Vegetables falling off shelf caused rotator cuff tear...

by Anonymous
(California)

In selecting cauliflower from a high shelf in the vegetable bin, several bunches weighing approx 3 lbs each came tumbling down at me. In swatting them away I felt a massive tear and pain in my shoulder. I buckled over in pain and as I was leaving the store and told the cashier that I was injured. He simply shrugged.

It turned out I had a massive rotator cuff tear, requiring surgery and 15 months of physical therapy. I am still in pain and have not recovered my strength and mobility. I have had to miss vacations, can no longer do favorite sports, work in the garden, or even put up my dishes with my right arm.

I am trying to figure out what I am entitled to in compensation. I have lots of circumstantial evidence, including pictures, Dr. notes, and physical therapy notes. I have filed a lawsuit to stop the statue of limitations, but don't know how to assign value.

I have tried to find legal assistance, but because I did not file an incident report I have not been very successful. Is there any information or direction you can give on how to be successful with my claim? Thank you.

Visitor Question:
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ANSWER for "Vegetables falling off shelf caused rotator cuff tear...":

Anonymous (California):

If you filed a lawsuit in one of California's Small Claims Courts, the maximum you could sue for is $7,500. If that’s the case, you can probably handle your own lawsuit.

However, if you filed your lawsuit against the grocery store in the next higher court, which is one of California's Superior Courts, you will likely be up against the grocery store’s insurance company’s attorney. Unless you are a licensed attorney, you will be at a severe disadvantage.

Without knowing the rules of evidence, motion practice procedure, jury voir dire procedure, and other legal requirements, you will likely lose your case.

It is understandable you have not had any success finding an attorney to accept your case. You didn't have an incident report completed by the store manager, or even by a store employee at the time of your injury.

However, there is a good chance your injury was caught on video tape. If so, you can file a subpoena duces tecum. This is basically a court order for one or more parties to the lawsuit to produce documentary evidence to the party who applied for the subpoena. Documentary evidence can include video tapes.

Here's the problem with injuries occurring without supporting incident reports...

Without an incident report, the store’s attorney will contend your injury was sustained in the time between your visit to the store and when you officially notified the grocery store. The attorney will contend your injury happened separately in an event which occurred after you left store.

Unfortunately, this shifts the burden of proof to you to be able to show your injuries were caused uniquely, and individually by the falling of the produce from the shelves. Witness who were at the store when you were injured and who can corroborate your version of events would go a long way to meeting your burden.

Here's more about the legal burden of proof for claims and lawsuits.

If your lawsuit is filed in superior court, it will be in your best interests to settle your case before it goes to trial...or you must find an attorney to handle the case.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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