Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.Posted: October 10, 2016
Attempts by the plaintiff to re-characterize stands and racks did not get past the judge. However, in many cases, the way a plaintiff casts a product can later define how the jury sees the case.
State: Mississippi, Court of Appeals of Mississippi
Plaintiff: Seth Wilson, by and Through His Mother and Next Friend, Suzette Wilson Purser
Defendant: Wal-Mart Stores, Inc.
Plaintiff Claims: Premises Liability
Defendant Defenses: No duty
Holding: For the Defendant Retailer
This is a screwy little case, but worth the effort. A family, Step-Father, mother and two sons went into a Wal-Mart to buy a basketball. While there, the two sons walked over to the bicycle aisle and proceeded to ride two bicycles they found through the aisles.
One brother, in attempting to put a bicycle back in the rack, slowed down. The other brother was not used to hand breaks, maneuvered around the brother riding into a shelf where he suffered a cut on his leg.
They both got on bicycles that were on the bicycle rack, and started riding up and down the aisles nearby. The bicycle Seth rode was on the ground when he found it, with its front wheel pushed under the rack and its back wheel in the aisle. Seth was following Wyatt on his bicycle when Wyatt slowed down to put the bicycle he was riding away. Seth was forced to go around him because he was “going real fast” and “[could not] figure out how to stop.” He tried to brake using the pedals, but the bicycle only had handbrakes. Unable to stop, Seth ran into a wall and cut his leg on a shelf. The cut was deep and required stitches.
Of note was the statement that the employee assigned to the area was absent and there were no signs posted prohibiting the use of the bicycles.” (So bars now need to put up signs no drinking from the tap without paying for the product first?). The employee assigned to the department was outside at the time of the accident, and no signs were posted prohibiting the use of the bicycles or otherwise warning of any danger.”
The defendant was ten at the time of the injury so whether or not signs were posted probably would not have made a difference. And it seems that allowing children to ride bikes through the aisles at Wal-Mart in Mississippi is a common practice, which sort of blows my mind.
The injured child’s mother filed a lawsuit on his behalf, since he was a minor, and sued Wal-Mart based on a premise’s liability theory. Wal-Mart filed a motion for summary judgment stating there was no genuine issue of material fact showing that there was a dangerous condition that Wal-Mart should have warned about.
The motion was granted, and the plaintiff appealed the decision.
Analysis: making sense of the law based on these facts.
The court first looked at the premises’ liability law that the plaintiff claimed had been breached by Wal-Mart. To prove his case the plaintiff must show that he was an invitee, the duty owed to him based on his status and whether Wal-Mart breached that duty.
Seth’s premises-liability claim, this Court must (1) determine the status of the injured person as either an invitee, licensee, or trespasser, (2) assess, based on the injured party’s status, what duty the landowner or business operator owed to the injured party, and (3) determine whether the landowner or business operator breached the duty owed to the injured.
Because the plaintiff was there with his parents to purchase a basketball, he was defined as an invitee. As such, the duty of a land owner (or retailer) was to keep the premises reasonably safe and when not reasonably safe, to warn of the hidden dangers. If the peril were in plain and open view, there is no duty to warn of them.
To succeed in a premises-liability action, Seth must prove one of the following: “(1) a negligent act by [Wal-Mart] caused [his] injury; or, (2) that [Wal-Mart] had actual knowledge of a dangerous condition, but failed to warn [him] of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to [Wal-Mart].”
Is a bicycle on display at a retailer a dangerous condition? The plaintiff argued the bicycle should have been locked up so the plaintiff could not ride it. The bicycle was not in a rack at the time the plaintiff found the bike.
He argues that (1) Wal-Mart’s possession of a rack on which to clamp the bicycles, (2) the assignment of an employee to the toy department, and (3) evidence of other children on bicycles in the same aisle at the same Wal-Mart show that unlocked or readily accessible bicycles created a dangerous condition, and that Wal-Mart knew about it and failed to warn its patrons. He cites to no authority to support his position, and nothing in the record supports these allegations.
