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Retailer has no duty to fit or instruct on fitting bicycle helmet

Louisiana Supreme Court set forth how a court decides if there should be a duty or to create a duty.

Carrier v. City of Amite, 2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251

Plaintiff: Herman Carrier, Individually and in His Capacity as the Administrator of the Estate of his Minor Child, Herman Blake Carrier, and his Wife, Wendy Wallace Carrier

Defendant: City of Amite, Bell Sports, Inc., and Sears Roebuck and Co.

Plaintiff Claims: negligence failure to properly fit the helmet and instruct on the use of the helmet

Defendant Defenses: no duty

Holding: For the defendant (retailer) Sears Roebuck and Co.

The plaintiff’s in this case are a mother, father and six-year-old child. The parents went into a Sears store and purchased a bicycle helmet for the child. They did not ask for or receive any assistance in purchasing the helmet.

The boy was riding on the municipal tennis court when he had an accident. The plaintiffs sued the city that owned the tennis court, the helmet manufacturer and Sears Roebuck where they purchased the helmet.

Sears filed a motion for summary judgment arguing they had no duty to fit or instruct on the use of the helmet. The trial court granted the motion. The Appellate court reversed finding the trial court committed error in dismissing the case. Sears filed this appeal to the Louisiana Supreme Court.

Summary of the case

In this case, it was the responsibility of the plaintiff to prove negligence. The first step in that would be to prove that the defendant owed the plaintiff a duty to provide a point of sale fitting instruction for bicycle helmets.

In the instant case, plaintiffs do not identify any Louisiana statutory or jurisprudential authority which establishes a specific duty on the part of a retailer to fit bicycle helmets at the point of sale.” The only thing the plaintiff could point to was the opinion of its expert that the defendant owed a duty. However the expert could not point to any authorities, research or other retailers that supported his statement. “Courts have held that experts may not rely on their own conclusions as authority in the absence of any objective support.”

The court stated the considerations that need to be covered before a duty can be created.

…it is necessary for the court to determine whether the rule is intended to protect him from the particular harm alleged, an inquiry which involves both the duty and causation elements of the negligence formulation. The court must make a policy determination in light of the unique facts of the case. Thus, the duty-risk analysis requires the court to take into account the conduct of each party as well as the particular circumstances of the case. In determining whether to impose a duty in a particular situation, the court may consider various moral, social, and economic factors, including whether the imposition of a duty would result in an unmanageable flow of litigation; the ease of association between the plaintiff’s harm and the defendant’s conduct; the economic impact on society as well as the economic impact on similarly situated parties; the nature of the defendant’s activity; moral considerations, particularly victim fault; and precedent as well as the direction in which society and its institutions are evolving.

Applying the above requirements to this case, the court found no reason to create a duty upon the part of a retailer to provide a point of sale fitting instructions for bicycle helmets. “Under these circumstances, we find the responsibility to determine whether the helmet was properly fitted should rest with plaintiffs, not Sears.”

So Now What?

There are two important things that come from this decision. The first is no duty exists unless your industry, your community, or you create one. Unless you advertise you are going to do something, market yourself or write your requirements down, it is difficult for the plaintiff to prove you owe them anything, a duty or money.

The second is the list of requirements the court set forth to determine if a duty has been created. It is not as easy to review as a list; however, it provides some factors that you can review to make sure you are not creating liability that does not exist.

·        Make sure you know the issues you must do when dealing with your business, program or job.

·        Don’t create liability if you don’t have too.

What do you think? Leave a comment.

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One Comment on “Retailer has no duty to fit or instruct on fitting bicycle helmet”

  1. Ryan Callender says:

    What in the world gives this family the right to even attempt to think about suing anyone. You allowed your child to ride the bike on the tennis courts there fault. They left sears without getting a proper tutorial (as if you need one) on how to properly were a helmet also there fault. This whole lawsuit is the parents fault and I think the companies should counter sue for the parents even attempting to get over like that.

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