Update: On September 19, 2019, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read an analysis of the oral argument here.

On April 24, 2019, the Supreme Court of Ohio will hear oral argument in Barbara Rieger v. Giant Eagle, Inc., 2018-0883. The issue in the case is whether the Eighth District Court of Appeals created new duties for providers of motorized shopping carts, redefined malice for punitive damages, and imposed strict liability on providers of motorized carts. The case will be argued at Geneva High School in Ashtabula County as part of the Court’s off-site program.

Case Background

On December 8, 2012, Ruth Kurka (“Kurka”), a customer at a Giant Eagle supermarket suffering from early stage dementia, drove a motorized shopping cart into a regular shopping cart being used by another customer, Barbara Rieger (“Rieger”). Rieger was then struck from the side by her own cart, knocking her against a counter and then to the floor. There were no witnesses to this accident, and after the accident Kurka was unaware of what had happened.  Rieger suffered minor lacerations, bruising, and a cervical sprain and strain. Her medical expenses amounted to $11,511.

Rieger filed suit against Kurka and Giant Eagle, Inc. (“Giant Eagle”). Kurka died before trial, and her estate settled with Rieger for $8500.  The case proceeded against Giant Eagle on claims of negligence and negligent entrustment. Rieger argued Kurka had been diagnosed with dementia before the accident, and Giant Eagle was negligent in allowing disabled customers to use the motorized carts.  Rieger also sought punitive damages. At trial, Cuyahoga County Common Pleas Court Judge John D. Sutula admitted evidence of 179 incidents involving motorized carts at Giant Eagle stores, of which 117 occurred before Rieger’s accident, as the basis for a fact question on whether Giant Eagle acted with actual malice.

On October 6, 2016, the jury returned a verdict in favor of Rieger in the amount of  $121,000 in compensatory damages and $1,198,000 in punitive damages. In a post-trial motion, Rieger argued that the statutory cap on punitive damages was unconstitutional as applied to her case. Judge Sutula agreed, and entered judgment on the jury’s verdict in the amount of $1,310,500—the amount of compensatory damages awarded reduced by the settlement with the Kurka Estate, plus the uncapped punitive damages awarded by the jury. Giant Eagle appealed.

The Appeal

In a decision by Judge Mary Eileen Kilbane, joined by Judges Frank D. Celebrezze, Jr., and Larry A. Jones, Sr., the Eighth District Court of Appeals found the evidence of  9 years of corporate knowledge of 117 accidents with these carts that occurred before the one in this case, combined with a lack of training on the use of the carts or who should be allowed to use them was sufficient evidence for a jury determination on negligence and punitive damages. The appeals court also found that evidence of the other 62 incidents that occurred after the one in this case should not have been admitted, but was harmless error. Finally, the appeals court reduced the punitive damages to $242,000, finding the statutory punitive damages cap to be constitutional as applied. Giant Eagle appealed.

Votes to Accept the Case

Yes: Justices Kennedy, French, Fischer and Former Justice DeGenaro

No: Chief Justice O’Connor, Justice DeWine, and former Justice O’Donnell

Key Statutes and Precedent

R.C. 2315.21 (D)(2)(a) (Capping punitive damages awarded in a tort action at twice the amount of compensatory damages awarded against a particular defendant.)

28 CFR 36.311 (Mobility devices under the Americans with Disabilities Act (“ADA”).

Gulla v. Straus, 154 Ohio St. 193 (1950) (Negligent entrustment requires actual knowledge of incompetence.)

Holdshoe v. Whinery, 14 Ohio St.2d 134 (1968) (An owner of land owes invitees “a duty to use reasonable care to prevent negligent acts of third parties which could harm the [invitee] where the [owner] knows or should know that such acts are likely to occur.”)

Preston v. Murty, 32 Ohio St.3d 334 (1987) (“[A]ctual malice, necessary for an award of punitive damages, is (1) that state of mind under which a person’s conduct is characterized by 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.”)

Motorists Mut. Ins. Co v. Said, 63 Ohio St.3d 690 (1992) (“[A]ctual malice requires consciousness of the near certainty (or otherwise stated “great probability”) that substantial harm will be caused by the tortious behavior. . . . [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.”)

Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552 (1994) (Finding punitive damages justified where an inadequate investigation took place.)

Armstrong v. Best Buy Co., Inc., 2003-Ohio-2573 (“Where a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises.”)

Arbino v. Johnson & Johnson, 2007-Ohio-6948 (R.C. 2315.21 is constitutional on its face.)

Johnson v. Wal-Mart Stores East, L.P., 2014-Ohio-2998 (2nd Dist.) (finding no duty to warn of the inherent dangers of motorized carts.)

Giant Eagle’s Argument

The Eighth District incorrectly created entirely novel tort duties by requiring Giant Eagle to (1) warn Kurka about the dangers of operating the motorized cart, (2) train Kurka how to operate the motorized cart, and (3) interrogate Kurka about her competency to operate the motorized cart. Other courts have rejected such duties. These duties create a conflict with the Second District’s decision in Johnson, run contrary to prior Supreme Court precedent, and cannot be reconciled with the Americans with Disabilities Act (“ADA”). If these duties are upheld, they will stifle the accessibility of disabled persons to motorized carts.

