On 10.22.2011 around 2 pm a canopy fell over and knocked my son to the floor, I was within 4-5 feet from him. Me, my 7 year old daughter and boyfriend all watched it happen and I'm kicking myself in the *** for not being able to pull him out of the way. At first when we got him up he was screaming and his left arm was just hanging there, I got his coat off him and he could not move his arm whatsoever, my boyfriend ran to get help. It took between 10-15 minutes for a employee or manager to get over to us, I took a pic of what it was that fell on him but they tried moving them and one was not where it originally was when it fell, the emt's were called in and said it feels as if his arm has been partially dislocated, we left for hospital around 2:40 drove him myself. Waited in the waiting room of children's mercy for about 2 1/2 hours, X-rays showed his shoulder was fine, BUT right above his elbow is broken. It took me and a nurse to hold him still, a doc to hold his arm in position and a doc to place the cast on him. In hospital for 7 hours. A very tired and hurting son. I do have insurance that is covering most if not all medical so far. My son is in special ED for PDD and maybe autistic, its now been 24 hours he's still hurting and is on pain meds. What should I do, I would like to sue Wal Mart for medical expenses past and future, gas and mileage to drive an hour to doctor's. Should I go for anything else? I'm looking into a lawyer but I'm so lost with all of this. I would have never thought Wal Mart an unsafe place for families and kids.

Stacks of boxes do not just "fall". Who hit them or knocked them over? Another customer? Or was your son looking at them and knocked them over?

It may be true that boxes don't just fall, but Wal-Mart associates should be stacking them in a manner which prevents them from falling from less than a cart crashing into them. We are trained to stack them like a "brick wall" and then to "bump" them with our hip... Most of us bump them harder than a 4 year old would be able to push into during a fall...

If the box fell from less than a really hard hit "cart crashing" then somebody didn't do their job right...

I would try to see surveillance footage of the incident and base my decision on that. You could go straight for a lawsuit, but Wal-Mart will bring the footage as evidence. If it looks like your son was pushing and pulling the boxes then there is a good chance that their super lawyers will press for dismissal...

Keep in mind that I'm not a lawyer, just a Wal-Mart employee... I say, you should do what you can to see the video footage and base your decision on what you see...

Go in and speak directly to the Store Manager, about possibly seeing the footage, not a Shift Manager, not an Assistant Manager, and not a Supervisor... At my store the Store Manager usually gets in around 7:00 AM. His/her job is to make sure the store safe, secure, and looks good for the customer. He/she will get to the bottom of the incident.

Best of luck, and I hope your son gets better.

Its not a box. Think how the tents are but it's a canapy they were leaning on the wall, not on a shelf.
I can not find the item on line to post a link to it, but I do have pics on my phone. This is the closest thing I can find to it and its not showing it in its caring case.

And I to have worked at Walmart and we were NEVER taught to pump it or place items where just walking by and gently brushing it with the edge of a coat could knock it over!

Hm... well I started a few months ago... maybe a newish policy then... It was in our orientation materials a good 5 times... Leaning against something is a whole other story... Still, see the video if you can, base your decision on that.

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Originally Posted by jldaugherty

... I do have insurance that is covering most if not all medical so far. My son is in special ED for PDD and maybe autistic, its now been 24 hours he's still hurting and is on pain meds. What should I do, I would like to sue Wal Mart for medical expenses past and future, gas and mileage to drive an hour to doctor's. ...

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By all means talk to an attorney. You probably can get a free consultation. An attorney may agree to write demand letter, but when push comes to shove I really doubt that the case would be worth a lawsuit.

See if your insurance company would be willing to assist you. They are "subrogated" for the amount they have paid, and may be willing to ask for something more for you as well.

WHOA. There is a bit missing here. Did you talk to the Store Manager? Did the Mgr make out an accident report? Why didn't the EMTs take your son to the hospital?

Before you think of suing, you need to put in a claim with Wal Mart. They may pay your expenses without an issue. Only if Wal Mart denies the claim do you start thinking of a lawsuit.

