Email This
Please enter a Recipient Address and/or check the Send me a copy checkbox.
Your email has been sent.
Your Name: 

Copy me on this email ()

Recipient's Email: 
Separate multiple email addresses with commas (Limit is 10).
Optional Message: 
The Verdict Is In

Death By Wal-Mart Bag

Tony Francis, MD, Orthopaedic Surgery, 04:00PM Oct 2, 2013

If you ever go to law school, you will become familiar with "the law school hypothetical."  This would be a question conjured up by a law professor which has every kind of hijinks imaginable for students to ponder.  Under the best of circumstances, this is a demonstration of some principle of law along with an acknowledgement that there are many things about which "reasonable minds can disagree."   The ABA Journal posted notice of a case which could easily pass for a law school hypothetical.

The ABA Journal has this entry:

A lawsuit filed by a Nebraska man claims his wife would still be alive if a Wal-Mart employee had not overstuffed her grocery bag in April 2010. The Lincoln Journal Star has details. The suit by William Freis of Plattsmouth says the grocery bag broke as his wife, Lynette, was walking to the car.  The groceries fell on her toe, breaking it and causing a deep cut. The cut led to an infection, which spread throughout Lynette’s body and caused her death in March 2011, the suit claims.

The suit also targeted the maker and distributor of the plastic bags. It claims Wal-Mart was negligent in the training of employees who bag groceries, and that the defendants provided a defective grocery bag. Wal-Mart spokesman Randy Hargrove told the newspaper that the company is investigating the allegations and customer safety is a top priority. The case was recently transferred to a federal court in Omaha.

According to the Lincoln Star Journal, the woman was a 57 year old and the bag was stuffed with two La Choy cans, one of which fell from the bag.  We aren't given any other details about her health.  One must speculate she had some underlying condition such as diabetes, peripheral vascular disease or an underlying immune disorder.  The Lincoln Star Journal has this article: 

Most every book on tort features two prominent cases.  The first is the Palsgraf case from 1928 in which Justice Cardozo introduced the concept of "zone of danger."  There, a rider on the Long Island railroad dropped a wrapped box of fireworks while boarding a train.  The box exploded with such force that a scales at the end of a platform was knocked over, injuring Palsgraf.  Cardozo ruled that such an incident was not foreseeable, hence the Long Island RR was not liable.  In the other case, Goddard v. Boston and Maine RR from 1901, Goddard slipped on a banana peel left on the platform sustaining injuries.  The court ruled that the railroad was not liable for negligence of its passengers. 

The Palsgraf case (1928):

Goddard v. Boston and Maine RR (1901):

Such questions involve "foreseeability" and "reasonable care."  Clearly, like valuable art and beautiful women, these concepts are in the eye of the beholder. 

So how would you answer the questions posed in this case?  Keep in mind that Nebraska and Arkansas both have a partial or modified comparative negligence law meaning if the plaintiff contributed 50% or more to the negligence, no recovery can be had.  Nebraska has modified joint and several liability, while Arkansas has abandoned it. 

The comments posted on the ABA entry are interesting and entertaining. Some are included infra for your enjoyment.  

Entertaining comments:

Island Attorney:

Wow. Sounds like the work must really be drying up in Plattsmouth.

Just some Bloke:

Well, judging from the, ahem, “merits” of this case, I guess we can conclude that there is now a glut of lawyers in Nebraska, too. Perhaps if Wal-Mart didn’t have to defend so many frivolous lawsuits, they’d be able to afford better grocery bags?


This lawsuit isn’t as stupid as it sounds.  Grocery stores have increasingly become negligent about grocery bags under the false claim that they’re environmentalists cutting back on plastics.  The result is over thinner plastic bags and over stuffed paper bags.  Many of these bags rip unexpectedly.  Poor and elderly people often don’t have the luxury of a car and end up losing their groceries walking home or carrying them on buses.  It may sound silly but this is a scam by grocers that costs customers a lot of money.  I just had a conversation about this at my Harmons grocery store because every time I buy groceries at least one or two of their paper bags rip when transferring them from the cart to my trunk.  The clerk told me they get many complaints but the company insists the bags have been tested to carry 20lbs.  Imagine 20 lbs.  More than a sack of potatoes.  Impossible.  Clerks are also trained to over stuff and not waste extra bags.  If there’s an injury, they should be held as liable as any one else.  Sue them.

a stupid trial lawyer hated by the Supreme Court: 

screw all your knee jerk reactions.  the woman died and it could have been prevented with reasonable measures.  you people are so blinded by your love  for the corporation that it’s gotten in the way of common sense.  Here’s something to keep in mind: corporations don’t love you or care for you, and they
never will.  Got it?