The plaintiff then characterized the rack that the bike should have been in as a “safety rack.” However, the court caught on to that maneuver and reviewed the operation of the rack and the manufacturer’s description and found the rack was designed only to hold bikes, not to prevent them from being moved.
Seth refers to the rack where the bicycles could be clamped as a safety rack, but there is nothing in the record to indicate that the purpose for the rack was to protect its patrons from the alleged danger posed by unlocked or readily accessible bicycles. The record contains installation instructions for the rack, which were prepared by VIDIR Machine Inc., a vertical storage company, and refers to the rack as a carrier or bike-merchandising system only. The rack does not contain a locking mechanism, and holds bicycles in place utilizing a tire clamp
The plaintiff argued that since the bikes would be difficult to remove from the rack, an employee would need to be there to make sure the bikes were removed properly and only when allowed.
However, the entire argument failed. No employee was stationed at the rack to guard against removing bikes. Other children rode bikes in the aisle without incidence, which indicated there was no real danger and no evidence of a standard was presented indicating a requirement to lock up bikes on the show floor.
Additionally, there is nothing in the record to indicate the assignment of an employee to the toy department was for the purpose of guarding against any known danger; and evidence that other children rode bicycles in the same aisle in the same Wal-Mart without incident does not, in and of itself, tend to show that unlocked or readily accessible bicycles pose a danger. Seth provided no evidence of the industry’s standards, no expert reports, and no evidence of Wal-Mart’s policy regarding who may remove the bicycles from the rack and whether its employees were required to.
The plaintiff then argued a higher duty was owed to the plaintiff because he was a minor. However, the duty owed under a premise’s liability act does not change due to the age of the invitee. The plaintiff also knew how to ride a bicycle and learned at the age of five. The plaintiff had also been involved in numerous bicycle accidents prior to the one that injured him at the retailers’ premises.
An unlocked bicycle was found not to present a dangerous condition such that a warning had to be posted by the retailer about the risk to the consumers.
So Now What?
The first issue which was handled quickly by the court was the attempt by the plaintiff to characterize something as different than it actually was. By calling the bike rack a safety rack the plaintiff could place in the juries mind a requirement that did not exist. It is important that these issues not be allowed to explode and create liability just because the plaintiff miss-labels part of the case.
Another issue is the fact that parents allow their kids to ride bicycles through the aisles of stores, and the retailer does not put a stop to it. What if the plaintiff had hit another patron rather than a shelf?
As always, the issue of putting warning signs up so people who can’t read, can be protected always makes me wonder. Warning if you are unable to read this sign, please find someone to read it to you. Seriously the entire world is going to be nothing but signs if this continues.
Thankfully, the retailer was not liable for the actions of an inattentive parent for the injuries of their child riding a bike down a store aisle.
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Seth Wilson, by and Through His Mother and Next Friend, Suzette Wilson Purser, appellant v. Wal-Mart Stores, Inc., Appellee
Court of Appeals of Mississippi
161 So. 3d 1128; 2015 Miss. App. LEXIS 216
April 21, 2015, Decided
COUNSEL: FOR APPELLANT: D. BRIGGS SMITH JR.
FOR APPELLEE: THOMAS M. LOUIS, LEO JOSEPH CARMODY JR.
JUDGES: BEFORE LEE, C.J., BARNES AND MAXWELL, JJ. IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
OPINION BY: LEE
[*1129] NATURE OF THE CASE: CIVIL – PERSONAL INJURY
LEE, C.J., FOR THE COURT:
P1. In this premises-liability case, we must determine whether summary judgment was appropriately granted in favor of Wal-Mart Stores Inc. We find summary judgment was proper; thus, we affirm.
