Supreme Court hears dispute over when falling merchandise can be deemed ‘reasonably foreseeable’ in Galassi v. Lowe’s

The Supreme Court heard arguments on Nov. 14 in Galassi v. Lowe’s over whether the court’s reasonable-foreseeability exception to the usual notice requirement should be applied automatically to falling merchandise or limited to hazards tied to a specific location and mode of operation.

Jonathan Misson, counsel for petitioner Lowe’s Home Centers, told the justices the key question is whether recent precedent, including Johnson, made falling merchandise per se foreseeable. "Forty years of jurisprudence, beginning with Pimentel all the way through Johnson, has made clear that the exception is limited, not a per se rule, and involves a hazard specific and location specific analysis," Misson said, urging reversal of the Court of Appeals’ decision because, he said, the Galassis had not presented evidence about what caused the hazard in the Olympia store’s garden center.

The Galassis’ counsel, Gary Preble, said Mrs. Galassi’s deposition and store photos showed the roll of wire fencing was stored high, was askew and stuck out over a restraining bar, and that those facts — combined with the department’s self-service operation — created a question for the jury. "I was looking for the fence to keep the rabbits out. I touched it, it popped out, it fell on my foot," Preble quoted from Mrs. Galassi’s testimony to illustrate the claimed link between the displayed product and the injury.

Daniel Huntington, arguing for the Washington State Association for Justice as amicus, urged the court to view the storage method (25-foot rolls stored about six feet off the ground in bins) and the self-service context as relevant to foreseeability and to treat the Galassis’ evidence as sufficient to survive summary judgment.

Justices pressed both sides on the proper legal standard and evidentiary thresholds. Several asked whether the court should adopt a per se rule that falling merchandise in big-box retailers is always foreseeable or whether the inquiry must remain fact-specific — for example: the height and weight of the item, how it was stored, whether restraining bars were present, and how often customers accessed and replaced items. Petitioner's counsel warned that treating routine inspection policies or general self-service operations as dispositive could make summary judgment impossible for defendants; respondents and amicus countered that certain display methods and apparent hazards can create triable issues.

Both sides invoked prior state decisions, including Pimentel, Wiltse and Johnson, to frame the scope of the exception; counsel disagreed about which older factors and precedents must drive the foreseeability inquiry. The justices also explored whether the question is one of law or fact — that is, whether the court should decide foreseeability as a legal matter or leave it to juries — and tested hypotheticals (for example, whether a falling paper-towel roll would present the same risk as a heavy roll of fencing).

The court heard rebuttal from petitioner counsel re-emphasizing the absence in the record of evidence about weight, frequency of similar events, or cause, and Misson asked the court to reverse the Court of Appeals. The case was submitted and the court adjourned.

The ruling will determine whether and when the reasonable-foreseeability exception relieves plaintiffs of proving notice in falling-merchandise cases or whether plaintiffs must present hazard- and location-specific evidence to survive summary judgment.