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

“Do the carts have warning devices, some type of audible sound that alerts other customers that someone is approaching?”

Justice Donnelly, to Giant Eagle’s lawyer

“What could Giant Eagle have done to prevent that accident, short of not allowing carts at all?”

Justice French, to Rieger’s lawyer

On April 24, 2019, the Supreme Court of Ohio heard 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 was 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 the trial, the trial court allowed the jury to hear 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.

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. The trial court 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 unanimous decision, the Eighth District Court of Appeals found the evidence of nine 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 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.

Read the oral argument preview of the case here.

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 Propositions of Law Accepted for Review

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.

At Oral Argument

Arguing Counsel

Scott D. Livingston, pro hac vice, Marcus & Shapira LLP, Pittsburgh, for Appellant Giant Eagle, Inc.

Thomas M. Wilson, Wargo & Wargo, Berea, for Appellee Barbara Rieger

Giant Eagle’s Argument

Over 50 million Americans, including 1.6 million Ohioans, suffer from a disability.  As a public service, Giant Eagle and other stores across the country who can afford it, provide motorized shopping carts at no charge for their disabled customers, so that they can shop on their own and gain some additional independence. As proof that no good deed goes unpunished, Giant Eagle was hit with an award of 1.2 million dollars in punitive damages. That is worse than the infamous McDonald’s coffee case.

This case presents the question of whether this Court is going to impose on Giant Eagle and other stores which provide these motorized carts a duty to warn customers who use the carts that they shouldn’t run into anyone else in the store with the cart, and a duty to train cart drivers how to drive these very simple machines.  Signs were posted above the carts stating that safety was first for the company, and that any questions about how to use the carts should be directed to one of the team members in the store. The carts themselves have instructions permanently bolted onto the basket.

Before this accident, Ms. Kurka had successfully driven the same cart at the same Giant Eagle store from 50-100 times without any incident, including the week before the accident. Her husband testified that the two of them went shopping once or twice a week at Giant Eagle, and had done so for over a year, with his wife driving the cart without a problem. If he had thought she wasn’t capable of driving the cart, he would have done something.

As far as the 117 prior incidents, under the law of averages, if there are enough people in a store, someone is going to get hit by a pushcart, or by a motorized cart. It’s just going to happen. Maybe 20 people had enough of an injury to get some sort of medical treatment over 14 years in 200 stores –with millions of trips to the store. There’s  a better chance of winning the Ohio lottery than of getting hit by a motorized cart in a Giant Eagle store. We are talking about an infinitesimal risk weighed against the enormous social utility and benefit of providing these carts for people in society who most need our help.

In determining the question of duty here, this Court must weigh the practical difficulties. How could Giant Eagle train potential drivers or  make a decision on the spot about someone’s mental competency? Who’s going to want to take a driving test in a store before they can use one of these carts? Who’s going to want to bring a note from their doctor indicating that they can do this? Under federal law the store could not even sit down with a customer and ask about her disability. Giant Eagle would be in very big trouble with the feds if it did that.

If there is any duty here, wouldn’t it be Ms. Kurka’s? To let the store know if she was capable of driving the cart? In addition to duty, there must be causation. Just because a person suffers from an infirmity doesn’t mean the accident was caused by that.  There was absolutely no proof of causation in this case.

As for the notion of providing the carts with some kind of warning devices, this isn’t a products liability case.  Giant Eagle just bought these carts. It didn’t build them.

What’s at issue here is whether these carts are going to be available in Ohio. If there is a potential for punitive damages, Giant Eagle should reconsider providing these carts. No other court in the country that has dealt with these issues has found there to be a duty in this circumstance. They all point out how impossible and impractical it would be, and how much utility there is from these devices.

This case should never had gotten to a jury. The trial court did not properly exercise its gatekeeping function because as a matter of law there was no causation and no duty to begin with.

Rieger’s Argument

Giant Eagle is attempting to use the ADA as a shield to protect it from its liability and the duties that it owes to its business invitees. Allowing Giant Eagle to use the ADA as a shield would violate the very purpose of the Act, which is to protect people.