FACTS AND PROCEDURAL HISTORY
P2. On April 29, 2012, ten-year-old Seth Wilson, his brother, Wyatt Purser, and his stepfather, Jim Purser, went to a Wal-Mart [*1130] store in Batesville, Mississippi, to purchase a basketball. While Jim was paying for the basketball at a nearby register, Seth and his brother started looking at the bicycles. They both got on bicycles that were on the bicycle rack, and started riding up and down the aisles nearby. The bicycle Seth rode was on the ground when he found [**2] it, with its front wheel pushed under the rack and its back wheel in the aisle. Seth was following Wyatt on his bicycle when Wyatt slowed down to put the bicycle he was riding away. Seth was forced to go around him because he was “going real fast” and “[could not] figure out how to stop.” He tried to brake using the pedals, but the bicycle only had handbrakes. Unable to stop, Seth ran into a wall and cut his leg on a shelf. The cut was deep and required stitches. The employee assigned to the department was outside at the time of the accident, and no signs were posted prohibiting the use of the bicycles or otherwise warning of any danger.
P3. Suzette Purser, Seth’s mother, filed suit on his behalf on September 14, 2012, alleging negligence on the part of Wal-Mart in failing to keep the premises reasonably safe and warn of danger. After discovery was completed, Wal-Mart filed a motion for summary judgment. Seth filed a response, and Wal-Mart replied. After a hearing, the trial court granted Wal-Mart’s motion, finding that no genuine issue of material fact existed because Seth failed to show the existence of a dangerous condition. Seth filed a motion to reconsider, which was denied. Seth [**3] now appeals asserting the trial court erred in granting Wal-Mart’s motion for summary judgment.
STANDARD OF REVIEW
P4. [HN1] In considering a trial court’s grant of a motion for summary judgment, this Court conducts a de novo review and “examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So. 2d 977, 979 (¶7) (Miss. 2001) (citation omitted). [HN2] The Mississippi Supreme Court recently clarified the summary-judgment standard, explaining that “[t]he movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law.” Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88 (¶11) (Miss. 2013) (citation omitted). The supreme court further stated that “[t]he movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [he] would bear the burden of proof at trial.” Id. at 88-89 (¶11) (citations omitted). The supreme court again clarified that “while [d]efendants carry the initial burden of persuading the trial judge that no issue of material fact exists and that they are entitled to summary judgment based upon the established [**4] facts, [the plaintiff] carries the burden of producing sufficient evidence of the essential elements of [his] claim at the summary-judgment stage, as [he] would carry the burden of production at trial.” Id. at 89 (¶13).
P5. [HN3] To determine whether Wal-Mart is entitled to summary judgment on Seth’s premises-liability claim, this Court must (1) determine the status of the injured person as either an invitee, licensee, or trespasser, (2) assess, based on the injured party’s status, what duty the landowner or business operator owed to the injured party, and (3) determine whether the landowner or business operator breached the duty owed to the injured [*1131] party. Titus v. Williams, 844 So. 2d 459, 467 (¶28) (Miss. 2003).
P6. It is undisputed that Seth was a business invitee. [HN4] “A business owner/operator owes to invitees the duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.” Rod v. Home Depot USA Inc., 931 So. 2d 692, 694 (¶10) (Miss. Ct. App. 2006) (citation and internal quotation marks omitted). To succeed in a premises-liability action, Seth must prove one of the following: “(1) a negligent act by [Wal-Mart] caused [his] injury; or, (2) that [Wal-Mart] had actual knowledge of a dangerous condition, but failed to warn [him] [**5] of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to [Wal-Mart].” Byrne v. Wal-Mart Stores Inc., 877 So. 2d 462, 465 (¶5) (Miss. Ct. App. 2003) (citation omitted). A business owner, however, is not an insurer of an invitee’s injuries. Id. at (¶6).
P7. Whether Wal-Mart breached its duty to keep the premises reasonably safe or otherwise warn of a hidden danger necessarily depends on whether a dangerous condition existed. Seth argues that whether an unlocked or readily available bicycle on the sales floor constituted a dangerous condition was a genuine issue of material fact that should have been submitted to a jury. To avoid summary judgment, however, Seth must produce sufficient evidence of the essential elements of a claim of negligence – duty, breach, causation, and damages.
