(Updated 12/3/08 at bottom)
The stampede at a Long Island Wal-Mart that resulted in the death of a worker yesterday was rather predictable. Every year the news cameras are out early on Thanksgiving Friday as the stores engineer crowds to come in to their stores for “door buster” bargains.
The stampedes result from lousy crowd control for which it isn’t difficult to foresee civil liability. But while the police are out looking for the stampeders, they should also be looking at Wal-Mart’s own conduct and potential charges of criminal negligence.
(original publication, 11/29)
According to CNN, two other individuals that were injured have filed a $2M lawsuit against the Nassau County Police citing poor crowd control by the police. The police claim non-existent security by Wal-Mart.
At the outset let me note that the statements in the article about a lawsuit are likely an error in reporting, since a claim against the county must be preceded by a Notice of Claim, which Notice must be filed within 90 days. The Notice forces potential litigants to state an amount of damages, whereas the lawsuit forbids stating an amount (see New York Cleans Up Claims Act).
Nevertheless, the interesting thing about the article are the statements that Wal-Mart failed to provide security for crowd control, despite the fact that such a stampede was not only predictable, but such things are often sought after by merchants for the publicity they get for their “door buster” deals on Thanksgiving Friday.
According to the article:
Lt. Kevin Smith of the Nassau County Police Department said, “it’s our policy that we don’t comment on open litigations” and would not respond directly to [plaintiffs’ counsel] Mollins and his clients claim that officers left the scene.
He said it is “incumbent upon the store to provide security” but noted that there was no security force present when officers responded to an initial phone call after 3 a.m. Friday for an unknown disturbance at the site.
Smith said the officers noticed a lack of order with the crowd and began to organize them into a line, remaining on site for about 30 minutes until the crowd had become orderly.
Of course, it is not the duty of the Nassau County Police to provide crowd control on private property. That duty belongs to Wal-Mart who should have had that set up long ago. Whether the police subsequently assumed that duty by their actions is another matter, but clearly the duty in the first instance is with Wal-Mart knows well this is an issue on this particular shopping day.
If the part about Wal-Mart not having security is accurate, then they very clearly dropped the ball and endangered public safety by not having crowd control personnel on the scene. There is really no excuse for that.
(Hat tip to Overlawyered)
Update 12/4/08: Wal-Mart Stampede Victim’s Family Brings Suit
Links to this post:
wal-mart trampling suit
father and son fritz mesadieu and jonathan mesadieu say they were in the crowd during the now-notorious black friday crowd-crush episode at a long island wal-mart. they say they were left with neck and back pain for which they want > …posted by Walter Olson @ December 03, 2008 12:26 AM
For an employee, Wal-Mart (and its agents and employees) would presumably have strict, but limited liability under the worker’s compensation regime and an immunity for tort lawsuits by the employees. Customers injured, in contrast, probably have a strong case against Wal-Mart on a negligence theory.
The police almost certainly have no civil liability for failing to prevent a problem, because they have no legal duty to prevent crime even clearly foreseeable crime which is within their power to prevent.
This leaves the landlord under a premises liability standard, and the members of the crowd as plausible defendants. Neither are easy cases.
# posted by Blogger Andrew Oh-Willeke : December 03, 2008 4:42 PM
My understanding is that the worker was a temp, leaving it up in the air as to who employed him and who (if anyone) was paying Workers Comp for him. Clearly that would be a significant issue as to whether a suit could be brought against W-M.
As to the police, they would have had to undertake some affirmative duty to protect or provide security when they showed up a couple hours before the stampede and found an unruly crowd. I think that is pretty unlikely, but then again, I wasn’t there.
As to the landlord, it’s a pretty good guess it is W-M, but that is just a guess.
# posted by Blogger Eric Turkewitz : December 03, 2008 7:42 PM
It seems like companies that try and fail to provide security can be held to a higher dollar liability than those that simply didn’t make an attempt, and I say this only because of a few anecdotes that I’ve read, not because of some overarching study of lots of data. Can that be the case? If WM did indeed not provide security guards to protect customers from themselves, does that put them in a better spot to defend themselves against aggressive lawyers than if they had openly recognized the potential harm, made an attempt at preventing it, but failed in that attempt?
# posted by Anonymous Anonymous : December 04, 2008 11:59 AM
If W-M made an attempt at security and failed they would be in a better position than if they did nothing at all, because doing nothing would be slam dunk in my opinion. But just doing something doesn’t mean they would be immune. They can’t just hire 3 guards, for instance when expecting a couple thousand rushing customers, and claim that was adequate.
Ultimately it is a jury question as to whether W-M provided proper security, the same as if a jury had to decide any other issue of negligence.
The amount of damages has no bearing on the degree of negligence unless punitive damages are involved. The damages are for compensation, not punishment.
Of course, a pissed off jury (that’s a technical term) may view the amount of damages a bit differently through angry eyes. But that’s why we have appellate courts.
# posted by Blogger Eric Turkewitz : December 04, 2008 12:09 PM
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