May, 2003 | BusinessWest
By George O’Brien
Surveillance camera 4 at the Cumberland Farms store at the corner of Main and Sugarloaf streets in South Deerfield picked up Roger Storozuk as he approached the counter to pay for a few items he collected after pumping gas. It followed him as he walked toward the door, then turned around and returned no the register to buy something he had forgotten.
It was a decision that would ultimately change his life in ways he couldn’t have imagined.
Indeed, over the next few seconds, the surveillance camera would record some horrific images as Storozuk walked out the door, turned to his left, took two steps, and was then propelled through the front window of the store after being struck by a pick-up truck as it approached the business. The camera also captured the chaos that followed, as customers and passersby tried to help Storozuk, a disabled Vietnam veteran, who was knocked over backwards – hitting his head on the store’s floor in the process – and cut badly by the shattered window glass.
A customer, a World War II veteran, called upon lessons he learned in the field and applied a tourniquet to Storozuk’s left leg. The accident victim survived, but his leg was later amputated below the knee. Subsequent operations would remove most of the leg.
That surveillance tape from the afternoon of July 20, 2001, will undoubtedly be a key piece of evidence in a suit being brought against Canton, Mass.-based Cumberland Farms. The suit, filed in Hampshire Superior Court and due to be heard early next year, claims the convenience store chain was negligent because it did not have curbing, bollards, or other barriers in front of the store to prevent such an accident.
Lawyers for the plaintiff, John Sikorski, of Springfield-based Robinson Donovan; and Paul Weinberg, formerly of that firm and now a principal with the Northampton firm Weinberg & Garber, told BusinessWest that Cumberland Farms has a long track record of incidents similar to the one in Deerfield – more than 165 of them in the five years prior to the incident, according to information provided by the chain. The total includes another incident at the same store, in nearly the same parking space.
Likewise, they say the company has ignored a number of suggestions from its own employees – issued after similar accidents – to install curbs or other barriers between the parking lot and the sidewalk that runs in front of the store.
Lawyers for the defense and Cumberland Farms officials said they did not wish to be quoted for this story. John Burke, a litigator in the Springfield office of Boston-based Morrison, Mahoney and Miller, said it would be inappropriate to comment on Cumberland Farms’ general safety policies and the specific circumstances at the South Deerfield location prior to the trial.
The plaintiff’s lawyers, who are seeking a $9 million settlement from the chain, speculate that the defense will try to show that the driver who struck Storozuk was going so fast and was so out-of-control (she hit the gas instead of the brake as she approached the store) that mere posts or curbing could not have prevented that calamity.
And while Sikorski and Weinberg say they have evidence that will effectively counter that claim, they told BusinessWest that they intend to prove that this was not an isolated incident, and that there are significant flaws in the chain’s parking lot designs that allow such incidents to occur. What’s more, they intend to prove that the chain knew its designs were unsafe and contributed to accidents, that one of its own executives recommended that steps be taken, and that still nothing was done.
In fact, they say the company has been so negligent on the issue that its actions – or lack of action – amount to a violation of a state consumer protection statute (Chapter 93A) as well as state building codes that require building owners to provide safe means of egress. If the 93A claim is upheld, then the Storozuk case could break new ground in the area of parking lot safety and the responsibilities of businesses in that realm, said Weinberg.
A Superior Court judge rejected the plaintiffs’ bid to amend the original complaint to include alleged violation of Chapter 93A, but that decision has been appealed.
Regardless of the outcome of the case, say Sikorski and Weinberg, the Storozuk incident offers all business owners important lessons about parking lot safety, and thus bears watching.
Line of Questioning
Sikorski said there have been so many accidents at Cumberland farms similar to the one in the Storozuk case that employees of the chain have contrived names for them.
“They call them ‘car strikes’ or ‘drive-throughs’” he said, adding that the volume of cases – as well as employee recommendations to the chain following the incidents – could become important pieces in evidence in the Storozuk trial as lawyers for the plaintiff try to show a pattern of negligence.
And as they do so, they are likely to refer repeatedly to a similar case argued by Robinson Donovan lawyers in 1988 involving a man who was injured in a parking lot mishap in many ways similar to the incident in South Deerfield.
In that case, Michael Muratore won a $5 million verdict against Springfield Sugar and Products Co. (later known as Sweet Life Foods). Muratore’s leg was crushed and subsequently amputated after a car driven by an 88-year-old man backed into him and pinned him against the wall of a building as he unloaded items in the company’s parking lot. Weinberg successfully argued that the company was negligent because it failed to place protective barriers between the parking lot and a sidewalk used by patrons entering and exiting the business.
Judge George Keady, who heard the Muratore case, acknowledged that the jury’s award was arguably high – it was said to be the largest personal-injury award in the state’s history at the time – but said it was ultimately justified because the incident could easily have been prevented.
Weinberg said at the time of the Muratore case that he expected that large jury award to bring about changes in parking lot design. While some improvements have been made, he believes there are too many business locations, including several Cumberland Farms stores, that are accidents waiting to happen.
Since taking on the case, Robinson Donovan lawyers have done extensive research on parking lot safety and have looked at conditions at a variety of chains. What they’ve found, said Weinberg, is that while many companies, including Cumberland Farms, put barriers in front of gas pumps, sheds, and coolers containing bagged ice, they don’t necessarily put them in places that can protect pedestrians.
The Storozuk case may come down to the question of just how much responsibility business owners must take for the actions of drivers in their parking lots.
What Sikorski and Weinberg say they’ll argue in the Storozuk case – and also try to impart to all business owners in the process – is the fact that, while mishaps, especially those involving older drivers, do happen, they should be anticipated, with an eye toward prevention. “People will often hit the accelerator instead of the brake,” said Sikorski. “That’s driver error, to be sure, but in any area with a high volume of traffic, business owners have to expect those types of things, and they should take reasonable steps to prevent them.”
Noted safety expert Barrett Miller said as much in an oft-cited article he wrote for Professional Safety magazine some 15 years ago. “Because accidents are predictable in parking lots, convenience stores should include pedestrian protection in their original design,” he wrote.
The Muratore case would seem to substantiate that argument, but other courts have stated that store owners have an obligation to protect customers from hazards they can foresee, and that many accidents involving reckless, elderly, or drunk drivers are not foreseeable.
What’s in Store
Weinberg told BusinessWest that no one who watches the footage of the Storozuk mishap will approach the simple act of going into a convenience store in the same way again.
“That may be the only positive thing to come from the incident,” he said, adding that Storozuk’s life has been a living hell since the accident.
He is hoping that this case will prompt the kind of reform that the Muratore case did not. “The evidence is there that simple, inexpensive steps can prevent these kinds of accidents. I simply can’t understand why Cumberland Farms and other chains don’t take those steps.”