P8. Seth contends that leaving unlocked or readily accessible bicycles on the sales floor created a dangerous condition. He argues that (1) Wal-Mart’s possession of a rack on which to clamp the bicycles, (2) the assignment of an employee to the toy department, and (3) evidence of other children on bicycles in the same aisle at the same Wal-Mart show that unlocked or readily accessible bicycles created a dangerous condition, and that Wal-Mart [**6] knew about it and failed to warn its patrons. He cites to no authority to support his position, and nothing in the record supports these allegations.
P9. Seth refers to the rack where the bicycles could be clamped as a safety rack, but there is nothing in the record to indicate that the purpose for the rack was to protect its patrons from the alleged danger posed by unlocked or readily accessible bicycles. The record contains installation instructions for the rack, which were prepared by VIDIR Machine Inc., a vertical storage company, and refers to the rack as a carrier or bike-merchandising system only. The rack does not contain a locking mechanism, and holds bicycles in place utilizing a tire clamp. While the bicycles are still accessible to patrons, Seth argues that the rack was designed to make it difficult for patrons to remove the bicycle from the rack, prompting a need for employee assistance, but fails to offer sufficient evidence of this assertion.
P10. Additionally, there is nothing in the record to indicate the assignment of an employee to the toy department was for the purpose of guarding against any known danger; and evidence that other children rode bicycles in the same [**7] aisle in the same Wal-Mart without incident does not, in and of itself, tend to show that unlocked or readily accessible bicycles pose a danger. Seth provided no evidence of the industry’s standards, no expert reports, and no evidence of Wal-Mart’s policy regarding who may remove the bicycles from the rack and whether its employees were required to return the bicycles to the rack immediately after each use. Because Wilson failed to produce sufficient evidence that unlocked or readily accessible [*1132] bicycles on the sales floor created a dangerous condition, this issue is without merit.
P11. Seth also argues that the trial court erred in finding that Seth’s age was immaterial. This appears to be an attack on the applicability of Orr v. Academy Louisiana Co., 157 So. 3d 44, 2013 WL 1809878 (La. Ct. App. 2013), an unpublished opinion the trial court cited in support of its conclusion that an unlocked or readily accessible bicycle does not constitute a dangerous condition. In Orr, a woman was injured when she was struck by an adult male riding a bicycle in Academy Sports and Outdoors. 157 So. 3d 44, Id. at *1.
P12. It is not disputed that Seth was an invitee at the time of his injury, and he acknowledges that the duty owed him was not in any way heightened due to his status as a minor. What Seth [**8] appears to be arguing is that the trial court incorrectly considered evidence of contributory negligence in determining whether a dangerous condition existed. Seth had learned how to ride a bicycle by the age of five and had been involved in other bicycle accidents prior to the one at Wal-Mart. Again, Seth’s argument necessarily depends on whether an unlocked or readily available bicycle constitutes a dangerous condition. If an unlocked or readily accessible bicycle does not constitute a dangerous condition, it does not matter whether a person of Seth’s age, experience, and intelligence could have perceived the danger because the danger did not exist. Because Seth failed to show how an unlocked or readily available bicycle constituted a dangerous condition, this issue is without merit.
P13. THE JUDGMENT OF THE PANOLA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
Carrier v. City of Amite, 2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251
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 versus City of Amite, Bell Sports, Inc., and Sears Roebuck and Co.
SUPREME COURT OF LOUISIANA
2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251
October 19, 2010, Decided
SUBSEQUENT HISTORY: Rehearing denied by Carrier v. City of Amite, 2010 La. LEXIS 3053 (La., Dec. 10, 2010)
PRIOR HISTORY: [**1]
ON WRIT OF CERTIORARI FROM THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF TANGIPAHOA.
Carrier v. City of Amite, 6 So. 3d 893, 2009 La. App. LEXIS 215 (La.App. 1 Cir., 2009)
DISPOSITION: REVERSED AND RENDERED.