The risks of motorized carts are open and obvious—a defense under Supreme Court of Ohio precedent. The Second District applied this doctrine to motorized carts and recognized that the risk of collision with a motorized cart was open and obvious. Common sense dictates that Rieger and Kurka should consciously try to avoid collision. By contrast, the Eighth District wants store owners to ring an alarm bell any time a motorized cart is used.

Each of the motorized carts at Giant Eagle contained operational safety instructions.  Safety instruction signs were also posted on an overhead sign where the carts were kept. Kurka herself had driven these carts many times before. Despite Kurka’s ample experience driving a motorized cart, the Eighth District expected Giant Eagle to interrogate Kurka to determine whether her dementia made her incompetent to drive. It also determined that Giant Eagle needed to provide training for the motorized carts, despite the fact that signs and instructions were posted. The Eighth District provided no explanation for its creation of this new duty. Other courts have held no duty to guard against the negligent misuse of shopping carts. Further, Ohio precedent creates no analogous duty for sellers and renters of other motorized vehicles.

The burden to train and question customers will create a scheme in which everyone loses. Stores will risk alienating customers if they cannot accept the increased cost of motorized carts—the cost created by training and questioning customers. Further, people with disabilities face the possibility of not having access to motorized carts at grocery stores. This duty also assumes that shoppers will be willing to submit to questioning and training.

No court that has addressed this issue has ever found the duties created by the Eighth District. Giant Eagle’s instructions, including the advisement to ask an employee for help if needed, would be acceptable anywhere else.

Following the Eighth District’s duty to interrogate customers would violate the ADA. Such questions are forbidden. In fact, the ADA requires that disabled persons using motorized wheelchairs and scooters have equal access to all parts of the store.

Punitive damages are inappropriate in this case. Punitive damages are not intended to compensate an injured party. They are closer to a fine for particularly reprehensible conduct. Because of this, punitive damages require proof of actual malice by clear and convincing evidence. To meet this high hurdle, the injured party must prove that the tortfeasor possessed a near certainty that substantial harm will result from its conduct. The Eighth District’s decision has wrongly reduced this hurdle, enabling punitive damages for simple negligence.

The evidence used at trial fails to show that Giant Eagle possessed a near certainty that substantial harm would occur. Thus there was no proof of actual malice, and Rieger’s injuries, while real, were relatively minor. No punitive damages should have been awarded in this case at all. Of the 179 motorized car incidents allowed into evidence, 62  occurred up to three years after Rieger was struck, and there was no evidence that these incidents were causally similar to Rieger’s.

Actual malice requires a knowing breach of a duty. However, Giant Eagle was not aware at the time of the accident that it owed any duty to warn, train, or interrogate its customers prior to the use of a motorized cart. No precedent existed to create such a duty.

Requiring Giant Eagle to inquire into the disabilities of its customers would violate the ADA. The Eighth District’s holding would eliminate the need to prove actual malice for punitive damages. Further, the Eighth District’s decision contradicts the punitive damages goals of punishment and deterrence, because there was no way for Giant Eagle to prevent future accidents. Finally, by providing these carts to its disabled customers, Giant Eagle was performing a public service.

The Eighth District, in essence, imposed strict liability on motorized cart accidents. Yet, in this case, causation itself is an issue—no one knows precisely what drove Rieger’s cart into her. Other courts of appeals have upheld summary judgment to defendants in similar situations due to a lack of witnesses to prove causation. Further, strict liability is not appropriate where, as here, there is neither an inherently dangerous activity nor a product defect—issues that have not been raised in this case.

Rieger’s Argument

It was stipulated in this case that Ruth Kurka had never been trained on how to operate the motorized cart, that Giant Eagle provided no instructions on how to do so, and that Kurka had been diagnosed with dementia before this accident. Additionally, one of Giant Eagle’s representatives testified at trial about the 179 incidents, which Giant Eagle’s own counsel referenced during closing argument. Finally, Giant Eagle made no objection to the jury instruction on punitive damages. What Giant Eagle bemoans as a miscarriage of justice is simply a negligence trial gone wrong.

Giant Eagle overstates the Eighth District’s holding. It did not create new duties. It simply recognized longstanding existing duties owed by owners of premises to invitees, including injuries caused by third parties.

Giant Eagle’s use of the open and obvious doctrine as a defense is misplaced. Application of the doctrine is a fact question for the jury. Giant Eagle did not request a jury instruction on the open and obvious doctrine. Nor was an objection made when the jury instructions were provided. Further, Giant Eagle failed to raise the issue in its motion for a directed verdict. Thus, the issue has been waived.

No evidence exists on the record that Kurka is a disabled individual to whom the ADA applies. Giant Eagle is trying to use the ADA as a smoke screen to hide from the actual issue: its responsibility to protect Rieger. Furthermore, Giant Eagle can still offer motorized carts while complying with the ADA by including better instructions.