All of this gets back to Giant Eagle’s duty here. Giant Eagle knew of 117 prior accidents with motorized carts in its stores, and yet it did nothing at all about this. That’s one incident a month for 9 years straight. Giant Eagle looks at that data and makes no attempt to address the problem.  They had a duty to protect Ms. Rieger from problems with the motorized carts. Ms. Rieger was standing still, doing nothing, when she was hit with the motorized cart. She certainly wasn’t expecting someone to come along and hit her with a motorized cart.  The longstanding rule in Ohio is that the owner of the store has a duty to protect its business invitees from acts of third parties. The previous accidents, their foreseeability, the presence of business invitees all come together to create a duty on the part of Giant Eagle. They could have made a determination to show someone how to drive the carts, or whether a person with dementia should even be driving them. If Giant Eagle does nothing, doesn’t train the drivers or ask follow-up question, but just lets someone get on and hit somebody and hurt somebody, then Giant Rage has violated its duty to that business invitee. There was a duty here, it was breached, and it caused this accident.

What Was On Their Minds

Use of the Carts

Placing the carts with or without training in the hands of someone who is incapable of operating it is an issue, commented Chief Justice O’Connor. My understanding is there was no screening done. A customer would just come in and secure one of the carts and use it.  Is that correct? No driver’s license needed? Is there a movement to ban these carts from the stores?

Even if Giant Eagle did have a training session on how to drive its carts before using them, is it the store’s position that wouldn’t necessarily have changed this situation, asked Justice Stewart?  That accidents happen regularly, even with cars? Regardless of what Giant Eagle could have done, it would not have necessarily avoided this particular collision? (store’s answer-absolutely right.) Does a person have to be a certain age to use them? What was the duty for Ms. Kurka here? She had used these carts many times before, so how would training or someone coming and asking her if she knows her name– what could Giant Eagle have done, to possibly prevent this accident?

Defective Product?

All grocery stores have shopping carts, noted Justice Donnelly. If Giant Eagle were to find out that for some reason the great majority of them were defective, and the wheels were coming off, wouldn’t the store have an obligation to do something about that? If carts were defective, shouldn’t other patrons be warned about them coming down the aisle? To use extra caution?

Giant Eagle’s Duty

Plaintiff keeps insisting that Giant Eagle had a duty to do something, noted Justice Stewart.  What is that something? If Ms. Kurka had been trained, for mental capacity and ability to drive, and this exact same thing happened, would that be ok?

How could Ms. Rieger have been protected from the motorized carts, asked Chief Justice O’Connor? Aren’t these open and obvious? Doesn’t everybody that goes to a grocery store these days realize, you walk in, get your cart, you see the motorized carts for people who need them, you know they are in the store. You then make the decision to go into that store and shop in a store that allows motorized carts. They are open, they are obvious, visible. Is Ms. Rieger claiming she was unaware that motorized vehicles were in the store where she was shopping?

If I’m standing at the deli, looking at the deli case, and someone comes up behind me and hits me with their cart, how could that have been prevented, asked Justice French?

I’m still trying to figure out what this duty is, said Justice DeWine. Have some kind of drivers test? Some kind of mental test?

Was there any expert testimony presented in this case, asked Justice Donnelly?

Causation

In this case, Ms. Kurka had driven the cart a number of times, noted Justice DeWine.  A plaintiff has to show not only violation of duty, but also causation. What was the evidence of causation in this case? Ms. Rieger has to show that Giant Eagle violated a duty and the violation of that duty caused the accident. So, I’m not quite sure what Ms. Rieger thinks Giant Eagle should have done? With this woman driving who had done it multiple times before, how did that cause the accident? What’s the evidence of causation? With causation, a plaintiff must show what Giant Eagle could have done that would have prevented the accident. Ms. Kurka already knew how to drive. Should there be  a test for her? A licensing? What more could have been done in this particular case? This is pretty much torts 101, he noted. To show negligence you have to show the violation of a duty and that the violation of the duty caused the accident. So in this case what should Giant Eagle have done to this particular driver, and how would that have prevented this accident? If Ms. Rieger can’t explain that I don’t know how she can prevail, he said to Rieger’s counsel.

So we don’t know whether Ms. Kurka’s lack of training or her disability caused her to run into Ms. Rieger, asked Justice Stewart?

Disability

Wouldn’t a cart operator who was suffering from dementia presumably be incapable of asking for directions or thinking that they have to second guess their own capacity, asked Chief Justice O’Connor? And how would the store know Ms. Kurka had dementia? She’s a frequent shopper, there every week, she and her husband go shopping, she operates this vehicle. In fact didn’t she continued to operate it successfully after she had this incident?