COUNSEL: Stephen Dale Cronin, GUGLIELMO, MARKS, SCHUTTE, TERHOEVE & LOVE; John David Ziober, KENNON, ODOM & DARDENNE, APC, For Applicant.
Arthur W. Landry, Jeanne Andry Landry, ARTHUR W. LANDRY AND JEANNE ANDRY LANDRY, ATTORNEYS; Christopher M. Moody; John Ernest William Baay, II, Ernest Paul Gieger, Jr., GIEGER, LABORDE & LAPEROUSE, LLC; Thomas Reginald Hightower, Jr., THOMAS R. HIGHTOWER, JR., APLC, For Respondent.
[*1247] PER CURIAM *
* Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.
We granted certiorari in this case to determine whether this retail seller has a duty to instruct buyers on the proper method of wearing and fitting bicycle helmets. For the reasons that follow, we conclude plaintiffs failed to establish any legal duty on the part of the retailer under the facts presented.
UNDERLYING FACTS AND PROCEDURAL HISTORY
This case arises from an incident in which six-year-old Blake Carrier was injured while riding his bicycle on a municipal tennis court on May 29, 2002. At the time of the accident, Blake was wearing a bicycle helmet his parents allegedly purchased from Sears, Roebuck and Co. (“Sears”) in December 2001.
[Pg 2] Subsequently, Blake’s parents filed the instant suit against several defendants, including Sears. 1 Plaintiffs alleged Sears [*1248] failed to properly fit the helmet and instruct them regarding its correct use.
1 Also named as defendants were Bell Sports, Inc. (the manufacturer of the helmet), and the City of Amite (the owner [**2] of the tennis court). These defendants are not at issue for purposes of this opinion.
During discovery, plaintiffs produced an expert in the area of bicycle safety, James Green. In his deposition, Mr. Green stated he advised his clients to instruct their buyers on the proper use and fit of bicycle helmets. However, Mr. Green admitted he knew of no rules or laws requiring retailers to fit and instruct buyers of bicycle helmets. Mr. Green also explained his clients did not include Sears.
Sears filed both a motion in limine and a motion for summary judgment. In support of the motion in limine, Sears argued Mr. Green had no basis for his conclusion that retailers had a duty to fit and instruct buyers on the proper way to wear a bicycle helmet. In support of the motion for summary judgment, Sears argued retailers had no duty to buyers to fit and instruct on the proper use of bicycle helmets.
The district court granted Sears’ motion in limine to exclude Mr. Green’s testimony, and further granted Sears’ motion for summary judgment to dismiss all claims against Sears.
Plaintiffs appealed. On appeal, the court of appeal reversed, finding the district court erred in deciding the duty issue without [**3] first determining that the expert’s testimony was inadmissible under the factors identified in Daubert v. [Pg 3] Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and State v. Foret, 628 So. 2d 1116 (La. 1993). Accordingly, the court of appeal reversed the judgment granting the motion for summary judgment, and remanded the case to the district court for further proceedings. Carrier v. City of Amite, 08-1092 (La. App. 1 Cir. 2/13/09), 6 So. 3d 893, writ denied, 09-919 (La. 6/5/09), 9 So. 3d 874.
[Pg 4] On remand, Sears re-urged both the motion in limine and the motion for summary judgment. 2 After a hearing, the district court denied Sears’ motions.
2 On remand, Sears filed a pleading captioned “Motion for Hearing on Summary Judgment and Motion in Limine for Purposes of Issuance of Oral Reasons for Judgment, or Alternatively, Motion Requesting Written Reasons for Judgment.” Plaintiffs assert this motion was procedurally improper, because nothing in the court of appeal’s opinion indicated the case was being remanded for entry of reasons. However, the record reveals Sears filed its original motion for summary judgment and motion in limine, as well as [**4] supporting exhibits, into the record at the hearing. Thus, despite the caption of the motion, we believe Sears expanded its pleadings to reurge its motion for summary judgment and motion in limine. See La. Code Civ. P. art. 1154.
