This Issue Have Rejected the Duties Established By the Eighth District ............. 10
1. Other Jurisdictions Uniformly Hold There is No Duty to Warn or Protect ....................................................................................................... 11
2. Other Jurisdictions Hold There is No Duty to Train ................................. 11
3. Other Jurisdictions Hold There is No Duty to Interrogate Customers on Their Disability .................................................................. 11
II. The Eighth District’s Creation of New Duties For Retailers Who Provide Motorized Shopping Carts Has No Basis in Fact ............................................................. 12
III. The Eighth District’s Decision Should be Reversed Because it Conflicts With the Americans With Disabilities Act ...................................................................................... 14
IV. The Duties Established by the Eighth District Should Be Rejected on Policy Grounds ............................................................................................................................. 16
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW NO. 2 ............................................ 17
Proposition of Law No. 2: Mere possibility of harm from the underlying tortious conduct is insufficient to establish the malice required for an award of punitive damages ....................... 17
ii
I. The Eighth District Has Established a New and Improper Standard for Malice and Punitive Damages ............................................................................................................. 17
A. The Eighth District Established That Now Only The “Possibility of Harm” is Sufficient ........................................................................................................... 18
B. The Eighth District Also Established That Insubstantial Harm is Sufficient ....... 19
C. The Eighth District’s Decision Could Have a Far Reaching Impact For Ohio Businesses .................................................................................................... 20
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW NO. 3 ............................................ 21
Proposition of Law No. 3: A plaintiff must establish proximate cause to recover for an injury allegedly resulting from a failure to warn, train or interrogate with respect to an accident involving a motorized shopping cart .............................................................................. 21
I. The Eighth District’s Decision Improperly Eliminates the Proximate Cause Requirement From Motorized Shopping Cart Cases ........................................................ 21
II. The Eighth District’s Elimination of a Causation Requirement for Motorized Shopping Cart Injuries Will Further Deter Retailers from Providing This Service to People With Disabilities ............................................................................................... 24
CONCLUSION ............................................................................................................................. 24
CERTIFICATE OF SERVICE ..................................................................................................... 26
iii
TABLE OF AUTHORITIES
Cases
Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088 (2003) ..... 9, 14
Cincinnati Baseball Club. Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1925) ............................. 10
Davis v. Wal-Mart Stores, Inc., No. 3:12-cv-122, 2013 U.S. Dist. LEXIS 57739 (M.D. Ga. April 23, 2013) ................................................................................................................... 12
Eggelston v. Wal-Mart Stores E., L.P., No. 3:05CV721, 2006 U.S. Dist. LEXIS 22518 (E.D. Va. April 20, 2006) ................................................................................................... 12, 24
Gedra v. Dallmer Co., 153 Ohio St. 258, 91 N.E.2d 256 (1950) ........................................... 21, 23
Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974) .................. 17
Gruver v. Kroger Co., 54 So.3d 1249 (La. App. 2011) ................................................................ 11
Johnson v. Wal-Mart Stores East, L.P., 2014-Ohio-2998, 12 N.E.3d 1262 (2nd Dist.)..... 9, 10, 24
Koprivec v. Rails-To-Trails, 153 Ohio St. 3d 137, 2018-Ohio-465, 102 N.E.3d 444 (2018) ........................................................................................................................................ 12
Lewis v. Hannaford Bros. Co., No. CV-06-113, 2007 Me. Super. LEXIS 145 (Maine Superior Court) ......................................................................................................................... 23
McKinney v. Hartz & Restle Realtors, Inc., 31 Ohio St.3d 244, 510 N.E.2d 386 (1987) ............ 10
McManus v. Brookshire Grocery Co., 25 So.3d 256, 2009 La. App. Unpub. LEXIS 722 (La. App. Dec. 16, 2009) .................................................................................................... 11, 12
Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 472 N.E.2d 707 (1984)....................... 21
Motorists Mut. Ins. Co. v. Said, 63 Ohio St.3d 690, 590 N.E.2d 1228 (1992) ....................... 18, 19
Mussivand v. David, 45 Ohio St.3d 314, 544 N.E.2d 265 (1989) .................................................. 8
Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985) .................... 8, 23
Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174 (1987) ................................................... 18
Reinhardt v. Great Atlantic & Pacific Tea Co., 829 So.2d 600 (La. App. 2002) ......................... 11
Rieger v. Giant Eagle, Inc., 2018-Ohio-1837, 103 N.E.3d 851 (8th Dist.) ........................... passim
Sidle v. Humphrey, 13 Ohio St. 2d 45, 233 N.E.2d 589 (1968) syllabus ....................................... 9
iv
Sivit v. Vill. Green of Beachwood, L.P., 143 Ohio St.3d 168, 2015-Ohio-1193, 35 N.E.3d 656 (2015) ................................................................................................................................. 17
Thomas v. Costco Wholesale Corp., No. 15370212015, 2017 N.Y. Misc. LEXIS 2217 (N.Y. Sup. Ct. June 1, 2017) ..................................................................................................... 11
Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 644 N.E.2d 397 (1994) .................................. 18
Statutes
R.C. § 2315.21(C)(1) .................................................................................................................... 17
R.C. § 2315.21(D)(2) .................................................................................................................... 18
R.C. § 2315.21(D)(4) .................................................................................................................... 17
R.C. § 2315.21(D)(5) .................................................................................................................... 18
Regulations
28 C.F.R § 36.311(c)(1) ................................................................................................................ 15
28 C.F.R. § 36.104 ........................................................................................................................ 14
28 C.F.R. § 36.11(a)...................................................................................................................... 14
Other Authorities
62A Am. Jur. 2d, Premises Liability, § 553 (2017) ...................................................................... 13
Erickson, W., Lee, C., & von Schrader, S. 2016 Disability Status Report: Ohio (2018), Cornell University Yang-Tan Institute on Employment and Disability available athttp://www.disabilitystatistics.org/StatusReports/2016-PDF/2016-StatusReport_OH.pdf?CFID=10082474&CFTOKEN=9966bce33aab1c3f-E4754FEC-037D-08F3-D492FC97FE56FA20 (accessed Jan. 22, 2019) ..................................................... 5
Ingram, Sarah S., Mart Carts Serve Growing Number, Newport News Daily Press (March 18, 2002) ..................................................................................................................................... 7
Ortman, Jennifer M., Victoria A. Velkoff, and Howard Hogan. An Aging Nation: The Older Population in the United States, Current Population Reports, P25-1140. U.S. Census Bureau, Washington, DC 2014 available athttps://www.census.gov/prod/2014pubs/p25-1140.pdf (accessed Jan. 22, 2019) ...................... 6
Prosser & Keeton, The Law of Torts (5th Ed. 1984) 212 ............................................................. 18
U.S. Department of Justice Civil Rights Division, ADA Requirements: Wheelchairs, Mobility Aids, and Other Power-Driven Mobility Devices (Jan. 31, 2014), available atwww.ada.gov/opdmd.htm (accessed Jan. 22, 2019). ................................................................ 15
v
Webber, Sandra C., Porter, Michelle M., Menec, Verna H. Mobility in Older Adults: A Comprehensive Framework, The Gerontologist, Vol. 50 No. 4, p. 444 (2010), Oxford University Press .......................................................................................................................... 6
World Health Organization & U.S. Agency for International Development. Joint Position Paper on the Provision of Mobility Devices in Less-Resourced Settings, p. 7 (2011) available at https://www.who.int/disabilities/publications/technology/jpp_final.pdf (accessed Jan. 22, 2019) ............................................................................................................. 7
INTRODUCTION AND STATEMENT OF INTEREST OF AMICI CURIAE
More than 830,000 Ohio citizens have an ambulatory disability that makes walking
difficult, and that number is expected to increase significantly, as the number of senior citizens
grows in the next few decades. Many of these citizens depend upon mobility devices to stay active,
independent, and improve their quality of life. This includes motorized shopping carts, which
Ohio retailers—including many members of amici—provide as a courtesy at stores throughout
Ohio to help people complete basic tasks like grocery shopping.
