The Law

Dumpster Diver Sues by Ron Davis An admitted thief has lost his bid to sue the owner of an Ohio shopping center and collect for injuries he suffered during a bold burglary attempt. The shopping center, located in Alliance and developed by Wal-Mart, houses several retail stores. And the thief had gone to the Wal-Mart store by car just before dawn one morning for the sole purpose of stealing computer items. Once in the store, he loaded a shopping cart with computers and related items, disabled a fire alarm, and pushed the cart out a fire exit. He then left the store through the front door, retrieved the cart, and pushed it to his car. But while loading the stolen items, he spotted a police car slowly coming toward him with its lights out. Fearing possible arrest, he fled on foot. He had gone only a short distance, however, when he spotted a trash dumpster. Hoping to avoid arrest, he hopped into the dumpster and covered himself with loose cardboard items. Meantime, a front-end loader was making its rounds of the various tenants of the Wal-Mart property. At each stop, the loader’s driver would service the tenant’s refuse by picking up a dumpster or trash can there with the vehicle’s forklift and emptying the trash items into the back of the vehicle. Then he would compact the trash load and head for his next stop. Unknowingly, he arrived at the dumpster where the thief had hidden and began servicing it. In so doing he lifted the thief along with the trashed items into the back of the vehicle, and then compacted him along with the trash. The driver then continued to service the remaining tenants in a similar way. The thief was able, however, to try to call for help with his cell phone. But unable to contact any family or friends, he alerted police to his situation. Officers quickly responded by tracking down the front-end loader and rescuing him. But the ordeal cost him a broken pelvis, a torn urethra, and a broken ankle, requiring an extended stay in a hospital and a nursing home. He eventually sued Wal-Mart as owner of the shopping center where the incident occurred, claiming, among other charges, that Wal-Mart “failed to provide for safety concerns regarding the dangers arising out of [its] … garbage and waste disposal agreements and equipment.” In response, Wal-Mart argued that it owed the thief “no duty of care,” adding that even if such duty existed, the thief’s own fault is so great that recovery is precluded. An Ohio court agreed that the thief failed to provide specific facts showing that Wal-Mart breached any duty to him. The thief appealed that decision. A Court of Appeals also ruled in favor of Wal-Mart, explaining that the injured thief’s argument “falls short of creating a genuine issue of material fact, and he has not established a duty owed to him by [Wal-Mart] or any breach thereof.” (Brienzo v. Wal-Mart Super Ctr., 2013 WL 2390265 [Ohio App. 5 Dist.]) Decision: June 2013 Published: July 2013