If you consult with a personal injury attorney they will not charge you a consultation fee or a fee for their legal services but take their fees out of whatever settlement is made with WalMart. By all means take your phone and download and print out the photos and take the accident report and the hospital records along with you when you see the accident attorney. Having a broken arm is something very serious and needs the attention of an attorney to handle for you. This is not just a nuisance injury claim but a serious claim as bones were broken.

Other then you guys seeming to point it was our fault it happened. My new layer did get a copy of the video and my son NEVER touched it. It also showes on the video when the manager was there it fell over again but a employ grabed it, also no one touched it when it fell the second time.

We never meant to insinuate that it was your fault. We were just trying to prepare you for what wal-mart might claim if you hadn't seen the video.

Now that you have the video, you can proceed a few different ways.

ScottGem said to start with a claim through wal-mart and see where that leads. If they don't want to help anymore than they have, then proceed to a lawsuit... Talk with your lawyer. S/he will have his/her own advice...

Again, we only can give opinions based on the information that is given. We didn't know who was for sure at fault until you said what the video showed. Now that you have the video, you can be sure that Wal-Mart cannot blame you or your son.

Again, I hope your son's arm heals and he gets better. Good luck with whatever course of action you take.


(Side note: I think I might have accidentally hit one of the negative ratings while scrolling up and down on my laptop... :( I didn't mean to do that whatsoever. If an admin/mod can reverse that then please do... Otherwise, I'm very sorry for it happening... )

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Originally Posted by jldaugherty

Other then you guys seeming to point it was our fault it happend. my new layer did get a copy of the video and my son NEVER touched it. it also showes on the video when the manager was there it fell over again but a employ grabed it, also no one touched it when it fell the second time.

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I'm sorry but something smells fishy to me. Maybe I'm just cynical. According to you this happened on Saturday afternoon. On Tuesday morning just after midnight you post that you have a lawyer who has ALREADY obtained the video.

This seems to be moving way too fast. Again, I question why you are jumping to a lawsuit. A broken arm is not permanent damage. Your medical costs are being covered by your insurance so you have no immediate outlay. There is a strong possibility that Wal Mart will pay your bills and expenses WITHOUT a lawyer.

I doubt if you will ever see any money from this incident. Yes, your health insurance carrier will be reimbursed for what it has paid out. You might get a little money for time and expenses. But your lawyer will take a chunk of that.

Accidents happen. Maybe Wal Mart was negligent in the way they set up this canopy. But the next time you complain about high prices, think about the cost of insurance because of people like you who jump to a law suit.

Don't get me wrong, I do not think you or your son was at fault here. I think Wal Mart should pay your expenses. But I think you may have dollar signs dancing before your eyes. You may be thinking your son will have a college education paid for out of this. And I think that's shameful. Maybe I'm reading you wrong, if so I apologize. But based on the facts that you have presented, I'm sticking with my opinion.

IT did help that on Sunday I did call the walmart and request the tape, the manager I talked to was a bit rude and hung up on me, saying that there was nothing they could do to help me. My son is in speical ed, and intill further notice has been removed from occupational therapy. And sadly there is no way my son will be attending any college because of his disablity. All I'm going for if they do not resulve out of suit is. Medical to be rempurshed, for gas/mileage for having to go to dr.'s appoiment and therpery at witch had this never had happened we woulnt be going and the first place. And a little money for him, rather they give it to us or its set into a saving account intill his 18. It's not like I'm asken for millions of dollars here.

Yes the layer I have seen will take 40% of winnings, but we have yet made a contract with them. He won't accept the case intill we get medical bills so far and a estement of future bills. Then if he decides it's a winning case worth his time will he take the case, I still have time to look around and talk to other layers. I don't feel as if I can do this alone as I know nothing of what is leagel and what should be accounted for. I had a lot of questions that there pareleagel tried to answer but I got a lot I don't know's.

I'm not suggesting you were asking for millions. But my questions is did the manager completely blow you off or just say he couldn't give you the video? Was a claim filed or did they refuse to give you any info about filing a claim?

If they refused to file a claim or put you in contact with their insurance, then you are justified in getting an attorney. But I would give them the chance to pay first. You said the attorney will take 40% (that's high) Which means you likely will not see any money here. Its all going to go for medical bills and attorney fees.