Ohio retailers serve an important public service when they provide motorized shopping
carts to disabled and elderly Ohioans, and they should be lauded for providing this complimentary
service. Instead, in the view of amici, the decision of the Eighth District Court of Appeals punishes
them. The Eighth District has established new duties and legal standards that are so onerous
that they are likely to reduce or eliminate the provision of motorized shopping carts at Ohio
retail stores, and these new duties are in clear conflict with federal regulations that govern
retailers’ interactions with the disabled.
For example, the Eighth District created entirely new tort duties, including:
1. A duty to warn about the obvious danger of a pedestrian-cart collision;
2. A duty to train people with disabilities how to operate a simple motorized cart; and
3. A duty to interrogate customers to determine whether their disability might prevent the safe operation of a motorized shopping cart.1
There is no evidence that these duties would be effective, much less that they are the industry
standards that a reasonable retailer would perform. Instead, these duties are extremely onerous on
1 This case does not involve the duty of a store to properly maintain motorized shopping carts because there is no allegation that the motorized shopping cart at issue here was not properly maintained by Giant Eagle.
2
the retail store—and on the customer—so much so that they will undo customer goodwill and
potentially embarrass customers. Moreover, the Eighth District’s new duty to interrogate
customers who use motorized carts would violate the Americans with Disabilities Act, which
prohibits stores from engaging in this inquiry.
Additionally, the Eighth District’s decision establishes a new definition of malice sufficient
to support an award of punitive damages. Malice is now established for any Ohio retailer found
to violate these new duties where a few (rare) prior incidents involving injuries from a motorized
shopping cart can be established without any evidence that the prior incidents were similar, caused
by a failure of the retailer, resulted in “substantial” injuries, or established the “near certainty” of
this sort of accident occurring—all of which had been required by Ohio law to prove malice.
Finally, the Eighth District’s decision essentially eliminates the need to prove
proximate causation, because it held that there is no need for the plaintiff to establish that the
collision was caused by a violation of one of these duties. This elimination of any need for a
plaintiff to establish causation is unprecedented in Ohio law.
The duties and standards established by the Eighth District have no basis and are outliers
when compared to other courts that have considered these issues. When faced with these new
realities, Ohio retailers will have no choice but to reconsider their decision to provide motorized
shopping carts to people with disabilities. Furthermore, it is easy to see how these new duties will
be misused in other common situations in retail settings, potentially changing the landscape of
premises liability law. Amici therefore respectfully request that the Court address the three
propositions of law present in this case as follows:
Proposition of Law No. 1: For stores that provide complimentary motorized carts to disabled shoppers, there is no duty to warn about the obvious danger of a pedestrian-cart collision, no duty to train disabled customers how to operate a simple motorized cart, and
3
no duty to interrogate customers to determine whether their disability disqualifies them from operating a cart.
Proposition of Law No. 2: Mere possibility of harm from the underlying tortious conduct is insufficient to establish the malice required for an award of punitive damages.
Proposition of Law No. 3: A plaintiff must establish proximate cause to recover for an injury allegedly resulting from a failure to warn, train or interrogate with respect to an accident involving a motorized shopping cart.
Amici are trade organizations, including several that represent Ohio and national retailers,
who all respectfully urge the Court to reverse the Eighth District’s decision that imposes new tort
duties and punitive damages upon Ohio retailers who offer these services to Ohioans with
disabilities.
The Food Marketing Institute (“FMI”) advocates on behalf of the food retail industry,
which employs nearly 5 million workers and represents a combined annual sales volume of almost
$800 billion. FMI members operate nearly 33,000 retail food stores and 12,000 pharmacies. FMI
membership includes the entire spectrum of food retail venues: single owner grocery stores, large
multi-store supermarket chains, pharmacies, and online and mixed retail stores. Through programs
in public affairs, food safety, research, education, health and wellness and industry relations, FMI
offers resources and valuable benefits to almost 1,000 food retail and wholesale member
companies and 85 international retail companies. In addition, FMI has almost 500 associate
member companies that provide products and services to the food retail industry.
The Ohio Council of Retail Merchants (the “Ohio Council”), along with its member
companies, have a keen interest in the resolution of this case. The Ohio Council was founded in
1922 and represents more than 7,500 retailers, wholesalers and distributors, ranging from local
enterprises to influential regional businesses and large enterprise organizations. The Ohio Council
4
is dedicated to presenting and protecting its members’ interests on important statewide issues and
to promoting business in Ohio.
The Ohio Grocers Association (“OGA”) is a 100-year-old non-profit trade association
representing approximately 400 grocers, wholesalers, brokers and associate members active in the
state of Ohio. OGA’s purpose is to represent the membership through legislative and regulatory
efforts, to be the resource for industry education and communication, and to work with industry
partners and alliances to best serve the membership.
