I Scream, You Scream, We All Scream for Ice Cream - August 2012

I have many fond childhood memories of ice cream shops.  They were cool, well lit and sparkling clean.  The hypnotic hum of the hypnotic ceiling fans, the delicious smell of fudge, bananas, and chocolate, and the menus featuring photos of tantalizing sundaes, splits, and shakes were almost more than my excited senses could handle.  While waiting to be served, my friends and I would entertain ourselves by spinning around on the bright red barstools.  We’d spin them around faster and faster, until an adult came ‘round to spoil the fun.  Little did we know that we may have been contributing to serious personal injuries.

 

In September of 1971, two ladies decided to escape the North Carolina heat by having lunch at a Durham ice cream shop.  Other customers had already filled the booths, so the pair took a place at the counter.  As one of the ladies sat on the bar stool, its seat flipped and threw her onto the floor injuring her back.  After helping the lady to her feet, the store manager apologized and told her to send him the medical bills.  Things apparently escalated from there because six years later, our State Supreme Court gave its opinion concerning the liability of the store for the lady’s injuries.

The defendants maintained that they were not liable for the malfunctioning stool.  They  admitted that the stools were defective when they were first installed, but claimed that they had been repaired.  The store management said it had no problems with the stools after the repairs.  Despite this testimony, the Court ruled that the store’s own employees may have provided the evidence the plaintiff needed.

The customer testified that when she returned to the store with her doctor bills, the assistant manager told her that the store had been “having problems with the stools, and that the children came in and turned the tops.”  She allegedly told the customer that she had asked the company that made the stools to fix them but that they hadn’t “done anything about them.”  The Court ruled that if the assistant manager made such statements, they would be sufficient evidence of the store’s liability.  The statements  showed that the store knew or should have known of continuing defects in the counter stools.

This case points to the need for all businesses, no matter how small, to have risk management policies.  A good policy would:

1.       Instruct employees how to respond to incidents including injured customers,

2.       Explain the need to document an incident at or near the time it occurs,

3.      Describe how to preserve evidence concerning incidents, and

4.      Tell employees how to notify appropriate personnel when an incident takes place.

In the ice cream parlor case, employees should have provided first aid to the customer after she fell.  Management should NOT have agreed to pay the customer’s medical bills.  At the time the store manager made that offer, he could not have known the extent of the medical bills.  Nor did he know whether the customer had a pre-existing back condition that would make the customer more susceptible to an injury to her back.  Finally, he did not know whether making the offer to the customer would cause the store’s insurance company to decline coverage.

The employees who witnessed the accident should have documented it shortly after  they knew the customer was medically stable.  They should have taken photographs of the broken stool and the location in the store where the customer fell.  They should have recorded the date and time of the incident as well as the names and contact information of any employees who witnessed it.  They should have recorded the extent of the customer’s injuries at the time she fell including any statements she made about what happened or whether she was hurt.  They should certainly not have discussed previous problems with the bar stools.

Management should have stored the broken stool in a secure location in the store so that it would be available to their insurance carrier if needed.  Finally, management should have notified the carrier as soon as possible and should have documented this notification.  Failure to notify an insurance carrier of potential liability can result in loss of insurance coverage.

As a kid whirling around on the shiny red stool, I had no idea of the dangers and pitfalls associated with bar stools.  Now, I see them as potential disaster areas.  That’s probably why I always choose a booth!