The plaintiff’s bar is creative and inventive. No doubt other theories of negligence to support liability for a lifting injury have been or will be asserted moving forward. The starting point for addressing such novel theories is to review the authority presented in the preceding parts of this series relating to the defined employer duties with the goal of showing that the novel theory is inconsistent with the law. Failing that, remember that neither the plaintiff nor his retained expert can simply make up law. As discussed in Part III of this series, in Allsup’s Convenience Stores, Inc. v. Warren (among others), that there has to be some factual basis for claiming that an employer behaved unreasonably by reference to an industry standard. If no one or very few in an industry actually do what an expert opines should be done, then the expert’s world view hardly constitutes an industry standard and his opinions on the subject should be excluded on that basis.

As an example, one theory that is occasionally half-heartedly asserted is that a store’s shelving inherently required the plaintiff to lift an object awkwardly by reaching into the shelving. This awkwardness, the plaintiff claims, caused or contributed to his alleged injury. Such a claim may even be factually plausible in the sense that twisting while you lift can result in injury.

But there are obvious problems with such a theory that should be explored. To begin with there is no legal support for it. Shelving, by its nature, cannot be constructed so as to always allow merchandise and material to be accessed without reaching into the shelving on occasion. There is obviously no duty not to use shelves. Further, the shelving utilized in the retail industry, does not appear to differ much from retailer to retailer at least as it relates to these issues. It is unlikely that such a theory will “catch on” in the Texas appellate courts given recent holdings narrowing nonsubscriber duties in the context of addressing “common sense” sorts of potential problems. Indeed, the Texas Supreme Court’s relatively recent decision in Brookshire Bros. v. Goss strongly implies that a shelving-induced awkward lifting claim will ultimately go nowhere because any problem associated with reaching into a shelf is obvious.

The next part in this series will address causation in lifting injury cases.