Mall's Kiosk Placement Did Not Cause Slip-and-Fall

Facts: A customer sued a shopping mall after she slipped and fell down concrete steps leading to a fountain, because she was looking at merchandise on a kiosk. The customer claimed that the mall's placement of the kiosk in relation to the stairs created a dangerous condition.

During the trial, the customer presented evidence concerning the appropriate placement of kiosks in relation to potential hazards, which was given by an expert witness she had hired. The mall asked the court to exclude the expert witness's testimony because, according to the mall, he was not qualified to render opinions regarding the safe placement of kiosks in retail establishments.

The court granted the mall's request and ruled in its favor. The customer appealed.

Decision: The appeals court upheld the trial court's decision.

Reasoning: The customer's expert witness, who was a visual merchandising expert, testified that kiosks: (1) are specifically designed to attract customers and divert their attention toward the products displayed; (2) are designed to “completely consume” a shopper; and (3) should, therefore, not be placed in close proximity to any potential hazards. According to the expert witness, the mall should have known that the placement of the kiosk created an unreasonable risk of harm to shoppers by being in close proximity to the steps the customer had fallen down.

The appeals court stated that, to establish an expert witness's qualifications, the party using the witness must show that the expert has “knowledge, skill, experience, training, or education” which would qualify him to give an opinion regarding the specific issue in the case. Here, the expert witness conceded that he had never: taken any courses regarding the proper placement of kiosks within retail shopping environments; obtained training of any kind regarding safety issues pertaining to the placement of merchandising structures in retail spaces; or conducted studies or surveys pertaining to applicable standards regarding the placement of kiosks in relation to potentially hazardous conditions.

Moreover, although the expert witness said that he was aware of studies pertaining to safe kiosk placement, he admitted that he had not reviewed any of those studies prior to forming his opinion as to whether the kiosk at issue in this case was placed a proper distance from the stairs. The appeals court determined that, because the expert witness was not qualified, the trial court had properly excluded his testimony and ruled in favor of the mall.

• Downer v. Simon Property Group Texas, L.P. D/B/A North East Mall, July 2010