Daily Press: Gloucester jury awards $5 million verdict in Food Lion case

Shopper suffered massive brain injury after being struck by stocking cart, falling at store

By Peter Dujardin, pdujardin@dailypress.com | 247-4749

6:20 p.m. EST, February 5, 2013

GLOUCESTER — A jury in Gloucester County last week awarded $5 million to a woman who suffered a severe brain injury after being struck by an employee’s stocking cart while shopping at a Food Lion nearly seven years ago.

The verdict against the grocery store company, reached Thursday following a three-day trial, ties the largest verdict ever recorded in Gloucester, said Christopher Guedri, with the Richmond firm of Allen & Allen and the attorney who represented the shopper and her family.

In August 2006, Ella Cousins, then 64, was pushing her shopping cart down the main aisle of a Food Lion in the Gloucester Courthouse area when her empty cart was struck head on by a 200-pound stocking cart.

Before the accident, the college graduate had normal intelligence and was employed as an attendant for people who couldn’t care for themselves, Guedri said. Now, he said, Cousins is severely mentally impaired and requires around-the-clock care and supervision.

“By all accounts, she has reached maximum medical improvement, and she will never become any better,” Guedri said of Cousins, now 70. Her condition, he said, is likely to deteriorate.

After the trial, the seven-member jury in Gloucester Circuit Court determined that Food Lion was responsible.

The day of the accident, a female grocery employee, Barbara Hopper, had packed the wheeled stocking cart too high with beauty care items, Guedri said. The totes on the cart were stacked so high that the 5-foot-1 employee couldn’t see over the top of them.

Hopper also was pushing the cart rather than pulling it, in violation of a store policy to pull the cart to prevent such accidents, Guedri said. The employee, who no longer works for Food Lion, said she never saw Cousins until she was on the floor.

For nearly seven years, Guedri said, Cousins’ daughter and granddaughter provided her care, which Guedri estimated would have cost about $200,000 a year if it was paid for. The granddaughter, Guedri said, is in her 20s and has put off going to college to care for her grandmother.

One of the attorneys who represented Food Lion at trial, Kevin Keller from Wilcox & Savage in Norfolk, did not return a phone message left Tuesday.

“We are disappointed by the verdict, and we are considering our options at this time, including appeal,” said Christy Phillips-Brown, a spokeswoman for Food Lion, based in Salisbury, N.C., and a division of Delhaize America.

The case was initially tried in January 2010, with an entirely different outcome.

At that trial, Food Lion admitted Hopper was negligent, Guedri said. But the company asserted — and the jury agreed — that Cousins had “contributory negligence” and should have gotten out of the way of the cart. Under Virginia law, someone who contributes to the negligence can’t get damages.

Guedri appealed, contending Food Lion had not properly vouched for the accuracy of a surveillance system that was running the day of the accident. For example, Guedri said, Food Lion should have had experts testify about the system.

In January 2012, the Virginia Supreme Court agreed with Guedri, reversing the jury’s finding and remanding it for a new trial.

Guedri also had a change in tactics. In the first trial, Guedri said he objected to the introduction of the fuzzy surveillance tape, which snapped pictures of the two carts approaching each before and after the accident.

But trying to block the tape at trial, Guedri said, likely left the 2010 jurors with the impression that he was afraid of the pictures. So this time, he said, he welcomed the images, contending they backed his version of the case. “I embraced the images and introduced them in my case,” Guedri said. “They came in from me.”

Republished from Newport News, VA., Daily Press: http://articles.dailypress.com/2013-02-05/news/dp-nws-gloucester-verdict-20130205_1_food-lion-cart-million-verdict

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