Retail Expert Witness Corp

I’ve been in retail long enough to remember when Black Friday was one day. Now it starts somewhere around Halloween and doesn’t really end until the returns line clears in January. This year the big day falls on November 27, with Cyber Monday right behind it on November 30, and for retailers it’s still the most demanding stretch on the calendar.

It’s also when a lot of the cases on my desk begin. Crowds, temporary displays, brand-new employees and wet entrances all show up at the same time. When someone gets hurt, the question for the attorneys on both sides is the same: did the store do what a reasonable retailer should do to prepare for a crowd it knew was coming?

Here’s how I approach that question, and what I’d want you to have in hand before you call me.

Why Black Friday Is Different

Black Friday isn’t a surprise. Retailers plan for it months ahead with holiday floor sets, extra staffing, promotional displays and, for the bigger chains, written crowd management plans. That planning matters in litigation because it tells us what the store expected and what it promised itself it would do.

The shopping pattern has also changed. Online ordering hasn’t emptied the stores; it has moved some of the crowd to buy-online-pickup-in-store counters, curbside lanes and parking lot pickup spots. Those areas are newer, they’re often set up quickly, and they deserve the same attention as the sales floor.

The Hazards I See Most Often

1. Entrances and vestibules

Late November weather means rain, sleet or snow tracked in by hundreds of shoes an hour. I look at whether entrance mats were in place and large enough for the traffic, whether they were replaced when saturated, and how often the entry was checked. A single mat sized for a quiet Tuesday is not the same as a mat plan for Black Friday morning.

2. Aisles that got narrower overnight

Holiday sets bring pallets, wing displays, dump bins and vendor fixtures into the main aisles. A pallet in the power aisle is a little like a relative at Thanksgiving: fine for a few minutes, a problem if it’s still there at 3 p.m. I compare what was actually on the floor to the store’s own holiday set plans and planograms, and to any vendor installation instructions for temporary displays.

3. Doorbuster crowds

When a store advertises a limited quantity of a hot item, it is inviting a rush. After a fatal crowd incident at a New York store in 2008, OSHA published crowd management guidance for retailers covering planning, staffing, barricades and entry procedures. Whether a store followed its own plan, and whether that plan fit the crowd it advertised for, is often central to these cases.

4. Stocking during shopping hours

Shelves empty fast, so stores restock while customers are shopping. That brings flatbed carts, boxes, banding straps, shrink wrap and cardboard into the aisles. I look at the store’s procedures for restocking during open hours and whether they were followed.

5. Pickup areas and parking lots

Pickup counters create lines in places that weren’t designed for lines. Curbside lanes put pedestrians and cars in the same space, often in the early-morning dark. Lighting, lane markings, wheel stops, curb conditions and ice treatment all come into play.

6. Seasonal employees

Many of the people working on Black Friday were hired a few weeks earlier. That isn’t a problem in itself. The question is whether they were trained on the store’s safety procedures, such as spill response and inspection rounds, before they were put on the floor during the busiest day of the year.

The Records That Tell the Story

Every retailer has its own policies, so I always start with the store’s own rules and then look at whether they were reasonable and whether they were followed. These are the documents I find most useful in a holiday case:

• Floor inspection and sweep logs for the day of the incident
• Holiday staffing schedules and any crowd management or event plan
• Holiday floor set plans, planograms and vendor display instructions
• Training records for seasonal employees
• Surveillance video, ideally covering a window before and after the incident
• The incident report, witness statements and photographs
• Weather records for the date and time, especially for entrance and parking lot cases
• Snow and ice service contracts and logs, if an outside contractor was involved

One practical point: surveillance systems often record over older footage, and on a day with this much activity, that window can be short. If you think you may have a Black Friday case, a preservation letter sent early can make the difference between having the video and wishing you did.

The Same Records Can Help Either Side

I want to be clear about this, because it’s how I approach every case. The records that show a store fell short can just as easily show a store that planned well, staffed up, inspected regularly and responded quickly. My job is to look at the evidence as it is and explain it in a way a judge or jury can follow. Sometimes that helps the person who was hurt, and sometimes it shows the store did what it should have done.

Common Questions From Attorneys

Is a store responsible for injuries caused by a crowd?

That’s a legal question that depends on your jurisdiction and the facts. What I can address is the retail side: whether the crowd was foreseeable, what the store planned for, and whether its staffing, layout and entry procedures matched what it advertised.

Can you evaluate a case if the holiday displays are long gone?

Often, yes. Holiday sets are temporary by design, so most of my holiday cases rely on video, photographs, deposition testimony and the store’s own plans and logs rather than a visit to the store as it looks today.

Does Cyber Monday carry the same risks?

The sales floor is usually calmer, but pickup counters, curbside lanes and stockrooms get busier. Those are the areas I’d look at first in a Cyber Monday week incident.

Let’s Talk About Your Case

Holiday cases move quickly, and so do we. If you’re handling an incident from a holiday sale or event, my team and I are happy to talk through the facts, tell you what records will matter, and give you a straight answer about whether I can help. You can learn more about our areas of expertise and see where we’ve worked.

Jerry Birnbach, F.I.S.P., Assoc. AIA, is the founder of Retail Expert Witness Corp. and has more than 40 years of experience in retail store design, display and customer safety.

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