Sears not responsible for teaching bike helmet customers how to use, high court rules

Steve Korris Oct. 27, 2010, 2:36am

Louisiana Supreme Court

Sears doesn't have to teach customers how to use bicycle helmets and other products safely, the Supreme Court of Louisiana decided on Oct. 19.

All seven Justices dismissed Sears from a suit Herman Carrier filed after his six-year old son Blake struck a pole and suffered a brain injury.

The Justices reversed Tangipahoa Parish District Judge Douglas Hughes, who denied summary judgment to Sears.

"Under current societal norms, we do not believe it is reasonable to require mass marketing retailers, such as Sears, to offer specialized point of sale advice on the thousands of products they sell," the Justices wrote in an unsigned opinion.

"Rather, it is typically understood the consumer will ask for assistance, if it is required," they wrote.

Carrier's claims against helmet maker Bell Sports and the city of Amite remain pending.

Carrier and wife Wendy bought a Bell helmet at Sears in 2001, as a Christmas gift.

Next spring, their son crashed into a pole at a city tennis court.

A puncture wound at the eyebrow resulted in brain damage.

The parents sued Bell Sports and Amite in 2002, adding Sears in 2004.

Sears moved for summary judgment, and Hughes denied it.

Sears appealed to First Circuit judges, who reversed Hughes.

Carrier's lawyer, Arthur Landry of New Orleans, appealed to the Supreme Court and argued his case on Sept. 9.

"People won't properly fit their children with bicycle helmets," he said.

Justice John Weimer asked him where a retailer's duty comes from.

Landry said, "From knowledge in the industry."

Weimer said, "What is a retailer to do, post someone? Stop them at checkout?"

Landry said, "This has not been raised in this case."

Justice Jeannette Knoll said she could think of more dangerous products.

She said, "Shoes can ruin your feet and make you old quick. They aren't told that at point of sale."

For Sears, John Ziober of Baton Rouge said the parents didn't check the helmet out in the sports department and didn't ask for help.

He said they threw away the instructions.

"They had many helmets," he said. "He's a race car driver."

Weimer asked how Sears would comply if a duty exists.

Ziober said Carrier's safety expert, James Green, told him a store should have an exemplar and a notice requiring a customer to seek assistance.

He said Green told him a parent who doesn't bring a child along should be refused.

Knoll said, "If there was no face guard and the injury was to the face, it wasn't to protect the face, right?"

Ziober said the parents allege it rotated back and exposed the forehead.

Landry argued that Louisiana law requires an approved helmet of good fit, securely fastened, for a bicycle rider less than 12.

Knoll said, "I have a hard time equating the injury with the helmet."

Landry said that according to a reconstruction expert, it rotated.

Justice Marcus Clark said, "Is any of that in the record?"

Landry said, "Not as such."

After argument the Justices studied testimony of the parents and the expert, and found no support for the claim.

They wrote that they didn't need to decide Green's qualifications because even if they accepted his testimony, it didn't establish a factual basis for a duty on the part of Sears.

"Although Mr. Green testified the fitting of bicycle helmets should be done at the point of sale, he cited no authority for this proposition other than his own opinion," they wrote.

They shrugged off his claim that 6,000 members of a national bicycle shop association employ helmet fit at point of sale, finding no evidence that Sears belongs to the group.

They added that as a matter of policy, they found no grounds for recognizing such a duty based on general principles of tort law.

Both parents testified the helmet fit their son properly, they wrote.

Wendy Carrier called it the best fitting helmet Blake ever had, they wrote.

She said they had helmets before and knew how to use them, they wrote.

"Under these circumstances, we find the responsibility to determine whether the helmet was properly fitted should rest with plaintiffs, not Sears," they wrote.

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