Sears sought supervisory review of this ruling. The court of appeal denied the writ, with one judge dissenting.
Upon Sears’ application, we granted certiorari to consider the correctness of the district court’s decision. Carrier v. City of Amite, 10-0007 (La. 3/12/10), 29 So. 3d 1241.
The central question presented in this case is whether plaintiffs established a legal duty on the part of a retailer, such as Sears, to provide point-of-sale fitting instructions for bicycle helmets. In Lemann v. Essen Lane Daiquiris, Inc., 05-1095 at p. 8 (La. 3/10/06), 923 So. 2d 627, 633, we discussed the principles for determining the existence of a legal duty:
[HN1] A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Meany v. Meany, 94-0251, p. 6 (La. 7/5/94), 639 So.2d 229, 233. Whether a duty is owed is a question of law. Peterson v. Gibraltar Savings and Loan, 98-1601, 98-1609, p. 7 (La. 5/18/99), 733 So. 2d 1198, 1204; Mundy v. Department of Health and Human Resources, 620 So.2d 811, 813 (La. 1993); [**5] [*1249] Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289, 292 (La. 1993). In [Pg 5] deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. See Socorro v. City of New Orleans, 579 So.2d 931, 938 (La. 1991). The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty. Faucheaux, 615 So. 2d at 292; Perkins, 98-2081 at 22, 756 So. 2d at 404.
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. Rather, plaintiffs seek to establish the existence of industry standards, including best practices, which they claim are relevant to determine whether a general duty is owed.
At this juncture, the parties dedicate a large part of their briefs to discussing whether the district court properly qualified Mr. Green as an expert on the subject of point-of-sale assistance in the sale of bicycle accessories. However, we find we need not [**6] resolve the question of Mr. Green’s qualifications under the unique facts presented, because we find that Mr. Green’s testimony, even if accepted, is insufficient to establish any factual basis for a duty on the part of Sears.
In his deposition, Mr. Green testified as follows:
They came out with a mass market approach to the Wal-Marts, etcetera, the Sears, the Lowe’s, whoever, that wanted to sell bikes, where they just wanted to get bikes and components out there into the commerce stream. They don’t provide point-of-sale service at all. You have, you have two families of retail organizations here. I maintained ever since I saw this developing some years ago that this mass market approach is not a good thing, that if you’re going to be a reputable retailer and I tell my clients that, if you’re going to be a reputable retailer, you must properly instruct at the point-of-sale from everything to how to operate a quick release, to how to fit a helmet, to never ride at night without a light on your bike, that kind of thing. It should be done at the point-of-sale, because bikes aren’t toys, they’re, they’re vehicles. [emphasis added]
[Pg 6] Although Mr. Green testified the fitting of bicycle [**7] helmets “should” be done at the point of sale, he cited no authority for this proposition other than his own opinion. To the contrary, when asked whether any regulations existed requiring a retailer to provide point-of-sale instructions on fitting bicycle helmets, Mr. Green testified, “[n]o, there’s nothing written up as a standard.”
Similarly, in response to Sears’ interrogatories, plaintiffs admitted Mr. Green did not rely on any formal requirements in support of his position:
INTERROGATORY NO. 4
Please identify any and all standards, state or federal regulations, engineering, helmet manufacturer, department store and/or retail association periodicals, documents or guidelines which your expert, James M. Green, relies upon in opining that an industry standard existed in November, 2001 requiring that retailers of bicycle helmets must give point of sale instructions on proper sizing and fitting.
ANSWER TO INTERROGATORY NO. 4:
There is no requirement but perfectly clear instructions provided by BHSI. Most reputable retailers do fit at the [*1250] point of sale. These include REI, Performance Bicycle, Brooklyn Bike Shop, and any bike shop who belong to the Independent Bicycle Retailer Organization [**8] (now known as the National Bicycle Dealers Association (NBDA). There are currently 6000 shops who belong to NBDA who employ helmet fit at point of sale (See attached documentation from NBDA). The NBDA also outlined the differences between a reputable shop and a mass merchant shop on the safety issue. (See attached documentation from NBDA). [emphasis in original]
A review of the documentation attached to plaintiffs’ answer to Interrogatory No. 4 reveals none of these documents set forth an industry standard which would mandate the fitting of bicycle helmets by a retailer at the point of sale. Moreover, Mr. Green admitted he did not know if Sears belonged to any bicycle safety industry group.
