Jerry Birnbach & Associates Store Planning Consultants

60 Shades of Gray Conditions loom in every Retail establishment

I am often called upon to provide an opinion as to the cause and effect of conditions at a retailer, which were believed to have contributed to a significant liability case. As a Store Designer and Display Designer for over thirty-five years there is a lot more to a retail accident than meets the average eye.

Often there are several contributing factors, which led to an accident in a store some of which are obvious. Many times it is the less obvious factors that are the main culprits and remain undetected until the Retail Expert reviews the case.

1- Lighting- Was the area in which the accident occurred properly lit. That includes allowing for the eye to adjust when entering into an artificial lighted area from a bright sun shining parking lot
2- Floor condition, level, slope, texture of surface, maintenance of surface, coefficient of friction factors.
3- Aisle location and measurement.
4- Color and contrast of circulation area verses display area
5- Definition of aisle boundaries
6- Display system type
7- Display attachment details
8- Positive display connections verses removable
9- Ergonomic design of display
10- Method of product secured and displayed
11- Ease to review product
12- Method to replace product to insure proper placement
13- Angles imposed to review product and removal
14- Safety of display construction
15- Template for Store staff to refill product presentation
16- Plan-o-gram instructions for product placement
17- Shelf capacity by volume and support
18- Customer interaction with product visually and review process
19- Aisle size and direction
20- Permanent display expectation level,
21- Promotional display expectation level
22- Signage addressing policy, instructions, warnings, and information
23- Rules for parking lot interaction including traveling, shopping cart, traffic and alerts
24- Specific events or conditions leading up to the event
25- Additional party interaction that impacted the accident
26- Determining the liability as to retailer, customer, or accident related items such as displays, shopping carts, product sold.
27- Reaction by store at time of accident to document the condition, event and injury status.
28- Following company policy in documenting accident, retaining evidence involved in accident and proper video or still photos of the event before, during and after.
29- Requirements for customer to review product and experience product performance.
30- Review immediate area surrounding the accident to see if conditions created elsewhere had an impact on the accident scene
31- Distance of reach to product
32- Distance of angle to product
33- Ample space of product when removed to review and handle item
34- Product on display dynamics such as weight, center of gravity, size and surface texture
35- Stacking aspect to product if levels of product were placed on display off one surface
35- Effect of display, materials, other elements when left in position of extended periods of time.
36. Method of replacing defective display or materials
37- Was the initial manufacturers instructions followed when installing the displays
38- Did the retailer follow the manufactures recommended maintenance schedule
39- Store staff’s conformance to company policy relating to the factors surrounding the accident type,

40 through 60 will be specific to the case itself and require years of experience working with retailers, designing for retailers and vendors to unearth. One thing
is for certain, The whole is equal to the sum of the parts and there are at least 60 parts of gray to every case.

Jerry Birnbach F.I.S.P., Assoc A.I.A.
www.retail-expert-witness.com
jerry@jerrybirnbach.com

Retail is simply how to get the most sales per square foot of selling space. In the retailers attempt to improve their bottom line they often make decisions that put their customers and employees in harm way.

Humans require certain ranges and accessibility to shop safely in a store. Although local building codes regulate aisle widths and fire egress within the store, the retailer is always trying to push the envelope of safety.

For every action there is an opposite reaction. Reduce the aisle space to get more products out increases the likelihood of a customer to walk into a display or brush past product that sets it in motion. Stack more product vertically and watch the Leaning Tower of Pisa to appear. The laws of Physics cannot be pushed beyond their limits before a safe condition turns into an accident.

So why do retailers often cross the line of safety? More often than not the store staff are not aware of what they are doing could lead to an unsafe condition. Store managers are notorious in finding space and loading it up with product regardless of the possibility it comes down on a customer. Action is a result of motivation and the Store Managers bonus and performance is based on total yearly sales and not by the absence of accident reports. So, do I make an additional $50,000 in sales by risking some safety issues or take a chance on a small claim costing $5000.00. Sounds like a net profit of $45000.00. What the manager miscalculated was the extent of damage caused by an accident and many juries will award $500,000.

