Family Dollar not required to list falling merchandise suits, appeals court rules

David Yates Nov. 7, 2011, 8:22am


The Texas Ninth District Court of Appeals recently overturned a lower court's order requiring Family Dollar to produce a list of all lawsuits relating to falling merchandise.

As previously reported, Mary Jane Walters filed suit against Family Dollar Stores of Texas on Jan. 12 in Jefferson County District Court, claiming she twisted her ankle while avoiding falling merchandise.

According to the petition, on Sept. 11, 2009, Walters was shopping at the Family Dollar store on 11th Street in Beaumont when a box of merchandise tumbled from a shelf and fell on her.

Seven months into the litigation, Judge Bob Wortham, at the plaintiff's request, ordered Family Dollar to create a document that the defendant claimed did not exist -- a list of all "incidents and lawsuits relating to falling merchandise in the Family Dollar stores located in the county ... for the five years prior to (Walters' alleged injury)," court papers say.

Court records show that Family Dollar appealed the order on Aug. 8, asserting that the judge abused his discretion when he granted the plaintiff's request for the list.

Finding the ruling overly broad, the Ninth Court issued its memorandum opinion on Nov. 3, directing Judge Wortham to vacate the discovery order.

"Because Walters's request could have been more narrowly tailored to heighten relevance, and because the trial court's order, although narrower than Walters's request, still requires Family Dollar to produce tenuous information as related to Walters's claim, the trial court's discovery order is overly broad and not narrowly tailored to comply with the discovery rules," the opinion states.

"We are confident the trial court will vacate its orders to compel production of the lists at issue in this case, and that Walters, should she seek to obtain further discovery, will serve narrowly tailored discovery that complies with the Texas Rules of Civil Procedure."

Walters twisted her knees and right ankle while in the midst of trying to dodge "picture frames and other items," the suit states.

According to the lawsuit, Walters alleges that instead of offering her assistance a store employee told her she "was lucky that she didn't get hit by the big mirror back there" and that "merchandise was always falling" from that area of the store.

At the time of the incident, Walters was already recovering from ankle surgery, the suit states.

Walters alleges Family Dollar negligently failed to inspect and maintain its premises and warn shoppers of the dangerous condition.

She is suing the company for her alleged past and future medical expenses, mental anguish, pain, impairment, disfigurement and lost wages.

The Law Offices of Gilbert T. Adams in Beaumont represents Walters.

Attorneys Zach Mayer, Robin R. Gant and Joshua M. Sandler of the Dallas law firm Kane Russell Coleman & Logan represent Family Dollar.

Jefferson County Trial case No. E189-146
9th District Appellate case No. 09-11-00432-CV

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