B. McLeod:

Remember “proximate cause” from your 1L year?  Death is not the foreseeable result of an overstuffed grocery bag.  Plus, based on the grocery baggers I have seen, this is probably another instance where the company was pressured to hire some developmentally disadvantaged person to do this job.  They should not be penalized for complying.

another trial lawyer:

Question for B. Mcleod—you actually practice law, or do you just go around quoting lessons from your first year of law school? Well, I actually practice law—i.e., real lawsuits in real courts, believe it or not—, and very little to nothing that appeared in my law school classes as “doctrine” has much of an impact on my work.  Do you know what a triable issue is? I’m guessing not, since from your comments it doesn’t seem like you’ve ever tried a lawsuit, so I really don’t think you should be commenting on the merits or demerits of filing a given case.

B. McLeod:

Yes, another trial lawyer, of course I have tried cases.  But, I do recognize that there is that school of thought (of which you seem to be a proponent) that plaintiff practice means filing whatever unresearched piece of crap you want and making the defense show what is wrong with it.  Or, maybe you are billing by the hour, and so only care about those “triable issues” instead of whether you ever recover a dollar for the client.

another trial lawyer:

B. Mcleod—as I suspected, you have no friggin clue what you are talking about.  I only do cases on contingency.  If I don’t win I don’t get paid.  No “billable hour” bs for me.  If you can’t see the merit to this case and keep getting bogged down in causation, it leads me to believe you’ve never set foot in a courtroom.

B. McLeod:

Well, another trial lawyer, I don’t concern myself overmuch with the perception deficits of the ambulance-chasing, TV-advertising crowd. As for your complaint, I’m just calling it as I see it.  I’m pretty sure “developmentally disadvantaged” is the “appropriate” PC term, and If grocery stores are going to be expected to employ them as baggers, there is a limit to how much any “training” on saftey issues is ever going to accomplish.


Okay, WM’s bags are probably inherently defective; I can get behind that. And I can see how dropping a 42 oz. can of anything on one’s foot would break a toe. Where the chain of causation appears to break down is that the can gashed her foot, leading to an infection. Assuming the type of killer Staph or other infections that generally cause such resistant infections, there must have been some intervening causation.


When I first read the headline, I thought it was a frivolous lawsuit, too.  But then I read the article, and now I think the plaintiff has a case! I have to agree with Santana that plastic bags have gotten LOT thinner and weaker since they were first introduced a little more than 20 years ago.

As for B. McLeod’s comment, what exactly did the customer do wrong?


If we’re going back to 1L law school, you might want to remember the thin skull doctrine.  Death resulting from an injury doesn’t have to be foreseeable in detail, only an injury needs to be foreseeable.  All consequences occurring from the injury are presumed foreseeable as a matter of law if an injury was foreseeable.  The infection resulting in death was put in motion by the foreseeable risk of injury.  Case law makes it abundantly clear that even malpractice by a physician treating the injury is foreseeable as a matter of law and liability attaches to the original tort-feasor who caused the original injury even if her cause of death is malpractice at the hospital.


Santana makes sense; if injury - heavy object falling from breaking overstuffed bag and either injuring directly or becoming a tripping hazard - is foreseeable, isn’t death?

The specific manner of death might not be reasonably foreseeable, but so long as injury (and thus possible death) were foreseeable, I don’t think the specific mechanism in this instance was so unusual as to preclude foreseeability. It’s not like the bag broke, she stopped to pick up items, and was hit by a meteor while doing so or the like.


df-exactly.  A meteor is an intervening cause, or a robber grabbing the bag abruptly.  But an infection is a natural consequence of almost any injury.  Car accident victims in the hospital inevitably get pneumonia, staph infections, even mrca infections.  There’s no deduction in damages for the infections or for the additional medical care required.  Every injury is vulnerable to infection as a natural consequence of injury.


So you’re saying you’d get a positive verdict from the jury without proving all the elements of the tort alleged? While I’m not saying that’s impossible, I’m assuming you’re counting on the defendant to rather settle the case than pay for an appeal.


No wonder the public thinks ill of lawyers.  Is nothing sacred?  Can you say proximate cause?


Give me a break.  There is no comparative negligence for not telling a service provider how to do his own job.  A customer has every right to expect a bagger to know how to bag groceries, just as she has a right to expect a doctor to know how to practice medicine.  (Differing levels of training and education, to be sure, but both are supposed to be competent in their respective fields.)

And you seem to imply that because the bottom of the bag was “unsupported”, the customer was somehow comparatively negligent, as if the bags don’t have handles and are INTENDED to be held by said handles!