The injuries to Rieger were foreseeable. Giant Eagle had actual knowledge in a database of 117 incidents involving motorized carts before this accident. Despite this knowledge, dating back to 2004, Giant Eagle did nothing to protect a business invitee from the negligence of another customer. Thus, Giant Eagle owed Rieger a duty to protect against motorized cart injuries. It failed that duty. All of the elements exist in this textbook negligence case.

The Eighth District did not create any new or novel theory requiring retailers to undertake new duties to avoid liability. The Eighth District’s decision does not create an obligation to train and interrogate prospective cart drivers. Giant Eagle is mischaracterizing the issue. Giant Eagle’s lack of training and instruction was a factual determination made at trial. However, the court of appeals made no such mandate.

The Eighth District was correct to uphold punitive damages in this case because actual malice was demonstrated. The knowledge of the 117 prior incidents was sufficient to demonstrate a likelihood for injury. However, for punitive damages, knowledge is not enough. There is also the question of what Giant Eagle did with this knowledge: nothing. Additionally, Giant Eagle failed to investigate the accident adequately, identifying no witnesses beyond Rieger and Kurka, and failed to cooperate with Rieger when she reached out for information—all of which, taken together, provide a sufficient basis for punitive damages.

While Giant Eagle contends that there was no substantial harm to Rieger, Rieger’s testimony and her chiropractor’s testimony demonstrated that she was a changed person after the accident. It caused her to age prematurely. This testimony was unrebutted.

Giant Eagle’s attempt to turn this basic negligence case into its self-praised protection of its disabled customers must be rejected and the court of appeals decision affirmed.

Amici in Support of Giant Eagle

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) are trade organizations that represent Ohio and national retailers.

1,617,400 citizens of Ohio are disabled (14.1 % of the population). Roughly half of these citizens suffer from an ambulatory disability. These numbers will only increase in the upcoming years.

Mobility devices contribute significantly to the independence and quality of life of disabled persons. They also help to alleviate the burdens and responsibilities of caretakers. Retailers recognize the societal benefit which mobility devices offer, choosing to offer them as a courtesy to their customers.

The duties created by the Eighth District have no foundation in law. The existence of a duty is a legal question. And no duty exists for dangers which are obvious and apparent. The Second District’s Johnson decision reiterates this point. A store can expect a reasonable customer to recognize the danger of driving a motorized cart into another person. Furthermore, other jurisdictions support the Johnson decision and stand in stark contrast with the Eighth District. These courts do not find a duty to warn, protect, train, or interrogate customers.

This Court should join other jurisdictions so that companies can establish policies that can uniformly comply with the law. In establishing a duty, the Eighth District should have considered what a reasonable store owner would have done. The record does not address this question. But case law demonstrates that a reasonable store owner would not warn customers about the dangers of impacting others with a motorized cart because the danger is obvious.

Denying access to motorized carts to inexperienced or incompetent drivers would violate the ADA. Further, this duty is unreasonable. Store managers are not qualified to assess disabled customers’ competence. Additionally, the ADA requires equal access to store areas by customers using motorized carts.

The Eighth District’s interrogation duty is also forbidden by the ADA. Thus, the Eighth District created a duty in direct conflict with federal law. The untenable nature of this duty becomes apparent when applied to customers who supply their own mobility devices. The ADA prevents retailers from banning these devices and it also prevents retailers from inquiring about customers’ disabilities. Therefore, this duty will absolutely deter businesses from supplying motorized carts due to the potential liability involved.

Moreover, the harm posed by motorized carts was not substantial. Of the 117 prior incidents, only 21 required medical treatment. Nor does the record establish that Rieger’s injuries were substantial under Ohio law.

The lower standard for malice—mere possibility of harm—created by the Eighth District will open the floodgates to punitive damages where they do not rightly apply. The effects will be felt far beyond cases involving motorized carts.

Finally, proximate cause has not been proven in this case. Rieger does not know what happened because her back was turned. Kurka did not know what happened either. The record contains nothing about the cause of the accident. And the contention that Kurka’s dementia played a role in the accident is pure speculation.

Giant Eagle’s Proposed Propositions of Law

Proposition One

For stores that provide motorized carts to disabled shoppers, the Eighth District created entirely new tort duties owed by them—a duty to warn the user about the obvious danger of a pedestrian-cart collision, a duty to train disabled customers how to operate a simple motorized car, and a duty to interrogate customers to determine whether their disability disqualifies them from operating a cart.

Proposition Two

The Eighth District has created a new standard for malice that makes the mere possibility of harm from the underlying tortious conduct—no matter how improbable—sufficient for an award of punitive damages.

Proposition Three

For accidents involving motorized shopping carts, the Eighth District created a new strict liability standard for stores by (a) eliminating the need to prove that the store’s negligence caused the accident and (b) basing that liability solely on dissimilar motorized shopping cart accidents thereby rendering the store an insurer for such accidents.

Amici’s Proposed Propositions of Law

Proposition 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.

Proposition 2

Mere possibility of harm from the underlying tortious conduct is insufficient to establish the malice required for an award of punitive damages.

Proposition 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.

Student Contributor: Mark Tassone