It’s a scenario everyone has seen, and may also be guilty of: when finished with shopping and after loading up the car, the cart is left just far enough away to leave the parking spot — whether or not a corral is nearby.  Perhaps some of us (or our cars) have even been victims of a runaway cart.

Such were the underlying facts in Bolge v. Wal-Mart.  Video surveillance was the evidentiary key to success for Wal-Mart in this lack of notice case venued in the Federal Court for the District of New Jersey.

On a windy day, a Wal-Mart shopper parked in a handicapped-designated spot, unloaded items from the carriage, and instead of walking it over to a nearby corral, pushed it aside and drove away.  Seconds later, a Wal-Mart employee charged with removing carriages in the parking lot appears on the video footage, which shows the cart essentially take flight from the wind approximately 45 seconds after being left behind by the customer.  53 seconds after being left to its own devices, the plaintiff is struck by the unattended cart.

The plaintiff’s case against Wal-Mart was predicated on two theories.  First, Wal-Mart should have had a carriage corral in closer proximity to the handicapped-designated spots, knowing that handicapped customers would be less able to return the carriage to a corral further from the parking spots.  As such, she was seeking protection under the Americans with Disabilities Act which provides protections for those with disabilities.  Second, she argued that Wal-Mart failed to adhere to its own policy of heightened policing of the parking lot for loose carts in particularly windy conditions.

The plaintiff’s first argument was rejected; the ADA was enacted to benefit those with disabilities, and she was not amongst that protected class.  As to plaintiff’s second argument, the District Court found that 53 seconds from the point that the carriage was left unattended to the point of impact with the plaintiff was insufficient to establish that Wal-Mart knew or should have known that an unattended cart existed in its parking lot.  The case against Wal-Mart was dismissed on summary judgment.

Thanks to Emily Kidder for her contribution to this post, and please write to Mike Bono for more information.