What tends to follow in America’s "litigation culture" of non-accountability for individual actions are more laws and regulations.

Will Hurricane Isabel Wash Away the Trial Lawyers?

With the mid-Atlantic Coast bracing itself under the significant threat of Hurricane Isabel, some East Coast residents wisely are preparing for the worst. News stations from the Carolinas to New England are tracking the storm and reporting live from local home improvement and grocery stores bustling with shoppers augmenting their hurricane-proof supplies.

Thankfully, with stores like Home Depot, Lowes, Wal-Mart and Target, most shoppers will leave with the necessary provisions. That won’t be true, however, if trial lawyers and "Big Brother" have their way.

Mega chains can respond quickly to consumer needs, particularly in emergency situations, because they have adequate space to stock lumber, batteries, canned foods and bottled water. Yet, they are coming under attack for precisely that reason.

With trial lawyers endlessly seeking deep pockets to pick, they have followed the profit stream to these "big box" stores, scrutinizing their stacking practices and filing lawsuits claiming premise hazards. The verdict in many of these cases turns on whether the retailer could be held liable for negligence when it didn’t directly cause the dangerous condition and didn’t have notice that a customer shifted merchandise. In almost half of the "falling stacks" cases reported since 1998, the evidence shows that the injured party contributed in some way to the accident — either by pulling something off a shelf overhead without store assistance or removing a product from the middle of a display, dislodging the contents around it.

Many of these plaintiffs, no doubt, were unsuccessful at the childhood games of "Don’t Break the Ice" and "Jenga."

What tends to follow in America’s "litigation culture" of non-accountability for individual actions are more laws and regulations. Indeed a growing trend for state and local governments across the country is the consideration and adoption of such laws and regulations limiting the mega stores ability to do what they do best — adequately stock and "stack" their shelves to meet high customer demand at a lower price. It is no surprise that California was the first state to pass such an anti-business law under the guise of public safety.

Safety should be a top concern for all retailers. Considering the rising costs of insurance and litigation defense, they are foolish not to implement safety measures where needed. Most do, on their own.

As is oftentimes the case, however, legislative nannying is not the answer. Considering the number of shoppers visiting these super warehouses daily versus the number of accidents resulting from falling stacks, the risk of injury is miniscule, even to those who create their own accidents. Whereas increased legislation may further reduce this risk, it does so at a greater cost to the general public when ready, available supply cannot meet demand and costs increase.

The role of a legislator is to consider the impact of legislation under varying circumstances, including times of natural disaster, and to resist passing ordinances that do not benefit the greater good. If the trial lawyers and their legislation-happy friends had had their way, many of the mega stores on the East Coast would have empty shelves, increasing the vulnerability for many as Isabel draws nearer.

Like hurricane watchers who know that the eye of the storm does not present the greatest threat, legislators must consider the totality of circumstances before sounding the alarm to protect relatively few while ignoring the potential risk to many more.

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