As I tour stores for Attorneys to review liability claims it is baffling why common sense did not kick in to alert the store they were planting a mine field that could only result in a catastrophe. Stacking furniture on top of each other with 4 legs the only support vertically and no restriction horizontally resulted a chest coming down on a customer. Allowing a vendor display on the end of a display without a base deck of 4” allowed the shopping cart to enter into a space, which caused it to bind. When the customer pulled back on the cart it released itself causing a broken hip.
These two examples show that it is not a good idea to get creative with displaying product as the unpredictable end results can turn out poorly for all concerned.

My recommendation to attorneys when addressing a liability case in a retail environment is to take out the magnifying glass and determine what were the real conditions at the time of the accident event. I found a standard display item, made in China, the cause of a major facial deformity case due to not manufactured per the specification of the retailer. When a retailer weekly circular printed material fell on the floor and was the cause of a customer slipping on it who was at fault.

Was it the floor which was not a non-slip surface, the circular material wire stand which had no edges around the stack of printed material thus allowing the wind at the door to blow the circular onto the floor, or was it the customer who cut across the entrance floor and had ten feet to pass the wire rack without tripping on the paper directly under the wire display?

Regardless of where the fault was established the fact remains that there are standards, common sense and proven engineering practices that show every attempt was made to avoid an accident. When you leave the door open with any diversion from standard practice you expose yourself to a law suit eventually.

Here is the reality, if you are a big box retailer with 1000 locations, 5000 customers a day per store there is a potential of five million accidents a day. That sounds like safety first and dollars second to reach a profitable scale of balance for a retailer.

In the world of retail there is a specialty known as Store Planning. This niche design discipline concentrates on generating the most dollars per square foot through innovative store design and display design concepts.

 All too oten Interior Designers and Architects take on the challenge of designing a display or store without paying attention to the dynamics that make up a successful creation. Safety first was taught to me in my Architectural Education and I incorporated that mantra into every display and store design that I did over a thirty-year period of practice.

 There is so much more to a retail design besides color and making it pretty. Capacity, customer interaction, employee interaction, constant usage and strength are all considerations necessary to address before the manufacturing or construction starts.

 In my years of designing of product vendors and retailers I have generated 3000 concepts all of which were manufactured and distributed to 2000 stores across the country. With 30 plus million dollars of produced displays and stores I have seen it all when it comes to liability, how instructions are misinterpreted and accidents can be avoided.

 My concern today is that safety in design has made way to bottom line decisions, which has opened up a Pandora’s box of liability issues. No longer is the strongest material, positive connection, clear accessibility, human dynamic needs or safe guards becoming the number one objective in retail design. An attitude that whatever concerns the designer or vendor or retailer might have for a potential hazard is no longer dictating the final product.

 What is unfortunate is that through sound design and paying attention to detail there is no need to sacrifice safety over price. Both can easily be achieved with proper value engineering, competitive bidding, and partnerships of all interested parties. There is more than one way to skin a cat, and it is beholden that designers hold their ground when evaluation the risks created in marginal design details.

 My success has been based on an understanding that you leave the ego at the door when it comes to following other expert opinions. Whether it is a manufacturer, contractor, retailer, vendor or consumer their opinions count. All too often designers get caught up is their art and forget that form follows function. Safety before beauty, Safety before profit. One legal action will wipe out your bottom line quicker than you can say “now on sale”.

Is Retailing relying on technology to reinvent the buying experience? You bet it is and any firm consulting to the retail industry needs to be on the edge of technology as well. As an example our Retail Design Firm has upgraded our technology to allow us to design, manage and project manage retail projects nationally without stepping on an airplane. It is all on the screen and all communication is in real time. With Face Time, IChat, or Skype we communicate with our clients on a daily schedule live and in person. The technology allows us to reduce our fee structure, out of pocket expenses to our clients and manage immediately issues and concerns with a click of a mouse.

All designing of retail space, displays, showrooms have incorporated the use of portable device capabilities for consumers in mind. Our role in design and consulting is to anticipate the radical change in the retail playing field as a result of technology. We have been ahead of the curve which has enabled us to providing design services for over 25 years. Our clients projects need to be technology worthy in order to meet today’s consumer needs.