The Ohio Alliance For Civil Justice (“OACJ”) is a group of small and large businesses,
trade and professional associations, professionals, non-profit organizations, local government
associations, and others. The OACJ leadership includes members from the Ohio Manufacturers
Association, Ohio Council of Retail Merchants, NFIB Ohio, Ohio Chamber of Commerce, Ohio
Association of Certified Public Accountants, Ohio Hospital Association, Ohio State Medical
Association, and other organizations. OACJ members support a balanced civil justice system that
will not only award fair compensation to injured persons, but will also impose sufficient safeguards
so that defendants are not unjustly penalized and plaintiffs are not unjustly enriched. OACJ also
supports stability and predictability in the civil justice system in order that Ohio’s businesses and
professionals may know what risks they assume as they carry on commerce.
The National Grocers Association (“NGA”) is the national trade association representing
the retail and wholesale grocers that comprise the independent sector of the food distribution
industry. Independent retailers are privately owned or controlled food retail companies operating
in a variety of formats and this sector is responsible for generating $131 billion in sales, 944,000
jobs, $30 billion in wages, and $27 billion in taxes.
5
Ohio Chamber of Commerce (“Ohio Chamber”). Founded in 1893, the Ohio Chamber
is Ohio’s largest and most diverse statewide business advocacy organization. It works to promote
and protect the interests of its more than 8,000 business members and the thousands of Ohioans
they employ while building a more favorable Ohio business climate. As an independent point of
contact for government and business leaders, the Ohio Chamber is a respected participant in the
public policy arena.
STATEMENT OF THE CASE AND FACTS
Amici adopt the statement of case and facts from the brief filed by the Defendant-Appellant
Giant Eagle, Inc. (“Giant Eagle”). In addition, amici offer the following facts for the Court’s
consideration.
I. Ohio’s Senior and Disabled Population is Significant and Growing
Approximately 1,617,400 Ohioans are disabled, according to the Cornell University
Disability Status Report, and disabled Ohioans make up 14.1% of Ohio’s population. See
Erickson, W., Lee, C., & von Schrader, S. 2016 Disability Status Report: Ohio (2018), Cornell
University Yang-Tan Institute on Employment and Disability.2 This includes 832,500
individuals with an ambulatory disability that makes walking seriously difficult. Id., p. 10.
A significant percentage of the 832,500 Ohioans with ambulatory disabilities are
senior citizens. Of Ohio citizens aged 65-74, approximately 15.8% (or 168,200 individuals) have
an ambulatory disability. Id., p. 20. That percentage increases with age. Of all Ohio citizens aged
75 or older, approximately 31.2% (or 234,700) have an ambulatory disability. Id., p. 22.
2 http://www.disabilitystatistics.org/StatusReports/2016-PDF/2016-StatusReport_OH.pdf?CFID=10082474&CFTOKEN=9966bce33aab1c3f-E4754FEC-037D-08F3-D492FC97FE56FA20 (accessed Jan. 22, 2019).
6
As sobering as these numbers are, they will only increase in the coming years. The
number of elderly citizens is expected to double between 2012 and 2050. See Ortman,
Jennifer M., Victoria A. Velkoff, and Howard Hogan. An Aging Nation: The Older Population
in the United States, Current Population Reports, P25-1140. U.S. Census Bureau, Washington, DC
2014 (“In 2050, the population aged 65 and over is projected to be 83.7 million, almost double its
estimated population of 43.1 million in 2012.”).3
II. Mobility Devices, Like Motorized Shopping Carts, Improve Quality of Life and Independence for Ohio Senior Citizens and People With Disabilities
For Ohio’s senior citizens and people with disabilities, maintaining mobility is critical
to active aging, independent living, health status, and overall quality of life. See Webber,
Sandra C., Porter, Michelle M., Menec, Verna H. Mobility in Older Adults: A Comprehensive
Framework, The Gerontologist, Vol. 50 No. 4, p. 444 (2010), Oxford University Press (“Because
activity restriction is associated with numerous consequences related to physical deconditioning
and reduced levels of social participation, mobility is intimately linked to health status and quality
of life.”). On the other hand, “[i]mpaired mobility has been shown to be an early predictor of
physical disability and, ultimately, to be associated with falling, loss of independence,
institutionalization, and death.” Id.
Mobility devices therefore “have a significant impact on the level of independence
and participation which people with disabilities are able to achieve,” “have been reported to
reduce the need for formal support services,” “reduce the time and physical burden for
caregivers,” “contribute[ ] to improved health and quality of life,” and “may also have an
impact on the prevention of falls, injuries, further impairments and premature death.”
3 https://www.census.gov/prod/2014pubs/p25-1140.pdf (accessed Jan. 22, 2019).
7
World Health Organization & U.S. Agency for International Development. Joint Position Paper
on the Provision of Mobility Devices in Less-Resourced Settings, p. 7 (2011) (emphasis added).4
In recognition of the importance of mobility to the elderly and people with disabilities,
many Ohio retailers—including a significant number of amici’s retail members—provide
motorized shopping carts as a courtesy. Indeed, complimentary motorized shopping carts are
ubiquitous at Ohio retail and grocery stores, including those of many members of amici. The
provision of motorized shopping carts assists Ohio citizens in maintaining their health and
independence while reducing the burden placed on caregivers. See, e.g., Ingram, Sarah S.,
Mart Carts Serve Growing Number, Newport News Daily Press (March 18, 2002) (explaining that
motorized shopping carts provided by retailers can be utilized by “a woman who is pregnant, a
man with a severely sprained ankle, a veteran with a war injury, a career woman recovering from
shoulder surgery or a senior citizen with arthritis” and that some shoppers “can’t shop in a place
that doesn’t have one”).
Motorized shopping carts are also relatively slow. One popular brand has a top speed
of 2.3 miles per hour.5 By way of comparison, the average walking speed has been calculated to
be around 2.9 miles per hour for older pedestrians, and 3.3 miles per hour for younger pedestrians.6
4 https://www.who.int/disabilities/publications/technology/jpp_final.pdf (accessed Jan. 22, 2019). 5 https://www.rwrogerscompany.com/wp-content/uploads/2009/09/amigo-smartshopper.pdf (describing the speed of an Amigo motorized shopping cart as 1.7-2.3 miles per hour) (accessed Jan. 22, 2019). 6 https://www.westernite.org/datacollectionfund/2005/psu_ped_summary.pdf p. 2 (explaining that the average walking speed is 4.85 feet/second for younger pedestrians and 4.33 feet/second for older pedestrians) (accessed Jan. 22, 2019).
