Jury rules father — not Mall of America or Sea Life — negligent for child’s fall over escalator

A Hennepin County civil jury determined Thursday that the Mall of America and Sea Life Aquarium are not liable for serious injuries to a 6-year-old boy who fell 30 feet over an escalator handrail.

After an eight-day trial and two days of deliberation, the jury absolved the mall and aquarium of any responsibility or negligence in connection with the child’s injury, for which lawyers were seeking $14 million in damages. In ruling that the boy’s father was negligent and failed to use reasonable care, the jury awarded the child $870,000 but no one will be responsible for paying it since his father was not a party to the lawsuit.

The boy survived but was knocked unconscious by the fall in 2019. He suffered a traumatic brain injury, a large bruise to his head, a fractured pelvis, fractured elbow and injuries to his liver and abdomen. His mental and physical health have suffered ever since.

The escalator was operated by Sea Life, which leases the space, but the common area just inches to the left of that escalator where the boy was standing was the mall’s responsibility.

Jurors were asked to untangle the mall and the aquarium from one another to determine if either was more or less responsible for the fall. They also had to consider what blame should be placed on the father — who had stepped a few feet away to take a phone call when the boy fell.

“We’re extremely disappointed for our 12-year-old client,” said Thomas Conlin, the child’s lead attorney. “Despite the verdict, we hope that the Mall of America and Sea Life will take the steps necessary to improve the safety of all children at the mall.”

Attorney David Camarotto, who represented Sea Life, said the company always put safety first and “the premises have always been to code and safe for enjoyment and they continue to be.”

The Mall of America said in a statement it was grateful to the jury and “look forward to moving past this legal matter.”

Three jurors, who spoke on the condition of anonymity, said the fact that the mall and Sea Life kept the escalator and common area inspected and up to all legal safety codes meant they found no reason to assign negligence to either party for the fall.

Eric Smith spent the day at the Mall of America with his two sons that Monday in February 2019. They had just moved from Pennsylvania to Minnesota.

After visiting the Sea Life Aquarium, located in a sublevel of the mall, they rode the escalators up to the first floor. Eric took a phone call about an apartment he was looking at and stepped a short distance away from his children.

One of his boys stood near the down escalator and began playing with the moving handrail, pulling at it a handful of times, while trying to look at the stingrays below. It had been installed in 1992 when the mall opened and was moving at 100 feet per minute. He grabbed the handrail, was pulled off the floor, tilted over the side and plummeted to the sublevel below.

“Not in my worst fears did I think that could happen,” Smith testified at trial.

Camarotto pressed him on how he was monitoring his kids.

He asked Smith if he walked away from his children, if he thought they were following him, if he was distracted. He asked him if his son was misusing the escalator when he was pulled up and over.

Smith admitted to all of that.

“It’s an accident,” Smith said.

“You just made a mistake, right?” Camarotto said.

Smith admitted he made a mistake. But he countered that question and, in doing so, presented the essential issue for the jury to consider when it came to liability on the part of the mall and Sea Life.

“I’m a father with two kids,” Smith said. “This is my first time at the Mall of America. You all deal with thousands of kids every day and you can’t see it happening? What’s the difference? I would like to know.”

Throughout the trial overseen by Judge Edward Wahl, the mall and Sea Life said they have certain responsibilities for safety, but there are limits.

Rich Hoge, vice president of operations for the mall, spoke to the flow of commerce and humanity at the largest mall in North America: $2 billion in economic activity and 40 million visitors annually plus 10,000 employees.

He said the mall refers to its security apparatus as layers of Swiss cheese, and that it was impossible for a mall of this size to not have security gaps. But each security tactic the mall takes — like having Bloomington Police Department officers stationed there, police dogs that can sniff out guns, and 150 security staff members who have distinct protocols for what to do if a child is lost — is meant to collectively provide a level of security that makes everyone there feel safe.

“There’s a lot of different things we can do and not one of those things is going to prevent everything,” Hoge said. “At the end of the day you’re going to have a safe facility but you’re not going to prevent everything.”

The lawyers representing the child said not only could the Mall of America have prevented the accident, but they were explicitly warned of the risk.

There are about 60 escalators inside the mall. They are inspected annually by the state and escalator technicians are on site five days per week. In 2014 the mall’s escalator operator was KONE Inc.

In January, KONE sent a letter explaining there was a “potential safety situation.” While the escalator equipment was up to all proper codes, there were “external factors.”

“For example, with certain units, particularly those in atrium environments, there is a potential for end user injuries from passengers falling over the side of the escalator balustrade or autowalk platform to the level below.”

The letter went on to “strongly recommend installing fall protection barriers to minimize the risk.”

While the letter was signed for by a staff member, the Mall of America claimed it never reached its intended target, John Beach, who is now the senior housekeeping manager and has been with the mall for nearly 28 years.

Defense attorneys for Sea Life presented expert testimony from Patrick McPartland, an electrical engineer and vertical transportation consultant from New York, who said he had never heard of this kind of accident in 42 years of escalator maintenance and there was no reason for the mall to implement a security measure for what he viewed as an unforeseeable event.

“If something happens once over 25 over 30 years, we’re not going to change the [safety] codes,” McPartland said.

Lawyers for both sides were dogged and intensive in their preparation and execution of a case that took years to move through the court. The Mall of America was represented by Larkin Hoffman; Sea Life by Bradford, Andresen, Norrie & Camarotto. Ciresi Conlin represented the child.

At closing arguments, Conlin said all the Mall of America had to do was affix a vertical plexiglass barrier to the common area next to the escalator to prevent this accident and that, six years later, no extra security measure has been taken by the mall or Sea Life.

Heidi Jo Bassett, representing the mall, said it had taken precautions for foreseeable risks with escalators.

“Nobody can predict every possibility,” Bassett said, pulling out large cardboard replicas of Swiss cheese. “So the holes that remain may be small but they remain.”

She said only Smith could have filled this hole.

“That does not make [him] a bad father,” Bassett said. The mall “cannot know the idiosyncrasies of everybody who steps on the property,” Bassett added.

Wednesday afternoon, as the jury prepared to deliberate, a slow but steady flow of Mall of America visitors used the escalators to visit Sea Life. There was an impermanent vertical sign placed where the boy had fallen, directing patrons in and out of the aquarium.

At one point a little boy, no more than four, waddled toward the edge of the up escalator. He stood staring at the moving stairs. There was no one within 15 feet of him for five seconds or so.

His dad, finishing a purchase nearby, hollered, “Teddy!” ran up, scooped him into his arms and headed for Nickelodeon Universe.