Blog

A recent opinion out of the Northern District of Illinois underscores an often-overlooked risk for retail establishments and their insurers: when an employee voluntarily assists a customer, that assistance may itself create an independent legal duty—even when a premises claim might otherwise fail.

In Swayka v. Menard, Inc., the court denied Menard, Inc.’s (“Menards’”) motion for summary judgment in a lawsuit filed by a customer who was injured while a store employee assisted him in transporting heavy merchandise to his vehicle. Although Menards framed the case as one involving a routine, open-and-obvious parking lot condition, the court focused on the employee’s affirmative conduct and, significantly, the store’s voluntary undertaking of assistance.

The Incident

Plaintiff Robert Swayka purchased approximately 11 to 14 slatwall panels—each weighing more than 50 pounds—from a Menards store. Two employees placed the panels lengthwise on a flatbed-style cart, with the panels overhanging the cart’s surface. After completing the purchase, Swayka was directed to a carry-out employee for assistance with transporting the panels to his vehicle.

Swayka pushed the cart while the employee walked alongside it with a hand on the panels in an apparent effort to steady them. As they moved downhill in the parking lot, the cart struck a crack in the pavement, came to an abrupt stop, and the panels slid forward, causing the cart to lurch backward into Swayka and fall on top of him.

Ordinary Negligence v. Premises Liability: Insurance Implications

Menards argued that the case was fundamentally a premises liability claim arising from a “routine surface condition” in the parking lot. The court, however, found that Swayka had properly alleged ordinary negligence, not premises liability, because the alleged cause of the injury was the conduct of Menards’ employee in the handling and movement of the cart, not merely the condition of the premises itself.

This distinction was critical. By proceeding under ordinary negligence, plaintiff was not required to establish the additional elements that a premises liability theory would require (such as proof that the property condition posed an unreasonable risk of harm).

The Voluntary Undertaking Doctrine: Carrier-Relevant Risk

Most notable for risk management purposes was the court’s focus on Menards’ voluntary undertaking to assist Swayka with transporting the materials.

Illinois has adopted Section 323 of the Restatement (Second) of Torts, which provides:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking…”

Under this doctrine, a party may be held liable not because it was obligated to act, but because it chose to act and assumed a duty to perform that action with reasonable care.

Here, the evidence showed that Menards voluntarily offered carryout assistance to Swayka. The Court emphasized that Menards’ employees undertook the tasks of loading the merchandise onto the cart and helping Swayka transport it to his vehicle. These facts could allow a reasonable jury to conclude that Menards affirmatively undertook responsibility for the safe transport of the merchandise across its parking lot and therefore owed Swayka a duty of care in performing that assistance.

Significantly, the court noted that none of Menards’ arguments regarding the open and obvious nature of the crack or lack of notice defeated the voluntary undertaking theory. Instead, once the store elected to assist, the relevant inquiry became whether that assistance was performed reasonably under the circumstances.

Why This Matters for Retailers and Insurance Carriers

This decision illustrates a key lesson for retail establishments and their insurers: a store’s exposure does not arise only from the passive conditions of its premises but also from the affirmative conduct of its employees.

Even when a condition might be deemed minor, open and obvious, or outside the scope of premises liability, liability may still attach if the store, through its employee, assumes a role in directing, assisting, or controlling the customer’s movements or property. The act of helping, even as a courtesy, can fundamentally change the legal analysis.

Practical Takeaways for Retailers and Insurance Carriers to Consider

For retailers and property owners, this case serves as a reminder to:

• Ensure that carry-out and loading assistance policies are clearly defined and consistently followed.
• Train employees on appropriate procedures when transporting heavy or oversized merchandise.
• Evaluate whether certain types of assistance should require additional safety measures or equipment.
• Recognize that “helpfulness” may create legal responsibility, especially when employees exercise physical control over equipment or merchandise.