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ARGUMENT IN SUPPORT OF PROPOSITION OF LAW NO. 1
Proposition of Law No. 1: For stores that provide complimentary motorized carts to disabled shoppers, there is no duty to warn about the obvious danger of a pedestrian-cart collision, no duty to train disabled customers how to operate a simple motorized cart, and no duty to interrogate customers to determine whether their disability disqualifies them from operating a cart.
I. The Eighth District’s Creation of New Duties For Retailers Who Provide Motorized Shopping Carts Has No Basis in the Law
The Eighth District’s decision established the following duties for retailers that provide
motorized shopping carts as a courtesy to the elderly and people with disabilities:
To warn and protect customers “from motorized carts driven by other Giant Eagle customers.” Rieger v. Giant Eagle, Inc., 2018-Ohio-1837, 103 N.E.3d 851, ¶ 24 (8th Dist.).
To train customers “on how to drive the Giant Eagle motorized cart” Id. at ¶ 27.
To prevent “an inexperienced or incompetent driver” from operating a cart. Id. at ¶ 26.
These duties had no basis in the law. “The existence of a duty in a negligence action is
a question of law for the court to determine.” Mussivand v. David, 45 Ohio St.3d 314, 318, 544
N.E.2d 265, 270 (1989). “The common-law duty of due care is that degree of care which an
ordinarily reasonable and prudent person exercises, or is accustomed to exercising, under the same
or similar circumstances.” Id. As to retail stores in particular, a store owner “owes business
invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that
its customers are not unnecessarily and unreasonably exposed to danger.” Paschal v. Rite Aid
Pharmacy, Inc., 18 Ohio St.3d 203, 203-04, 480 N.E.2d 474, 475-76 (1985) (citation omitted). In
other words, a store owner “is not . . . an insurer of the customer’s safety.” Id.
“Further, a shopkeeper is under no duty to protect business invitees from dangers
‘which are known to such invitee or are so obvious and apparent to such invitee that he may
reasonably be expected to discover them and protect himself.’” Id. (quoting Sidle v.
9
Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), syllabus). Thus, the “open-and-obvious
doctrine obviates the duty to warn and acts as a complete bar to any negligence claims.” Armstrong
v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5 (2003).
A. Ohio Law Previously Rejected Such Duties
No Ohio court had previously recognized the duties established by the Eighth District. This
was with good reason.
The Second District faced this question in Johnson v. Wal-Mart Stores East, L.P., 2014-
Ohio-2998, 12 N.E.3d 1262 (2nd Dist.). There, a Wal-Mart customer suffered a compound
fracture to her ankle from an incident with another customer operating a motorized shopping cart.
See id. at ¶ 6. The trial court granted summary judgment for Wal-Mart, and the customer appealed,
raising two arguments that are relevant here. See id.
First, the customer argued that Wal-Mart had a “duty to warn users of its motorized carts
of the dangers inherent in their use, and the duty to warn other customers in the store of the danger
represented by the use of the motorized carts.” Id. at ¶ 16. The Second District rejected this
argument. As the court explained, motorized carts at retail stores are ubiquitous, as demonstrated
by the fact that “[t]his Wal-[M]art store had six motorized carts.” Id. The Second District
rejected this duty to warn because the risk of a potential collision is obvious and “not a
hidden danger.” See id. at ¶ 18.
Second, the customer argued that Wal-Mart had a “duty of informing users of its motorized
carts of their proper use and operation.” Id. at ¶ 22. Even though Wal-Mart had admitted it did
not provide any instruction to the cart operator, the Second District rejected this duty because “no
cart-user would need to be instructed that she shouldn’t run into another customer while
10
using the cart—any reasonable customer would know that without having to be instructed.”
Id. at ¶ 23 (emphasis added).
The Second District’s decision was sound, and based on historic premises liability
principles applicable to Ohio retail stores concerning obvious dangers and reasonable care. The
Eighth District’s decision, however, did not even acknowledge these Ohio longstanding standards,
and refused to reconcile or distinguish the Johnson decision. As a result of the conflicting
standards among Ohio Appellate Districts, Ohio’s retailers—including the members of
several amici—now face significant uncertainty about what duties apply to them when they
provide these complimentary services to Ohio’s disabled citizens. This Court should articulate
a uniform standard by reversing the Eighth District’s decision and adopting the rationale
articulated by the Johnson Court.
B. The Overwhelming Majority of Other Jurisdictions That Have Considered This Issue Have Rejected the Duties Established By the Eighth District
The Second District’s well-reasoned decision in Johnson does not stand alone, but the
Eighth District refused to consider the overwhelming majority of decisions from other
jurisdictions rejecting the duties it established here. This is particularly notable because this
Court has often looked to other jurisdictions for guidance regarding the degree of care that an
ordinary and reasonable business owner owes business invitees. See, e.g., McKinney v. Hartz &
Restle Realtors, Inc., 31 Ohio St.3d 244, 248-49, 510 N.E.2d 386 (1987) (surveying the law of
other states to determine whether a landlord owes a duty of care to fence property adjacent to
railroad tracks); Cincinnati Baseball Club. Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1925)
(surveying the law of other states to determine the appropriate duty of care to protect spectators
from injuries from baseballs). Tellingly, decisions from other jurisdictions are consistent with
11
the Second District’s decision in Johnson, and reject the novel duties established by the
Eighth District.
1. Other Jurisdictions Hold There is No Duty to Warn or Protect
Courts from other jurisdictions have rejected attempts to establish a duty to warn
and protect customers from motorized carts driven by other customers due to the infrequency
of incidents and obviousness of the risk. See, e.g., Thomas v. Costco Wholesale Corp., No.
15370212015, 2017 N.Y. Misc. LEXIS 2217, *6-7 (N.Y. Sup. Ct. June 1, 2017) (“There is no
evidence that plaintiff’s injury was a foreseeable risk of the defendant’s actions in providing
motorized carts.”); Gruver v. Kroger Co., 54 So.3d 1249, 1253 (La. App. 2011) (no foreseeable
risk of harm where motorized cart was found to be in working condition following the accident).
2. Other Jurisdictions Hold There is No Duty to Train
Similarly, courts have rejected any duty to train customers to drive motorized shopping
carts because it is reasonable to assume the users know how they are operated. See, e.g., McManus
v. Brookshire Grocery Co., 25 So.3d 256, 2009 La. App. Unpub. LEXIS 722, at *7 (La. App. Dec.
