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You are here: Experts > Jobs/Careers > Lawyers > Personal Injury Law (Accidents/Slip & Fall) > Wal-mart Accident
Expert: Glenn A. Dorfman - 11/2/2009
Question
Several months ago, my family was at a Wal-mart in Dallas, TX, shopping in the garden section. Our two children, 2yr and 4 yr old boys, walked down to the end of the isle we were shopping on. At the end of the isle, on the concrete, was a fully assembled swing set. My youngest son ran over and tried to climb onto the swing. Before we could catch him or stop him, he flipped over onto the concrete and landed face first. The impact of the fall drove his bottom teeth through his lower lip.
Needless to say, we went to the ER, had xrays, stiches, etc... He has a scar from the accident but overall, we were prerry fortunate.
I returned to the store the following day to fill out an incident report. I also took pictures of the swing set. Immediately after filling out the incident report, I went back over to the swing set and an employee was using zip-ties to secure the swings to the frame so no one could use the swing or get hurt. I have pictures of this as well. To me, that seems a clear sign that Wal-mart realized they were negligent.
I have submitted copies of the medical expenses along with one day in lost wages due to staying at home with our son. Walmart is refusing to reimburse us. We are only asking for approximately $900.
What are our next steps / options?
Answer
Sorry, but I am going to have to throw water on your theory of WalMart liability. Firstly, by law in my State and I presume all States, post-accident remedial changes (the employee tying up the swing) cannot be used as evidence of negligence. The theory behind that is that the landowner or store would then never make things a little safer in order to avoid a tacit admission of negligence. It's a matter of public policy. Next, if the swing was not defective in any way and your little kid just tried to get on but was too small or whatever and fell off, then your own negligent supervision of your small child would far outweigh any store negligence. Of course, if your child got on the swing and the swing collapsed for instance, that would be a good case. If they put that swing out there for display purposes, it is foreseeable that someone will try to use it and in which case, the store has a duty to make sure it is in good working order. But that is not the case here is it? I believe that Walmart has insurance to cover any "out of pocket" medical expenses for people hurt on the premises, regardless of legal liability. I think they would be willing to pay that. As to the one day lost wage, I would think they would pay that as well just for good public relations but for no other reason. There are too many variables. Did you take "sick time" from work in which case you really didn't have an out of pocket loss. Were your able to make up that lost time, etc. etc. They simply don't want to bother looking into those details. And if you don't live in the area, they know that and know that filing a Small Claims Court action isn't going to be worth your time or trouble and that you would lose in Court anyhow for reasons stated above. Negotiate some settlement based on out of pocket losses and that is about all you can do.
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