[Pg 7] Under these circumstances, we must conclude Mr. Green’s testimony reflects his own personal opinion as to what a retailer should do, and is not based on any objective standards establishing what a retailer is required to do. Courts have held that [HN2] experts may not rely on their own conclusions as authority in the absence of any objective support. See Grdinich v. Bradlees, 187 F.R.D. 77 (S.D.N.Y. 1999) (holding the expert’s testimony was without foundation because “[w]ithout ‘industry standards’ [**9] to rely upon, [the expert] seems to base his conclusions on his own authority”). Thus, Mr. Green’s testimony does not establish the existence of any statutes, regulations, or industry standards which would support the finding of a duty on a retailer to fit bicycle helmets at the point of sale.
Additionally, as a matter of policy, we find no ground for recognizing such a duty based on general principles of tort law. In Meany v. Meany, 94-0251 at p. 6 (La. 7/5/94), 639 So. 2d 229, 233, we discussed the policy considerations to be taken into account in determining whether the law imposes a duty under particular facts:
[HN3] When a plaintiff articulates a general rule or principle of law that protects his interests, 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. Socorro v. City of New Orleans, 579 So.2d 931, 938 (La. 1991). [**10] 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 [Pg 8] fault; and precedent as well as the direction in which society and its institutions are evolving. Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1161 (La. 1988); William E. Crow, The Anatomy of a Tort, 22 Loy. L. Rev. 903 (1976).
Applying these precepts to the instant case, we believe the policy considerations militate against the finding of any duty on the part of a retailer to provide point-of-sale fitting instructions for bicycle helmets. Under current societal norms, we do not believe it is reasonable to require mass-marketing [*1251] retailers, such as Sears, to offer specialized point-of-sale advice on the thousands of products they sell. Rather, it is typically understood the consumer will ask [**11] for assistance, if it is required. In the instant case, the deposition testimony of Mr. Carrier establishes he never asked for any assistance at the time he purchased the helmet. Moreover, Mr. and Mrs. Carrier testified in their respective depositions that they believed the helmet, which was purchased as a Christmas gift for Blake, fit him properly; indeed, Mrs. Carrier testified it “was the best-fitting helmet [Blake] ever had.” Mrs. Carrier admitted she did not consult the instructions for fitting the helmet, and testified the instructions “probably got thrown away because we’ve had helmets before so we know how to use them.” 3 Under these circumstances, we find the responsibility to determine whether the helmet was properly fitted should rest with plaintiffs, not Sears.
3 Interestingly, Mr. Green opined that the manufacturer’s instruction on use and fit in this case were “the best I’ve ever seen.” Nonetheless, Mr. Green stated he believed point-of-sale assistance on fit was necessary in part, because consumers frequently failed to consider the instructions on fit and use provided by manufacturers. However, Mr. Green conceded that such a duty did not exist in the case of mail-order [**12] purchases. This dichotomy in Mr. Green’s testimony reveals the fallacy in his conclusions. We believe the more consistent approach is to place the duty on the consumer to determine the product he or she purchased is appropriate for its intended use.
In summary, we conclude that under the facts presented, there is no legal duty which would require Sears to provide fitting instructions for bicycle [Pg 9] helmets at the point of sale. In the absence of any legal duty, Sears is entitled to summary judgment as a matter of law.
For the reasons assigned, the judgment of the district court is reversed. The motion for summary judgment filed by Sears, Roebuck Co. is granted, and judgment is entered in its favor dismissing the claims of plaintiffs with prejudice.
REVERSED AND RENDERED.