16, 2009) (“It is equally unreasonable to expect the patrons to study the manuals before operating
carts. The motorized carts are designed for ease of operation.”) (emphasis added); see also
Reinhardt v. Great Atlantic & Pacific Tea Co., 829 So.2d 600, 602 (La. App. 2002) (“[E]ven
assuming that the grocery store should have given such instruction, its failure to do so is not
causally related to the accident.”) (emphasis added).
3. Other Jurisdictions Hold There is No Duty to Interrogate Customers on Their Disability
Finally, courts have rejected any duty of inquiry as to the necessity and ability of a
customer to utilize a motorized shopping cart because it is not reasonable to expect a store
“to bar patrons who have not scoured the instruction manual from operating the carts.”
12
McManus, 2009 La. App. Unpub. LEXIS 722, at *7; see also Davis v. Wal-Mart Stores, Inc., No.
3:12-cv-122, 2013 U.S. Dist. LEXIS 57739, *9 (M.D. Ga. April 23, 2013) (finding store had no
duty to ensure that customer had read instructions for motorized shopping cart); Eggelston v. Wal-
Mart Stores E., L.P., No. 3:05CV721, 2006 U.S. Dist. LEXIS 22518, *10 (E.D. Va. April 20,
2006) (“Even if Wal-Mart conducted screening of each cart driver, there is no evidence that
testing would have identified Wynn’s alleged unfitness.”) (emphasis added).
In sum, the new duties created by the Eighth District’s decision stand alone when compared
to cases in and outside of Ohio dealing with motorized shopping carts. The number of decisions
finding risks posed by motorized shopping carts to be obvious and rejecting the duties established
by the Eighth District demonstrate the need to reverse the Eighth District’s decision. From
amici’s perspective, uniformity is critical to setting policies on a company-wide basis, and
there is no reason for Ohio to be an outlier in this regard. See, e.g., Koprivec v. Rails-To-
Trails, 153 Ohio St. 3d 137, 2018-Ohio-465, 102 N.E.3d 444, ¶¶ 20, 28 (2018) (reversing prior
precedent that made Ohio an “outlier”).
II. The Eighth District’s Creation of New Duties For Retailers Who Provide Motorized Shopping Carts Has No Basis in Fact
The Eighth District’s decision establishing these new duties of care should also be reversed
because it has no basis in fact. This is largely because the Eighth District declined to undertake
any analysis of (1) industry standards, (2) what a reasonable storeowner would do, (3) whether
these duties would be effective, or (4) whether any risk posed by motorized carts is open and
obvious.
Consider, for example, the new duty to warn customers “about motorized carts driven by
other Giant Eagle customers.” Rieger, 2018-Ohio-1837 at ¶ 24. There is no evidence in the record
to suggest that a reasonable storeowner warns its customers about the risk of a collision. In fact,
13
as the other cases discussed above demonstrate, this is not the norm. Similarly, there is no evidence
in the record to demonstrate that such a warning would prevent accidents, including the accident
in this case. These same points are also true regarding the Eighth District’s new duty to train
customers “on how to drive the Giant Eagle motorized cart.” Id. at ¶ 27.
As to the new duty to prevent “an inexperienced or incompetent driver” from operating a
cart, id. at ¶ 26, there is no evidence in the record to suggest that a reasonable storeowner would
do this. To the contrary, as is explained below, retailers do not do this because it would
violate the Americans with Disabilities Act.
Beyond that, this case illustrates the unreasonableness of this new duty. The Eighth District
faulted Giant Eagle for not preventing the customer from operating the cart because “she was
diagnosed with dementia before December 2012.” Rieger, 2018-Ohio-1837 at ¶ 27. But
Ms. Kurka had (1) operated motorized carts more than 50 times without incident; (2) had a valid
Ohio driver’s license; and (3) was with her husband who did nothing to prevent her from operating
the cart. (Supp. 394, 400-401.) Nonetheless, the Eighth District has instituted a new duty whereby
a store employee without a medical degree is supposed to put customers through a battery of
cognitive and driving skills tests to determine whether they are able to operate a simple device.
That is patently unreasonable.
Setting aside the unreasonableness of the new duties, the Eighth District refused to evaluate
the obviousness of any risk of a collision with a motorized shopping cart. There is, of course, no
duty of a storeowner to warn of a risk of collision with a manual shopping cart or another customer,
even though such collisions do happen and can lead to injuries. See 62A Am. Jur. 2d, Premises
Liability, § 553 (2017) (“Thus, as a general rule, a store owner has no duty to take measures
to guard against the negligent or intentional misuse of shopping carts by patrons or other
14
parties.”) (emphasis added). This is because such risks are open and obvious, which “obviates
the need to warn and acts as a complete bar to any negligence claims.” Armstrong, 99 Ohio St. 3d
at 80. There is no basis to treat motorized carts any differently, particularly when there is no
evidence that any warning about collisions would prevent collisions from occurring.
III. The Eighth District’s Decision Should be Reversed Because it Conflicts With the Americans With Disabilities Act
Amici also urge reversal of the Eighth District’s decision because the new duty for a
retailer to determine a customer’s suitability to operate a motorized shopping cart conflicts
with the Americans with Disabilities Act (the “ADA”).
As explained above, the Eighth District held that, although Ms. Kurka had operated a
motorized shopping cart over 50 times without incident, Giant Eagle was negligent because it
failed to discover Ms. Kurka’s dementia or that she was an (allegedly) incompetent driver. Rieger,
2018-Ohio-1837 at ¶¶ 18, 25-28 (faulting Giant Eagle for not having “any policy to determine the
criteria required for a customer to operate a motorized cart”). This decision is so far reaching that
it can even be read to impose these duties on retailers as to customers with disabilities who bring
their own mobility devices into a store.
Under the ADA, however, Giant Eagle and other Ohio retailers are required to
“permit individuals with mobility disabilities to use wheelchairs and manually-powered
mobility aids . . . in any areas open to pedestrian use.” 28 C.F.R. § 36.11(a) (emphasis added);
see also 28 C.F.R. § 36.104 (defining “wheelchair” to mean a “manually-operated or power-
driven device primarily for use by an individual with a mobility disability for the main purpose
of both indoor and outdoor locomotion”) (emphasis added). In fact, the Department of Justice has
made clear that retailers must permit the use of motorized carts:
15
Under the new rules, covered entities must allow people with disabilities who use wheelchairs (including manual wheelchairs, power wheelchairs, and electric scooters) and manually-powered mobility aids such as walkers, crutches, canes, braces, and other similar devices into all areas of a facility where members of the public are allowed to go.