Please feel free to ask us any of your questions. In the meantime keep a record of ANYTHING you spend in relation to treatment. Did you tell your insurance company this was the result of an accident? Then may help you recover from the Wal Mart.

I am sorry but it was my first thought, I see 4 or 5 year olds running wild in Walmart all the time, climbing and jumping on things, I am surprised, they don't haul kids out of Walmart to the ER every day, they way many parents let the kids go wild.

And again, in most cases, boxes just don't fall, something has to have caused or started it to fall, another customer, bad stacking, something. That is the issue, as to who is at fault.

As noted, if the tape shows, that the child or you had nothing to do with the box falling then the store should cover the needed medical bills.

But I also agree I have never known Walmart with they felt the claim was valid, not to pay it. If of course as Scott noted, you had an attorney within a couple days of the accident, at that point, they are not going to talk to you any more.

I've been into WalMarts in Missouri years ago and they were rather lax about stacking boxes, etc. but this was a canopy and not a box. They are at fault here, not your son.

And this is more than just a nuisance injury as bones were broken. Don't let anyone persuade you to not sue WalMart. You have a perfectly legit case here if the video shows no one was around the object that injured your son and broke his arm. This is not an ordinary innocuous accident.

Have your attorney contact WalMart and see what they will pay. If they don't pay all the medical bills ( and follow up care) then have your attorney sue them. The injury is provable by an X-ray. This is not just a soft tissue injury which is hard to prove, but a broken bone injury which is worth far more.

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Originally Posted by twinkiedooter

And this is more than just a nuisance injury as bones were broken. Don't let anyone persuade you to not sue WalMart. You have a perfectly legit case here if the video shows no one was around the object that injured your son and broke his arm. This is not an ordinary innocuous accident.

Have your attorney contact WalMart and see what they will pay. If they don't pay all the medical bills ( and follow up care) then have your attorney sue them. The injury is provable by an XRay. This is not just a soft tissue injury which is hard to prove, but a broken bone injury which is worth far more.

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A lawsuit should be a last resort when someone does not meet their obligations. As far as we know here no claim has been filed so we don't know if Wal Mart will not pay expenses. The OP certainly does have a case against Wal Mart, but ONLY if they don't pay the expenses.

If she hires an attorney now, she will have to pay that attorney on top of the medical expenses and Wal Mart won't cover that.

And I also strenuously object to the notion that certain types of injuries are "worth more" than others.

The bottom line here is that the OP's expenses have been mostly covered by their health insurance. Therefore, there isn't a pressing need for litigation. The OP should wait to see what Wal Mart does with her claim before incurring the expense of an attorney. There is plenty of time to retain an attorney if Wal Mart does not pay ALL the expenses.

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And I also strenuously object to the notion that certain types of injuries are "worth more" than others.

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I have to disagree here... Would you say a small paper cut is the same as a broken bone?

True, they are both injuries, and both hurt for an extended period, but a paper cut will heal with (safely) $20 worth of supplies (Neosporin, band-aids, and something to distract from the pain [ie, some lollipops or such])

A broken bone will, no doubt about it, cost quite a bit more.

I could see Wal-Mart giving maybe $50 for a paper cut, though they would likely just give a band aid.
I can't even imagine what they would need to payout for a broken bone...

My point is that different injuries cost different amounts to take care of. They aren't all the same...

I do agree with most of everything else you said. There should be a claim made through Wal-Mart before a lawsuit is pursued. If the individual store won't help then a call to Corporate is in order to get the store cooperative... If both the store and Corporate HQ don't want to help, then by all means there should be a lawsuit...

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Originally Posted by solidzane

I have to disagree here... Would you say a small paper cut is the same as a broken bone?

True, they are both injuries, and both hurt for an extended period of time, but a paper cut will heal with (safely) $20 worth of supplies (Neosporin, band-aids, and something to distract from the pain [ie, some lollipops or such])

A broken bone will, no doubt about it, cost quite a bit more.

I could see Wal-Mart giving maybe $50 for a paper cut, though they would likely just give a band aid.
I can't even imagine what they would need to payout for a broken bone...

My point is that different injuries cost different amounts to take care of. They aren't all the same...

