                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-226-CV


NANSII DOW NER                                                           APPELLANT

                                            V.

SIMON PROPERTY GROUP                                                      APPELLEE
TEXAS, L.P. D/B/A NORTH
EAST MALL
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            FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                  I. INTRODUCTION

      Appellant Nansii Downer appeals from a take-nothing jury verdict in favor of

Appellee Simon Property Group Texas, L.P. d/b/a North East Mall, in her slip-and-fall

action against North East Mall. In one issue, Downer argues that the trial court

abused its discretion by not allowing her expert to testify concerning the appropriate

placement of kiosks in relation to potential hazards. W e will affirm.


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           See Tex. R. App. P. 47.4.
                                  II. B ACKGROUND

      Downer brought this action after she allegedly slipped and fell down concrete

steps leading to a fountain in North East Mall. According to Downer, she was

looking at merchandise on a kiosk when she fell and was injured. Downer alleges

that the position and placement of the kiosk in relation to the stairs created a

dangerous condition.

      Prior to trial, Downer designated Scott Goodwin as an expert witness. After

taking Goodwin’s deposition, North East Mall filed a motion to strike his testimony,

arguing that Goodwin was not qualified to render opinions regarding the safe

placement of kiosks in retail establishments. The trial court granted North East

Mall’s motion and ordered that Goodwin not be allowed to testify.

      During trial, outside the presence of the jury, Downer made an offer of proof

regarding Goodwin’s testimony. Downer offered that Goodwin would have testified

that he was a visual merchandising expert; that kiosks are specifically designed to

attract customers and divert their attention toward the products displayed; that kiosks

are designed to “completely consume” a shopper and that kiosks should therefore

not be placed in close proximity to any potential hazards; and that based on his

education, training, and experience, North East Mall should have known that the

placement of the kiosk at issue in this case created an unreasonable risk of harm to

shoppers by being in close proximity to the stairs. The trial court again ruled that




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Goodwin not be allowed to testify. After trial, the jury returned its verdict in favor of

North East Mall. This appeal followed.

                                    III. D ISCUSSION

      In her sole issue, Downer argues that the trial court erred by excluding

Goodwin’s testimony. W e disagree.

      A trial court’s rulings in admitting or excluding evidence are reviewable under

an abuse of discretion standard. In re J.P.B., 180 S.W .3d 570, 575 (Tex. 2005). An

appellate court must uphold the trial court’s evidentiary ruling if there is any

legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v.

Malone, 972 S.W .2d 35, 43 (Tex. 1998). A trial court abuses its discretion in

excluding expert testimony if the testimony is relevant to the issues in the case and

is based on a reliable foundation. State v. Cent. Expressway Sign Assocs., 302

S.W .3d 866, 870 (Tex. 2009). In order for an expert’s testimony to be based on a

reliable foundation, an expert witness must be qualified. Volkswagen of Am., Inc.

v. Ramirez, 159 S.W .3d 897, 904 (Tex. 2004). To establish a witness’s expert

qualifications, the party calling the witness must show “that the expert has

‘knowledge, skill, experience, training, or education’ regarding the specific issue

before the court which would qualify the expert to give an opinion on that particular

subject.” Roberts v. Williamson, 111 S.W .3d 113, 121 (Tex. 2003) (quoting Broders

v. Heise, 924 S.W .2d 148, 153 (Tex. 1996) (quoting Tex. R. Evid. 702)).




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      In this case, the trial court was concerned about whether Goodwin was

qualified to testify regarding the proximity of potential hazards in relationship to

kiosks. This concern is verified by Goodwin’s own deposition testimony. In his

testimony, Goodwin conceded that he had never taken any courses regarding proper

placement of kiosks within retail shopping environments. Goodwin also conceded

that he had never obtained training of any kind regarding safety issues pertaining to

the placement of merchandising structures in retail spaces. Goodwin even admitted

that, at least in the last five years before the deposition, he had never evaluated how

far kiosks need to be from other potentially hazardous structures. To this same end,

Goodwin 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 Goodwin said that 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. W e hold that the trial court’s determination to exclude

Goodwin’s testimony is supported by the law as applied to the facts in the record;

thus, the trial court did not abuse its discretion. See Malone, 972 S.W .2d at 43. W e

overrule Downer’s sole issue.




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                               IV. C ONCLUSION

     Having overruled Downer’s sole issue, we affirm the trial court’s judgment.



                                                 BILL MEIER
                                                 JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

GARDNER, J. concurs without opinion.

DELIVERED: July 8, 2010




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