U.S. Department of Justice Civil Rights Division, ADA Requirements: Wheelchairs, Mobility
Aids, and Other Power-Driven Mobility Devices (Jan. 31, 2014), available at
www.ada.gov/opdmd.htm (accessed Jan. 22, 2019).
What is more, Giant Eagle was prohibited from asking Ms. Kurka “about the nature
and extent of [her] disability.” 28 CFR § 36.311(c)(1) (emphasis added). As the Department of
Justice has explained, this means a retailer “cannot ask people about their disabilities,”
including any “neurological disabilities.” U.S. Department of Justice Civil Rights Division,
ADA Requirements: Wheelchairs, Mobility Aids, and Other Power-Driven Mobility Devices (Jan.
21, 2014), available at www.ada.gov/opdmd.htm (accessed Jan. 22, 2019). Consequently, Ohio
retailers are prohibited from asking about an individual’s disability, and are not permitted
to prevent customers from using motorized carts out of a particularized concern that the
customer’s disability might render operation unsafe—which is exactly what the Eighth
District held Giant Eagle should have done here.
The Eighth District’s decision thus places Ohio retailers in an untenable catch-22 when it
comes to providing motorized shopping carts to their customers. To comply with the ADA, Ohio
retailers may not ask about a customer’s disability, but to comply with the Eighth District’s
decision they must conduct an inquiry into the extent and nature of the disability in order to
determine whether the customer can safely operate the motorized shopping cart. Given the
inherent conflict between the novel duty established by the Eighth District and the ADA, the new
duty should be rejected.
16
IV. The Duties Established by the Eighth District Should Be Rejected on Policy Grounds
Amici also urge reversal of the new duties established by the Eighth District on policy
grounds. If allowed to stand, these duties put Ohio retailers in the untenable position of complying
with the Eighth District’s new duties and violating federal law, including when it comes to
customers who utilize their own motorized shopping carts and scooters in a store. Federal law
requires retailers to accommodate customers with mobility disabilities. But the rule created by the
Eighth District would require Ohio retailers to ensure that these customers are both (1) properly
trained to operate the devices and (2) do not suffer from any disability that might make operation
of the device unsafe. This would be a clear violation of the ADA. It would be patently
unreasonable to require Ohio retailers to conduct cognitive and driver skills testing on their
customers.
Additionally, it is amici’s view that the onerous nature of the duties created by the Eighth
District will necessarily cause Ohio retailers to reconsider providing motorized shopping carts as
a courtesy, directly harming the approximately 832,500 current Ohio citizens who suffer from an
ambulatory disability, and the thousands of Ohio citizens who will develop a mobility impairment
in the future. The imposition of potential liability for merely providing motorized shopping
carts to people with disabilities will stand as a clear deterrent to the provision of motorized
shopping carts going forward. Likewise, requiring retailers to train customers and
determine the suitability of their customers to use motorized shopping carts will raise costs
and destroy any goodwill between retailers and their customers. Even if Ohio retailers wished
to continue providing this service, the duties created by the Eighth District would lead to the next
line of negligence cases that will test whether the warning was adequate, whether training was
17
adequate, whether the policing of the customers for disabilities was sufficient, and the like. The
Eighth District’s decision should be reversed.
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW NO. 2
Proposition of Law No. 2: Mere possibility of harm from the underlying tortious conduct is insufficient to establish the malice required for an award of punitive damages.
I. The Eighth District Has Established a New and Improper Standard for Malice and Punitive Damages
It is axiomatic that punitive damages are intended to “punish reprehensible conduct and to
deter its future occurrence.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S. Ct. 2997, 41 L.
Ed. 2d 789 (1974). The Ohio General Assembly has made it clear that punitive damages are not
favored and are to be limited to extraordinary circumstances. For example, the General Assembly
has set a high bar to clear in order to obtain punitive damages. First, a plaintiff must establish
malice. See R.C. § 2315.21(C)(1) (“[P]unitive or exemplary damages are not recoverable from a
defendant in question in a tort action unless . . . [t]he actions or omissions of that defendant
demonstrate malice or aggravated or egregious fraud . . . .”). Second, the plaintiff must meet this
standard with “clear and convincing evidence.” R.C. § 2315.21(D)(4) (“In a tort action, the burden
of proof shall be upon a plaintiff in question, by clear and convincing evidence, to establish that
the plaintiff is entitled to recover punitive or exemplary damages.”).
To establish actual malice, a plaintiff must prove by clear and convincing evidence that the
defendant acted with “[1] hatred, ill will, or a spirit of revenge, or [2] a conscious disregard for the
rights and safety of other persons that has a great probability of causing substantial harm.” Sivit
v. Vill. Green of Beachwood, L.P., 143 Ohio St.3d 168, 2015-Ohio-1193, 35 N.E.3d 656, ¶ 7 (2015)
(citation and internal quotation marks omitted). Put differently, “actual malice requires
consciousness of the near certainty (or otherwise stated ‘great probability’) that substantial
harm will be caused by the tortious behavior.” Motorists Mut. Ins. Co. v. Said, 63 Ohio St.3d
18
690, 698, 590 N.E.2d 1228 (1992) (emphasis added) reversed on other grounds by Zoppo v.
Homestead Ins. Co., 71 Ohio St.3d 552, 644 N.E.2d 397 (1994).
Additionally, the Ohio General Assembly has placed caps on punitive damages, and has
also limited multiple awards of punitive damages. See R.C. §§ 2315.21(D)(2), (D)(5). The public
policy of Ohio, as articulated by the General Assembly and this Court, is to confine punitive
damages to limited, extraordinary circumstances.
A. The Eighth District Established That Now Only The “Possibility of Harm” is Sufficient
When it comes to the provision of motorized shopping carts by a retailer, the Eighth District
created a new punitive damages standard, namely that mere evidence of a possibility of harm
from a motorized shopping cart is sufficient to support an award of punitive damages.
Rieger, 2018-Ohio-1837 at ¶ 17.
