Thursday, October 13, 2011

How to avoid a lawsuit—

So, on Oct 4 at about 6 pm, I was in the supermarket doing something I have done at least weekly for pretty much the last 45+ years: grocery shopping. The only appreciable difference between South African supermarkets and American supermarkets is the hours they are open, so my shopping skills, finely honed in busy American markets, are eminently translatable from that country to this.
I was almost finished with the shopping and walking down the canned goods aisle when I remembered that I had used up my two cans of tomato puree the previous week making enchilada sauce. This particular market has a problem keeping things in stock (invariably I come away with things left on the shopping list because the market hadn’t restocked an item, sometimes for weeks), so I was concerned that I might not be able to get the tomato puree without going to another store—something I had no time for that evening.

There was a tall man in front of the display I wanted, so I waited patiently for him to step aside. When he finally did and I could see the display, I inwardly heaved a sigh of relief: not only was the tomato puree in stock, there was plenty! Neatly stacked two high on a shelf above my head, there seemed to be an abundance and all I needed was two cans,

To the left of the display of the 410 gram cans I wanted was a stack of half sized cans, also containing tomato puree. The 410 gram cans were stacked two high but the smaller cans were stacked four high and, because they did not have tapered bottom edges, the stack was not especially stable. I reached for one of the larger cans and, before I could get it off the shelf, the stack of small cans wobbled and two of them fell off the shelf—and one of them hit me square in the face.

It felt like I had taken a fist to the mouth. I staggered backwards with the blow, then retrieved my tomato puree cans from the shelf and re-stacked the two cans that had fallen. It was not until I reached the end of the aisle that my nose tickled and when I reached up to rub it, my hand came away bloody. The punch to the face did more then just step me back a pace and rattle my equanimity: it had opened a half-inch long wound about ¾ of an inch above the right side of my upper lip, and it was bleeding profusely.

I called Hubby, who was in another shop, saying that a can had fallen off a shelf and hit me in the face and now I was bleeding. He showed up and quickly took charge, going for a store manager while I pressed a folded tissue to my face to stop the bleeding and retard swelling. Anna, a management employee, escorted me to a private room where she cleaned the cut and helped me fill out an incident report. One of the things I tried to impress upon her was that the stack of cans was wobbly and should be moved to a lower shelf before someone else got hurt the same way I did. My husband asked if the store was going to pay the medical bills, as we had all agreed I needed to go to the ER for stitching, and Anna answered that the store would.

After a two hour wait in the ER, a doctor finally examined my face and decided that Dermabond—a surgical superglue—would close the wound with the least amount of scarring and an hour later my husband and I were finally able to go home.

The following day Anna called to see how I was doing. My face was swollen, I had a bruise both inside and outside my mouth, and the cut hurt…other than that I was fine. She wished me well and said she would call again to check on me. She called a couple of days later to check on me again and I asked if the cans had been moved to a lower shelf to save someone else from the same experience and she said they had not—the manager had looked and decided it was unnecessary and they had to be stacked that way. I thanked Anna for her concern and put down the phone.

Friday, however, the story took another turn. Early in the day Hubby stopped by the supermarket to submit the bills from the hospital and pharmacy. Several hours later I received a call from another supermarket manager, Joseph, who was apparently higher up the food chain than Anna, who informed me they were not going to pay my medical bills because the store had decided it was not responsible for my injury. I asked for the man’s name and telephone number, telling him that my husband would be in touch with him.

Instead of calling, however, my husband went to the market, furious. Joseph tried to bluff my husband with misinformation and outright lies, attempting to make the injury my fault. He told my husband that the can could not have fallen on my face because I was too tall. For some odd reason, he was under the impression that I was 5’11” tall [180.3 cm] (my husband’s height) when, in fact, I am barely 5’3” [160 cm]. With that misconception laid to rest, Joseph now tried to tell my husband that they had a witness who saw me cause the cascade of cans. We knew this to be false because we couldn’t find a witness to the event at the time it occurred—if anybody saw it, nobody came to my aid! And when Hubby demanded that Joseph produce his witness, the subject was dropped and he went back to blaming me.

Hubby suggested that they go to the aisle and replicate the incident. When they stacked up four of the half-sized cans (can B in the photo) and the department manager tried to lift a larger (size A) can from beside the stack, all four of the smaller cans fell on him, rather than just the two that fell on me! In view of the manager’s hands-on experience, Hubby was then told that our claim would be submitted to the supermarket’s insurance company…and gave Hubby a large bouquet of flowers to bring home to me.

On Monday Hubby returned the market and met with the store general manager who, incidentally, had been in the store at the time of my injury…and was notified of the injury…but never bothered to come into the office to see how I was. He told Hubby that he was willing to settle the claim on the spot, in cash, in exchange for Hubby’s signature on a claim release that said we would not submit any further medical claims for the incident. He gave no reasons for his abrupt decision to settle the claim immediately for cash, but it was the right thing to do—not just because the market was responsible for my injury because they unsafely stocked those cans, but for the store (which, surely, was his primary motive). A swift cash settlement in the amount of the actual medical costs accompanied by a signed release form virtually guarantees the market will not suffer the cost of a lawsuit for costs plus damages for negligence and legal fees as well. It was the prudent step to take, Joseph’s insulting bluster and posturing notwithstanding.

Oh—and Hubby went to the aisle where the mishap occurred and noted that after the manager had been showered with falling cans, those wobbly 4-up stacks of small cans had been moved to a lower shelf where, if they fell, the weren’t so likely to hit someone in the head or face. Imagine what they would have been dealing with that can had landed on the head of an infant in his mother’s shopping trolley instead of an adult??

The Dermabond came off after a week and I am now left with a half-inch long red scar on my face, just above the right side of my upper lip. I am thinking that manager was worried that I was going to want expensive plastic surgery for the scar and was in a hurry to get Hubby to sign the release that would protect the store. It’s a shame he didn’t get me, the actual injured party, to sign it, eh??