And that’s not even mentioning the product liability aspect of this case—the defective bag that tore open—which is strict liability and therefore no comparative negligence at all, so long as the customer used the bag as intended, which she did.

defensive lawyer:

austin texas has outlawed crappy bags. part of the problem with tote bags is the dorkiness factor.  that’s why it is so important to get a tote you can live with. especially as a guy. with the resurgence of made in america heavily crafted things, high quality totes are available! waxed canvas with leather handles will look best! for the sake of your foot, of the planet, of your dignity as you pick up crap, for the protection of your merchandise, get a good heavy quality tote!  I once broke an expensive bottle because of a cheesy paper grocery bag!  these high quality tote bags can pay for themselves!  plus, the more you use a tote, the more you realize than, “man purse” jokes notwithstanding, the incredible usefulness of a high quality waxed canvas tote with natural leather handles, or thick beautiful waxed canvas, particularly handmade from santa cruz, will make your life so much better!


“Man purse?” Ptooey!

Step up to the shopping bag that sports an original work of art! Yes, it’s the BMF tote bag, made of recycled bottles in two designs. Choose our trademark large economy-sized model, imprinted with the stylized shot of the the “green flash” at sunset! And for those who like the idea of pissing people off, there’s the smaller size imprinted with a nekkid woman, strategically posed and holding a whip, with the legend: “It’s spring—and the poseurs are in bloom!”

J.E. Fink:

From “The Graduate”
“Benjamin- One word.”
“I know. “Plastics”.”
“No, Benjamin, not “Plastics.”
“Not “Plastics?”  “Then what?”


Any cut can lead to infection which can lead to death.  So therefore, anybody who does anything that might cause another person to get cut is potentially liable for death?  I guess we are throwing proximate cause completely out the window. In that case, the plaintiff would not have died had she stayed home that day. Therefore, her own negligence was a superseding cause.

CT Lawyer:

Yes, an injury was forseeable. Baggers/clerks double bag to avoid items falling through the bag. Some of these items are heavy (milk, ice, bags or grapefruit, etc.) Since the grocer must know that certain merchandise accumulated in a bag is heavy and could, if not properly double bagged, pentrate the bag, fall on a customer carrying the bag and land on a toe that’s directly under the bag, it’s forseeable that complications, such an infection, could arise from such from such negligence - even death.

Nebraska is a modified comparative fault state. The tortfeasor avoids liability if less than 50% at fault, which is not the case here in my opinion. Now the fact you are dealing with a Nebraska jury, if you so choose, is a different issue… I think the claim has legs and is not frivolous.

Hadley v. Baxendale:

They were the best of comments and they were the worst of comments.

The best:  “the husband shouldn’t be allowed to recover in any event, as he obviously was exploiting the male power structure by forcing his wife to do the grocery shopping.”  it;s the best because there are many deluded people who post here who would shrilly argue that point-the same ones who fling gratuitous barbs at “white males” wherever they may, or may not, exist.

The worst:  that the whole tragedy is to be blamed on “corporations.”  This guy would villify Wal-mart (which FTR I hate, too) but not the roadside vegetable stand? My wife’s antique store?  Well OK the latter is an LLC, but single member, so intrinsically evil? benignly human?

The whole “corporatios are evil” screed sprang from the preciously naive “occupy wall street” jamborees, where those who knew nothing about the free market process, and could not engage critical thinking, frolicked about in the pleasant weather for a few days or weeks, railing against the Heffalump they called “corporations” and any officer of same.  Sleeping in tents made by North Face, talking on phones made by Apple and connected to T-mobile, withdrawing cash from ATM’s linked to Citibank to buy more muffins from Starbucks and granola from General Mills; clueless that they all needed CORPORATIONS! for their slumber party.  But the weather turned nippy, the allowance dried up, the taxpayers were tired of paying for the festival, and away they went like Peter Pan growing up. Except the guy here who aptly calls himself “stupid lawyer” (Mods: that’s not a personal attack, just a quote).


What evidence is there that the bag was “overstuffed”?  It’s being automatically assumed the bag was overstuffed because it was reported it broke.  If the Walmart employee properly filled the bag within the bag manufacturer’s specifications, it would not be foreseeable that the bag would break, would it?

To read all the comments:

About This Blog

We will discuss current legal issues related to the practice of medicine.

Disclosure: Tony Francis, MD, JD, has disclosed no relevant financial relationships.

  • Tony Francis

    Graduated with MD degree in 1977, performed residency in Orthopedic Surgery,  Graduated with a JD and LLD in 1987. Graduated with Master of Science in Quantum Mechanics and Computational Chemistry in 1999.

    Director of  "Legal Medicine Research" and writes advisory reports for US Federal Judges. 


The content of this blog does not necessarily reflect the viewpoints of Medscape.
Share This
Add this blog page to your favorite Social Media site.

All material on this website is protected by copyright, Copyright © 1994-2014 by WebMD LLC. This website also contains material copyrighted by 3rd parties.