How is Giant Eagle attempting to use the ADA as a shield, asked Justice Stewart? Isn’t the ADA geared to making things more accessible for those with disabilities? Why isn’t this just an accident that happens every day? How is this any different than someone pushing a pushcart and running on the back of your heels? Why isn’t this something that just happens in a store in the normal course of having a bunch of people there?

The 117 Prior Incidents

Doesn’t the record show that Giant Eagle was put on notice 117 times before this particular incident of other incidents not necessarily exactly like this but involving interactions with these motorized vehicles and patrons in the store that Giant Eagle was obligated to create a safe atmosphere for, asked Justice Donnelly?

Despite 117 incidents involving these carts across 500 stores, there were no modifications, noted Chief Justice O’Connor. Customers weren’t made to sign a statement saying they are competent to drive and they know how to do it and take caution? Was deciding to do nothing really a business decision? Just the cost of doing business? We’re going to have these little accidents and they’re going to be dealt with and we’re just going to move on? Later she commented that the 117 prior incidents had to be put into context- 200 stores with 10’s if not hundreds of thousands of customers, frequenting those stores. Not 117 incidents at that store.

How It Looks From The Bleachers

To Professor Emerita Bettman

I didn’t care much for either argument. Both suffered from a little too much righteous indignation. Mr. Livingston in particular was far too obstreperous for my appellate taste. I mean he started by arguing the case was worse than “the infamous MacDonald’s coffee case.” C’mon. Justice Stewart immediately called him out on that. And later he argued there was a better chance of winning the Ohio lottery than being hit by a motorized cart.  Save it for the jury. He consistently seemed to irritate the Chief, who asked him to stop interrupting so she could ask the questions. He might have been wiser to spend some of his indignation on the open and obvious doctrine.

Nevertheless, I think Giant Eagle is going to win this case because Mr. Wilson never successfully answered the question asked by several of the justices—what was the duty here that was breached?  He never did define it. Despite his stylistic overreach, Mr. Livingston has a very valid point.  Was Giant Eagle supposed to provide a driver’s test? Have store employees figure out customers’ mental capacity?  Rieger certainly had a garden variety negligence action against Kurka.  But to me, even with my notorious plaintiff’s heart, not against Giant Eagle.

While Justice DeWine was very insistent that there was no proof of causation in the case, I’m stuck on duty.  I laughed out loud when Justice DeWine said it was torts 101 that to prove negligence you have to show the violation of a duty and that the violation of the duty caused the accident, I’ll bet every one of my former students could recite that in their sleep. Here, even the 117 prior incidents had to be put into perspective as the Chief noted—tens or hundreds of thousands of customers over many years in many stores.  Plus Kurka herself had driven the carts before, 50-100 times without incident.

To Student Contributor Mark Tassone

Giant Eagle led with its strongest argument: public policy. And, in my own opinion, the argument resonates. However, counsel for Giant Eagle’s bombastic speech did not seem appropriate for the forum.

Giant Eagle fielded an excellent response to the contention that the motorized cart should have a bell or a buzzer. Such a requirement would be a product defect. And liability under that scenario would be directed at the manufacturer of the motorized cart, not at Giant Eagle.

However, I felt as if any positive effect of Giant Eagle’s argument likely fell on deaf ears due to its counsel’s outlandish presentation to the Court. It was more a tirade than an oral argument. And, given the bench’s difficulty in asking Giant Eagle questions, I fear this presentation harmed the argument.

Rieger’s argument seemed easier to digest. However, the Court peppered Rieger with questions. Wasn’t the risk open and obvious? What could Giant Eagle have done short of not allowing the motorized carts? What was the evidence of causation? How would Giant Eagle know Kurka had dementia? Rieger fell short on answers.

Despite Giant Eagle’s poor performance, I get the sense that the Court is very concerned about the danger of upholding the lower court’s decision. Questioning during rebuttal only further fortified that belief. The Court wants to put this rabbit back in the hat.

Personally, I don’t like this case. I have long felt that the Eighth District’s decision did not state what Giant Eagle claims. However, push has come to shove. And I think the Court will still bite the hook on this issue and rule in Giant Eagle’s favor.