Have you ever been really impressed by marketing displays constructed at your local store, where industrious employees create displays of commerce only slightly less impressive than the Taj Mahal?
Well, Joyce Henderson may have felt that way before she broke her hip falling before a marketing temple of stacked cantaloupes at her local supermarket.
Adding insult to injury, Ms. Henderson lost again in this week’s case of the week as the U.S. District Court for the Eastern District of Oklahoma grappled with the weighty issue of whether cantaloupes are the legal equivalent of inflatable sharks for premises liability purposes.
Cantaloupes of Doom
The story of Henderson v. Harp’s Food Stores, Inc., began on a fine June day in 2009 when Ms. Henderson visited the Harp’s Food Store in Fort Gibson, Okla. Harp’s employees had created a display of cantaloupes, which was actually a giant octagon of wholesome, fruity goodness.
Harp’s displayed the cantaloupes in large cardboard containers resting on a wooden pallet. The cardboard containers were roughly square in shape with the corners slightly recessed, forming the muskmelon octagon.
Ms. Henderson admitted spotting the pallet beneath the pile, and even considered the pesky pallet’s potential as a pitfall. Nevertheless, she plowed ahead.
While examining one of the succulently sweet cantaloupes, Ms. Henderson’s foot caught on the pallet, and she hurt her hip hitting Harp’s hard floor.
The stage was now set for Ms. Henderson and Harp’s to debate the jurisprudence of cantaloupes vis-à-vis inflatable sharks.
Ms. Henderson sued Harp’s in Oklahoma state court in a tort action, alleging Harp’s was negligent in its dangerous display of the killer cantaloupes and in its negligent failure to warn customers of its alleged fruity booby trap.
Harp’s removed the case to federal court and filed a motion for summary judgment, arguing it was not liable because the exposed cantaloupe pallet was an open and obvious condition.
Generally, under Oklahoma premises liability law, which applied even though the case was in federal court, businesses are not liable for damages sustained from these so-called open and obvious conditions. However, there is a possible exception in the law for conditions or defects visible but unseen by a plaintiff.
Ms. Henderson and Harp’s battled over the case law. For instance, both parties cited the Oklahoma Supreme Court case of Phelps v. Hotel Mgmt., Inc., where an unsuspecting patron hit her head on a decorative glass bowl that protruded into the seating area of a hotel lobby.
Sure, the thing was open and obvious in the literal sense, but the court in Phelps held a reasonably prudent person might not have noticed the risk of injury from the protrusion of funky art into the seating area and—for the condition to be “open and obvious” as a matter of law—the potential for injury must also be noticeable.
The court in Henderson rejected Ms. Henderson’s reliance on Phelps and another court decision, Zagal v. Truckstops Corp. of Am., a case where things went horribly awry in the aisle of a truck stop. The court held those cases did not apply to Ms. Henderson’s case of the killer cantaloupes because—not only did Ms. Henderson see the open and obvious collection of cantaloupes—she knew it posed possible danger.
However, all hope was not lost for Ms. Henderson. It was time for her lawyers to launch a legal shark attack.
But could an inflatable shark really save Ms. Henderson’s case?
Shark Tale
Ms. Henderson’s attorneys cited the Oklahoma Court of Civil Appeals case of Hansen v. Academy, Ltd., where Kimberly Hansen, an unsuspecting customer, was apparently in awe of a large inflatable shark that was part of a boat display on the sidewalk in front of an Academy sporting goods store.
So mesmerized by the inflatable shark was Ms. Hansen that she proceeded to walk straight into the tongue of the boat, causing her to trip and break both her arms. Ms. Hansen sued Academy, but a trial court ruled for the sporting goods store, holding that the boat tongue was an open and obvious condition.
But, remember. Jaws had a sequel.
Ms. Hansen appealed, and the intermediate appellate court ruled for her. Noting an Academy employee testified the purpose of the inflatable shark was to get people’s attention, the appellate court reversed the trial court’s grant of summary judgment to Academy, holding that, although the boat tongue was visible, the plastic, air-filled fish of terror changed the legal outcome.
The “evidence certainly raised a question of fact as to whether Academy intended for its customers to devote their attention to the merchandise on display rather than to the sidewalk,” the appellate court held in Hansen.
Unfortunately for Ms. Henderson, U.S. District Judge James Payne wasn’t buying the shark argument in her case.
Noting that arrows on the cantaloupe boxes actually pointed to exposed pallet on cantaloupe display, Judge Payne held the inflatable shark case didn’t apply.
“Because the cantaloupe display actually drew attention to the alleged hazardous condition, the Hansen case is distinguishable and does not provide an exception to the open and obvious rule,” the judge wrote.
The lesson of our case of the week? Apparently, at least in Oklahoma, a cornucopia of cantaloupes provides no exception to the open and obvious rule…but, an inflatable shark does.
David Horrigan is a Washington, DC, attorney and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in Law Technology News, The American Lawyer, The New York Law Journal, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: [email protected]
