The Law

Beware of Kiosks by Ron Davis Can the allure of a shopping center kiosk create such a distraction that passers-by disregard personal safety measures? A customer at a shopping center in suburban Fort Worth, TX, argued that, yes, a kiosk can and did distract her to the point that she suffered an injury. The shopping center is North East Mall, and the customer claimed that during a visit there and as she walked through the center’s common area, the merchandise displayed at a kiosk attracted her full attention. She added that while fixated on that merchandise, she failed to notice the nearby stairway that leads to the shopping center fountain. She subsequently tumbled down that stairway, suffering debilitating injuries. The woman sued the owners of North East Mall, claiming that the proximity of the kiosk to the stairway created a dangerous condition. And in her attempt to prove her claim, she called on an “expert” to back her argument. That expert, she said, is a visual merchandiser. And he offered that kiosks at shopping centers are specifically designed to attract customers and divert their attention toward the products displayed. In fact, he said, kiosks can in some cases “completely consume” a shopper and should therefore not be placed in close proximity to any potential hazards. In this case, he argued, North East Mall management should have known that the placement of the kiosk at issue created an “unreasonable risk of harm to shoppers.” But based on the qualifications of the visual merchandiser a Texas court rejected his testimony. Explained the judge, “He conceded that he had never taken any courses regarding proper placement of kiosks within retail shopping environments. He also conceded that he had never obtained training of any kind regarding safety issues pertaining to the placement of merchandising structures in retail spaces. He even admitted that, at least in the last five years, he had never evaluated how far kiosks need to be from other potentially hazardous structures. “To this same end,” the judge continued, “he averred that he had never done studies or surveys pertaining to applicable standards regarding the placement of kiosks in relation to potentially hazardous conditions. And although he said he was aware of studies pertaining to safe kiosk placement, he admitted that he had not reviewed such studies prior to forming his opinion as to whether the kiosk at issue in this case was placed a proper distance from the stairs.” Concluded the judge, “We hold that the…determination to exclude such testimony is supported by the law as applied to the fact in the record.” A jury agreed that the facts presented did not warrant any assignment of blame on the part of the shopping center’s owners or managers for the injuries the woman suffered. (2010 WL 2720005 [Tex.App.-Fort Worth]) Decision: July 2010 Published: September 2010