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Black (and Blue) Friday – Tort Claims and Defenses for Shopper Injuries

An online search for Black Friday shopping injuries returns a number of sites devoted to cataloguing the unfortunate regularity with which shoppers and store employees sustain physical injuries the day after or, more recently, the night of Thanksgiving. Ignoring the social ramifications of people literally beating one another to a perceived deal, these incidents raise questions as to potential liability on the part of the stores which promote Black Friday sales and legal defenses to injury claims by their patrons. The concept of storekeeper or premises liability is broad and, like many legal issues, relies heavily on the specific circumstances in a given case. However, there are general principles that can assist in pursuing or defending such cases.

In California, premises liability is a type of negligence claim involving liability for dangerous conditions that cause a patron-plaintiff to suffer injury. Relevant jury instructions are found in the 1000 series of the Judicial Council Civil Jury Instructions or “CACI.” To prevail on a claim the plaintiff must prove the following: (1) that the defendant owned, leased, occupied or controlled the property; (2) the defendant was negligent in the use or maintenance of that property; (3) the plaintiff was harmed; and (4) the defendant’s negligence was a substantial factor in causing that harm. (CACI 1000.) Thus, an individual or entity can be held responsible for premises liability without owning or leasing the property at issue (like a “pop-up” store), and the owner or leasee may be liable merely by allowing others to control or use the property.

An important caveat to premises liability is that a property owner is not the insurer of public safety, so they are not liable for all injuries to their patrons. (See e.g., Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 679.) Instead, property owners must maintain their stores in a “reasonably safe condition” and, in addition to fixing or warning of dangerous conditions, they must take steps to secure the property against “foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” (Ann M. at 674.) In regard to Black Friday, an owner’s notice of a dangerous condition may include having its shoppers, many of whom have waited for hours, rush into the store once the doors are opened in order to be the handful to get a particular item before it sells out. In light of the publicity surrounding Black Friday and related injuries to shoppers, it can be difficult for a store owner to successfully argue that they should not have reasonably known about the risk of harm. Indeed, the store owner may be viewed as creating or increasing that risk by requiring shoppers to wait until a set time and limiting the deals at issue.

On the other hand, it can also be argued that the risk of harm was not created by a condition on the property, but rather specific individuals who acted violently in what would otherwise be a safe environment. CACI 1005 addresses a store owner’s liability for the negligent, intentional or criminal conduct of others, and provides that the owner must use reasonable care to protect its patrons from another person’s harmful conduct if the owner can reasonably anticipate the conduct. Foreseeability of potential crime is a question of law, so the court will decide whether the owner in fact owed a duty to protect patrons from the specific crime at issue in the case. (See e.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, fn. 6.) In broad terms, a duty exists if there is evidence of recent similar criminal acts that the owner knew or should have known about, including crimes in the surrounding area even if they are not on the premises. (See, Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 240.) Thus, premises liability cases are often suited for summary judgment or adjudication on the issue of whether the store owner owed a duty to protect its patrons from specific criminal acts, like shoppers hitting or trampling others. Although a store owner cannot foresee whether one shopper is more likely to be combative than another, if their store has had prior similar problems then the owner should appreciate the risk of harm and be charged with taking steps to guard against it, like allowing online purchases at the same discounts or providing tickets to waiting shoppers so there is no rush for specific items.

CACI 1001 provides a non-exclusive list of seven potential factors for a jury to consider in determining if the defendant either used reasonable care or breached a duty of care to the plaintiff. As such, once a duty of care has been established the determination as to breach is fact-intensive and unlikely to be determined through summary judgment. Ultimately, the jury will use their common sense to make a final determination, sometimes guided by “industry standards” but more often by premises liability/safety expert testimony. Even if the plaintiff proves that the store owner breached the duty of care, the owner may assert various defenses to ultimate liability or to reduce their percentage of fault, including comparative fault by the plaintiff and whomever hurt them, assumption of risk or consent to the dangerous conditions, and lack of causation between the owner’s actions and the plaintiff’s injuries. Discovery is vital in premises liability cases since the specific facts usually control the final result. Ideally, the instances of Black Friday violence will be reduced each year through better planning by owners and more care by patrons, including earlier sales periods and online shopping options. Black Friday will, however, continue to be a popular unofficial holiday due to the excitement and savings involved, so shoppers and store owners must be wary of the risks and take reasonable steps to avoid them.

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