CAPE GIRARDEAU — A federal judge has granted summary judgment to retailer Menard, Inc. in a personal injury claim alleging steel pallet racks fell on a man's head.
U.S. District Judge Abbie Crites-Leoni found that plaintiff Mitch Tillman presented no evidence for a jury to reasonably conclude that a display where the racks were stored constituted a dangerous condition that the retailer knew or could have known about.
"Tillman has no memory of the incident, and (his wife) Karen Tillman did not see the shelving fall," Crites-Leoni wrote in a Nov. 5 memorandum and order for the U.S. District Court for the Eastern District of Missouri, Southeastern Division. "There are no other eyewitnesses to the incident."
The alleged incident took place on Aug. 26, 2016 at a store in Cape Girardeau. Tillman alleged that while he was picking up merchandise from a bottom rack of shelving, steel racks struck him in the head, severely injuring him.
"Tillman has no memories of August 26, 2016," Crites-Leoni wrote. "He has never had a personal memory of the incident. Rather, his first memory was of the following day. Tillman has no opinions as to what Menard, Inc. did or did not do that may have caused the incident."
Crites-Leoni also wrote that Tillman’s testimony that a banner and cross bar were absent at the time of the incident was refuted by a photograph taken immediately after the incident.
In seeking summary judgment, Menard argued that Tillman could not show that the steel pallet racks constituted a dangerous condition. The company further argued that Tillman could not prove that Menard knew or should have known of the condition, because Tillman could not identify any experts to testify that the placement of the steel shelving pallets was unreasonably dangerous, that Menard knew of this condition, and that the placement of the steel pallets caused Tillman’s injuries.
On Tillman's premises liability claim, Crites-Leoni held that Tillman provided no evidence—expert or otherwise—except his "bare assertions" that the display presented a dangerous condition.
On his res ispa loquitor argument—which would allow a jury to infer negligence from circumstantial evidence—Crites-Leoni ruled that it failed as a matter of law.
"Tillman has produced no evidence, circumstantial or direct, supporting his claim that the incident was caused by Defendant," she wrote. "Defendant, on the other hand, has introduced the opinion of expert William Nelson that the incident did not occur as alleged by Tillman. Tillman has not demonstrated the presence of a genuine issue of material fact for trial."