This Court had previously held that the mere “possibility or even probability [of harm] is
not enough” to support an award of punitive damages. Preston v. Murty, 32 Ohio St.3d 334, 336,
512 N.E.2d 1174 (1987); see also Motorists, 63 Ohio St.3d at 697 (“Therefore, it is evident that a
reckless actor, who only has knowledge of the mere possibility that his or her actions may result
in substantial harm, is not behaving maliciously.”) (citing Prosser & Keeton, The Law of Torts
(5th Ed. 1984) 212-214). The reason for requiring “near certainty” of such harm is because
anything less does not “incur that level of societal outrage necessary to justify an award of punitive
damages.” Motorists, 63 Ohio St.3d at 697-98.
The Eighth District’s decision has significantly lessened this standard. Rather than finding
that there was a “near certainty” of harm from Giant Eagle’s purported failure to comply with the
duties described above, it held that “117 prior incidents involving incidents where a Giant Eagle
customer was struck by a motorized cart at a Giant Eagle store demonstrates Giant
19
Eagle's knowledge of these types of incidents.” Rieger, 2018-Ohio-1837 at ¶ 47. That analysis
should not suffice.
There is nothing nearly certain about a collision occurring when only 117 incidents had
occurred in the 12 years prior, among what must have been tens of thousands of instances of
customers using motorized shopping carts without incident. Indeed, Ms. Kurka herself had safely
operated a motorized shopping cart between 50 and 100 times without incident.
Additionally, there is no evidence in the record to suggest that any of the 117 prior
collisions occurred because of a failure on the part of Giant Eagle. Put another way, the Eighth
District affirmed an award of punitive damages even though there is zero evidence that a single
prior failure of Giant Eagle to warn or train or interrogate a customer caused an incident. An award
of punitive damages should not stand on such flimsy reasoning.
B. The Eighth District Also Established That Insubstantial Harm is Sufficient
By finding that knowledge of 117 collisions was sufficient to establish malice, the Eighth
District also departed from this Court’s prior requirement that there be a near certainty of
“substantial harm.” Motorists, 63 Ohio St.3d at 698.
Again, the Eighth District focused on the fact that Giant Eagle had knowledge of 117 prior
collisions. Rieger, 2018-Ohio-1837at ¶ 44. The Eighth District ignored the fact that of these
collisions, only 21 incidents involved a customer who either received medical treatment, or said
they would seek treatment. (Supp. 470-648, 649.) Further, there was no evidence in the record
about whether the injuries were “substantial” as is required under Ohio law. (Supp. 470-648, 649.)
These incidents could have all involved moderate, minor, or insignificant injuries insufficient to
support an award of punitive damages. In other words, according to the Eighth District, knowledge
of 21 incidents of a customer suffering a minor injury, out of thousands and thousands of
20
interactions without incident, would be sufficient to support an award of punitive damages. This
new standard unmoors an award of punitive damages from the purposes of punishment and
deterrence and should be rejected.
C. The Eighth District’s Decision Could Have Far Reaching Impacts For Ohio Businesses
The reach and impact of this decision is significant in this case and beyond. As explained
above, incidents with motorized shopping carts occasionally occur. There is no reason that such
incidents are more likely to occur at Giant Eagle than at any other Ohio retailer. In other words,
other Ohio retailers are likely to have incurred motorized shopping cart incidents at a similar rate
as Giant Eagle. If the Eighth District’s decision stands, this new punitive damages standard could
apply to retailers across the state. For the reasons discussed above, this will make Ohio retailers
even more likely to discontinue offering motorized shopping carts to customers with disabilities,
thus resulting in harm to the hundreds of thousands of Ohio citizens with mobility problems.
Allowing the Eighth District’s decision to stand could also lead to awards of punitive
damages in countless other scenarios. It is easy to imagine some examples in the retail setting.
For example, collisions also occur caused by customers with hand-pushed shopping carts. Could
a number of reported insubstantial injuries with hand-pushed carts lead to a punitive damages
award if a customer is injured by a hand-pushed cart? Customers also occasionally drop products
from shelves. Could knowledge of dropped products that caused injuries lead to a punitive
damages award if stores fail to warn about the risk of dropping a product? The Eighth District’s
decision opens the door to these absurd possibilities and should be reversed.
21
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW NO. 3
Proposition of Law No. 3: A plaintiff must establish proximate cause to recover for an injury allegedly resulting from a failure to warn, train or interrogate with respect to an accident involving a motorized shopping cart.
I. The Eighth District’s Decision Improperly Eliminates the Proximate Cause Requirement From Motorized Shopping Cart Cases
Even if this Court affirms the Eighth District’s decision to impose a duty on Giant Eagle,
the decision nonetheless requires reversal because the Eighth District effectively eliminated any
need to establish causation in this case. Indeed, as even the Eighth District seemed to
acknowledge, there is no evidence that any breach of a duty by Giant Eagle was a proximate cause
of Ms. Rieger’s injury.
It has long been “rudimentary that in order to establish actionable negligence, one
must show the existence of a duty, a breach of the duty, and an injury resulting proximately
therefrom.” Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707, 710
(1984) (emphasis added). Thus, “it is essential for recovery that plaintiff prove by a
preponderance of evidence not only that defendant was negligent but also that defendant’s
negligence was a direct or proximate cause of plaintiff's injury.” Gedra v. Dallmer Co., 153
Ohio St. 258, 258, 91 N.E.2d 256, 258 (1950) (emphasis added). “[I]t is not sufficient for plaintiff
to prove that negligence of defendant might have caused an injury.” Id. (emphasis added).
If the Court finds that Giant Eagle had a duty, reversal is still required because there is no
evidence of proximate cause in this case. In fact, the Eighth District acknowledged that Ms. Rieger
had no evidence “as to what Giant Eagle could have done differently to prevent future incidents.”
Rieger, 2018-Ohio-1837 at ¶ 38. This was because there was no evidence about why the accident
occurred. Ms. Rieger did not know what happened because she had her back to the motorized cart.
(Supp. 156-57.) Additionally, Ms. Kurka, who was an experienced driver of motorized shopping
22
carts, told her husband that she did not know how the accident occurred. (Supp. 397-99.) In short,
there is not a witness or shred of evidence in the record to explain why the accident occurred.
Nonetheless, the Eighth District held that Ms. Rieger established proximate cause because
“Giant Eagle had knowledge concerning the injuries sustained by Giant Eagle customers from
motorized carts driven by other Giant Eagle customers.” Rieger, 2018-Ohio-1837 at ¶ 24. There
are several obvious problems with this holding.
First, there is no evidence to establish that any of the prior accidents were similar to this
accident, much less that any of the accidents occurred due to a breach of a duty by Giant Eagle.
The evidence of prior accidents was therefore irrelevant on this basis alone.