I do agree with most of everything else you said. There should be a claim made through Wal-Mart before a lawsuit is pursued. If the individual store won't help then a call to Corporate is in order to get the store cooperative... If both the store and Corporate HQ don't want to help, then by all means there should be a lawsuit...

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I'm a liability investigator -

First, I have to serve a subpoena on Walmart to get their video of anything, including accidents involving their own employees. I would like to know how OP was able to get the video in a couple of days.

Second, her health insurance pays for her medical bills. This is not an uninsured person so medical bills matter little.

Third, WalMart is not an unsafe place. Any place is unsafe if children are not supervised. I do slips and falls, merchandise falling on people, relatively frequently. I have NEVER investigated a case where a child was under the control of a parent/guardian and been injured - merchandise doesn't leap off the shelves onto people. OP herself says she was kicking herself because she wasn't supervising him - and that will be part of WM's defense. How many other people shopped there and nothing fell over on them?

Can WM foresee everything everyone can do that will cause that person an injury? No. Is that even feasible? No.

Fourth, WM sends its claims to corporate. It does not have a "each store takes care of itself" policy. You fill out an accident report (which I presume was done - ?) and that is forwarded to corporate AND the insurance carrier for WM.

OP's interest is suing - "What should I do, I would like to sue Wal Mart for medical expenses past and future, gas and mileage to drive an hour to doctor's. Should I go for anything else? I'm looking into a lawyer but I'm so lost with all of this. I would have never thought Wal Mart an unsafe place for families and kids."

As far as OP driving her son to the hospital, why didn't she request an ambulance? If the EMT's showed up in MY area she had to sign a release or they would have "automatically" transported him.

Yes, she should get an Attorney if it is her intention to sue before she makes any further statements that compromise her claim (such as she is kicking herself for not supervising him).

I have no devotion or allegiance to WM - there happen to be several of their superstores in my area and so people get injured... I have also NEVER found WM not to be friendly or cooperative BUT if you scream at people, they will scream back (trained or untrained in customer relations). They are insured. They are not unreasonable. WM managers and executives are also not stupid. They will investigate the claim intensively and make an offer. That's how WM works at the corporate level.

With respect to Solidzane I question whether he, as an employee of WM, should be answering questions relating to WM's legal responsibilities and, in this case, policies, which he may or may not be able to disclose under WM's personnel policy.

When posting in the legal forum I would place my trust in people with actual legal experience, training, great research skills. "We" often disagree with each other but "we" all are coming from a place of experience/training/research.

I'm a liability investigator. That's where I'm coming from and I can tell you how I would investigate and evaluate this from BOTH sides - the OP's and WM's.

If the OP was able to get the video in a very sort period (and I'm assuming WM copied the original and gave her the copy or else this makes no sense) I'm considering hiring her because once I ID myself I need paperwork to do so.

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Originally Posted by solidzane

A broken bone will, no doubt about it, cost quite a bit more.

My point is that different injuries cost different amounts to take care of. They aren't all the same...

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You misunderstand me. Clearly certain types of injuries will cost more to treat than others. But the word used was WORTH, not COST. If twinkiedooter had said cost more, I wouldn't have batted an eye. But using the word worth, especially in the context used, implies that one should sue because the award will be higher. That's why I objected to the term.

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Originally Posted by solidzane

I can't even imagine what they would need to payout for a broken bone...

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I CAN imagine it, they will have to pay the hospital costs for setting and treating the arm. They will have to pay for follow-up doctor visits. They will have to pay for therapy that might be needed to restore the muscle on the arm. They may have to pay for lost wages or other expenses for procuring this medical treatment. All told we may be talking about high 4 to low 5 figures.



Remember this is a law forum. Your previous comments were helpful because of your familiarity with Wal Mart. But your answer here was not from a law perspective and was inappropriate.

And it does sound like while they may not be asking for millions, they do want more than just their current medical bills paid, since they did comment on putting money away for while child was grown. At best perhaps a few thousand over actual bills, of which attorney will get 30 to 40 percent of total payment, so my guess the OP will get a few hundred dollars over actual bills paid.
** also remember if Walmart pays the claim, the OP has to pay back her health insurance company for the money they paid out.