The family of Jdimytai Damour, the Wal-Mart worker that was stampeded to death last week out on Long Island, has brought suit in New York, in Bronx County (where he presumably lives).
The stampede apparently occurred when a group of shoppers waiting in their cars rushed the doors when they opened, clashing with a group that was waiting on a “no-cutting” line. According to this Newsday account, an estimated 2,000 people were there.
A critical issue in the ability to bring suit was a determination of whether he was a Wal-Mart employee or not. Since he was a seasonal worker, I doubted he was employed by the retailer. If he was, then New York’s Worker’s Compensation laws would have prevented suit, as WC would provide the exclusive remedy. According to this Reuters account, however, the victim was an independent contractor, and not an employee.
I blasted Wal-Mart for the stampede as soon as the news hit for failing to have adequate security. Nassau County police made the same claim. Wal-Mart, however, claims that they had security in place.
Plaintiff’s counsel, Jordan Hecht, named Wal-Mart and the mall’s owner (Vornado Realty Trust), manager and security firm as defendants in the suit. According to Hecht in a statement he released:
“When they heard of how he was eventually killed, that he died of asphyxiation, they were visibly shaken. They are angry because this was preventable, and have therefore exercised their right to seek justice in the court”
A substitution of parties will no doubt take place in the future after a proper administrator or executor is appointed for his estate.
Ron Miller at the Maryland Injury Lawyer Blog, it should be noted, is a bit critical of the rush to suit, writing:
Do the personal injury lawyers who are trying the case lose credibility with the jury when they know the lawyer filed a lawsuit without knowing all of the facts that are the foundation for their case?
While I would ordinarily agree with Miller about the rush to suit, in this particular case I think there may be justification for doing it as long as the main parties can be identified, as it may bring witnesses to the attention of the lawyers who might not be too keen, for their own personal reasons, of approaching the police. Sometimes, a rush to suit may bring an appropriate dividend for the client.
Addendum: One other potential reason for quickly filing suit; a very angry family may have demanded it. This could be due to a hope that the publicity would hurt Wal-Mart, to see that it would never happen again, and/or to make sure the police did everything in their power to investigate. This is, of course, speculation on my part. But grief-stricken family members may be doing whatever they feel they can under truly horrible circumstances.
- Walter Olson at Overlawyered thinks the race to the courthouse door was for publicity
- TortsProf Bill Childs thinks it could be to get quick discovery before memories fade
- Tony Rosasco thinks that New York Workers’ Compensation Law Will Prevent Lawyer from Suing Wal-Mart Directly for Negligence; He also thinks, as do I, that Wal-Mart could face a criminal investigation due to the death.
Links to this post:
“5 minute after” suits and the wal-mart trampling
ron miller at maryland personal injury thinks the filing of suits only days after an event like the long island wal-mart trampling, at a point when key facts relevant to the nature and extent of liability have yet to be brought out, …posted by Walter Olson @ December 04, 2008 10:52 AM
Thanks for the link, Eric.
Did they call Wal-Mart about settling the case to see if they would overvalue it? Did the they call the relevant witnesses to see if they would give statements without being deposed? I don’t think this case is factually distinguishable from many complex medical malpractice cases where there was multiple witnesses and I don’t seee a lot of good lawyers rushing to file suit.
Again, we can guess at the motives and I’m not prejudging because they could have a good faith reason for doing it. Obviously, you believe that it might be a good idea proves that. But there are so few big ticket but small media interest cases that get filed within three business days.
# posted by Anonymous Ron Miller : December 04, 2008 4:49 PM
I put the Addendum in in response to your comment.
# posted by Blogger Eric Turkewitz : December 04, 2008 5:04 PM
Adequate security manning the place would have prevented the stampede. An estimate of 2,000 people is a lot and having just several security guards would not be adequate.
# posted by Anonymous Postergal : December 04, 2008 7:59 PM
Thanks. That possibility was actually in my original post too. That’s why I say I don’t prejudge the motives.
# posted by Anonymous Ron Miller : December 04, 2008 8:55 PM