Second, even if one or more of the past accidents was caused by a breach of a duty by Giant
Eagle, that fact would not establish proximate cause in this case. In other words, the fact that Giant
Eagle’s alleged breach of a duty caused an accident in a prior instance does not make it more likely
that the same is true here. This is particularly so when we have no idea whether the accident in
this case occurred because of a malfunction, a medical issue, user error, an intentional act by the
operator, contributory negligence on the part of Ms. Rieger, or some combination of these
possibilities. Indeed, with no evidence of what caused the accident, there is also no evidence tying
that accident to Giant Eagle’s alleged breach of duty.
To illustrate this point, there is no evidence that Ms. Kurka’s dementia caused the accident,
particularly given the fact that she had operated motorized shopping carts more than 50 times in
the past without issue. But even assuming arguendo that Ms. Kurka’s dementia caused the
accident, there is also no evidence that a Giant Eagle employee (i.e., a store employee without a
medical degree) would have been able to determine that Ms. Kurka had dementia, and that the
dementia was so serious that no reasonable store employee would have allowed her to operate a
23
motorized shopping cart, thereby also overriding the judgments of Ms. Kurka and her husband that
she could safely operate the device.
As one court observed when confronting this issue, the proposition advanced by the Eighth
District relies on circular reasoning in that the very population that exclusively utilizes motorized
shopping carts—the elderly and disabled—is likely to have infirmities relating to reflexes,
responsiveness, vision, and the like:
In addition, Lewis has not offered any evidence that Johnson would have been denied a cart if some kind of driver investigation had been in place. It is obvious that elderly and disabled customers are the most likely to need or want motorized carts. The only facts that can be derived from the statement of material facts relevant to Johnson's ability to operate a motorized cart are that Johnson was 85 as of May 12, 2004, that she was legally blind in one eye, and that she had never experienced any prior problems operating a motorized cart. If those facts alone should have been sufficient to disqualify Johnson from receiving a cart, it is difficult to see how anyone old or infirm would qualify.
Lewis v. Hannaford Bros. Co., No. CV-06-113, 2007 Me. Super. LEXIS 145, *8 (Maine Superior
Court) (emphasis added). In other words, the Eighth District’s creation and application of this
duty will not only be an impossible task for retailers, but begs the question of whether retailers
have a duty to prohibit the elderly and disabled from utilizing motorized shopping carts in the first
instance.
In short, the Eighth District’s pure speculation that Giant Eagle caused Ms. Rieger’s injury
is insufficient under longstanding Ohio law. See e.g., Gedra, 153 Ohio St. at 258 (“In a negligence
action, it is not sufficient for plaintiff to prove that negligence of defendant might have caused
an injury . . . .”) (emphasis added). It also makes Ohio retailers the “insurer of the customer’s
safety,” at least when it comes to motorized shopping cart incidents, in contravention to Ohio law.
Paschal, 18 Ohio St.3d at 203-04. The Court should reverse the Eighth District’s decision on this
basis, just as other courts have done when confronted with no evidence of causation. See,
24
e.g., Johnson, 2014-Ohio-2998, at ¶ 23 (citing lack of evidence that driver “did not know how
to stop or steer the cart, or did not know how fast the cart went”); Eggleston, 2006 U.S. Dist.
LEXIS 22518, at **10-14 (citing lack of evidence “that testing would have identified [the
driver’s] alleged unfitness,” that the driver’s “Alzheimer’s disease affected her ability,” or
about “how the accident actually occurred”).
II. The Eighth District’s Elimination of a Causation Requirement for Motorized Shopping Cart Injuries Will Further Deter Retailers from Providing This Service to People With Disabilities
Amici are alarmed by the Eighth District’s elimination of any requirement of causation for
negligence claims involving the provision of a motorized shopping cart. Amici submit that this
imposition of liability based purely on the existence of prior accidents will have significant effects
on Ohio retailers who likely have incurred similar rates of incidents involving motorized and hand-
pushed shopping carts. Thus, the Eighth District’s decision ignores longstanding Ohio law and
creates yet another deterrent to the provision of motorized shopping carts to people with
disabilities. The harm faced by both people with disabilities and retailers mandates reversal of
this erroneous decision.
CONCLUSION
The Eighth District’s decision ignores longstanding Ohio law and stands alone to create
duties that have no basis in law or fact. These duties establish perverse incentives that will
discourage Ohio retailers from providing services that assist and encourage people with disabilities
to live active and independent lives. Amici respectfully urge this Court to reverse the Eighth
District’s decision, resolve the conflict with the Second District’s decision in Johnson v. Wal-Mart
Stores East, L.P., and bring Ohio back in line with its sister states.
25
Respectfully submitted,
/s/ Richard D. Schuster Richard D. Schuster (0022813) * Counsel of Record VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street, P. O. Box 1008 Columbus, Ohio 43216-1008 Telephone: (614) 464-5475 Facsimile: (614) 464-6350 [email protected]
Nathan L. Colvin (0087093) VORYS, SATER, SEYMOUR AND PEASE LLP 301 East Fourth Street, Suite 3500 Great American Tower Cincinnati, Ohio Telephone: (513) 723-4670 Facsimile: (513) 852-7842 [email protected]
Counsel for Amici Curiae The Food Marketing Institute, The Ohio Council of Retail Merchants, The Ohio Grocers Association, The Ohio Alliance for Civil Justice, The National Grocers Association, and The Ohio Chamber of Commerce
26
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing Merits Brief of Amici was filed
electronically with the Court and a copy sent by regular U.S. mail, postage prepaid, on this 22nd
day of January, 2019 to:
Roger H. Williams (0016430) Christina N. Williams (0093726) WILLIAMS, MOLITERNO & SCULLY, CO. L.P.A. 2 Summit Park Drive, Suite 235 Cleveland, OH 44131 [email protected] [email protected]
Scott D. Livingston MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 [email protected]
Counsel for Appellant Giant Eagle, Inc.
John J. Wargo, Jr., Esquire Thomas M. Wilson, Esquire Wargo and Wargo P.O. Box 332 30 Park Drive Berea, OH 44017 [email protected]
Counsel for Appellee Barbara Rieger /s/ Richard D. SchusterRichard D. Schuster (0022813)
Counsel for Amici Curiae The Food Marketing Institute, The Ohio Council of Retail Merchants, The Ohio Grocers Association, The Ohio Alliance for Civil Justice, The National Grocers Association, and The Ohio Chamber of Commerce
