Judge Rules Against Wal-Mart in Black Friday Case
Last week, Covette Rooney, chief administrative law judge
of the Occupational Safety and Health Review Commission, upheld a $7,000 fine
handed down against Wal-Mart Stores in connection with a tragic Black Friday
accident in 2008 that saw one of the retailer’s employees trampled to death
by thousands of shoppers rushing into the store as it opened.
Judge Rooney concluded
that the evidence in the case showed the employee who died, Jdimytai Damour,
was exposed to a physical hazard that Wal-Mart was aware of from previous Black
Friday events and that the retailer failed to take steps that could have saved
his life.
Greg Rossiter, a spokesperson for Wal-Mart, expressed disappointment
in the the judge’s ruling. He told The New Yorker, "In all likelihood,
we will appeal through a petition for discretionary review to the full Occupational
Safety and Health Review Commission." The company has 20 days from the
date of the decision to appeal to the commission.
Mr. Rossiter said Wal-Mart
appreciated Judge Rooney’s "endorsement of
our comprehensive and nationwide crowd control plans," but disagreed "that
Wal-Mart and the entire retail industry should have known of and implemented
those plans in 2008 and earlier."
Dr. David Michaels, assistant secretary
of Labor for Occupational Safety and Health (OSHA), said in a statement, "Even
in the absence of a specific rule or standard, employers are still legally
responsible for providing a place of employment free of recognized hazards
that are likely to cause serious injury or death. If not properly managed by
retailers, a large crowd poses a significant threat to the lives of workers
and customers."
Wal-Mart has spent more than $2 million in an attempt to
overturn the fine. The chain along with others in the retail business are concerned
that regulators will increasingly seek to impose guidelines on the way they
manage their promotions. For example, OSHA guidelines issued last year would
make the particular "first-come, first-serve" methods used by retailers in
holiday promotions more difficult. Guidelines state that retailers should
consider using an internet lottery for hot items, instead, or issue wristbands
or the like for those who arrive first at the store.
- US Department of Labor’s OSHA applauds decision upholding citation against
Wal-Mart Stores Inc. in crowd management fatality case – Occupational Safety
and Health Administration - Crowd Management Safety Guidelines for Retailers –Â Occupational Safety
and Health Administration - Judge Upholds $7,000 Fine in Trampling at Wal-Mart – The New York Times
- Wal-Mart
fine in holiday sale death upheld: judge – Reuters - The Wal-Mart ‘Blitz Day’ Verdict – The New Yorker
- ALJ Upholds Penalty for Wal-Mart Trampling Case – Occupational Health & Safety
Discussion Questions
Discussion Questions: Should Wal-Mart and other retailers been aware prior to Black Friday 2008 of the dangers faced by employees and had “comprehensive” crowd control plans in place? Should retailers resist government imposition of regulation on the way they manage promotions in situations when crowd safety are involved?
When public safety is at issue, it’s the responsibility of private enterprise to ensure good execution. Walmart or any other big box retailer would clearly be negligent if there were other hazards on its property, such as electrical problems or faulty equipment. And clearly the “Black Friday” phenomenon at Walmart and elsewhere didn’t suddenly kick into high gear in 2008…this was literally an accident waiting to happen that required better pre-planning, not hand-wringing in hindsight.
The government should really stay out of this and let the retailers handle promotions in a way they see fit. No retailer wants deaths to occur. If wristbands and internet lotteries are the way to go, let the decision be up to the retailers and not the government.
Walmart and other retailers, when putting on an aggressive promotion, must be mindful of the potential problems that could occur. It costs more to defend a fine for inadequate crowd control than to provide it.
As to adhering to government regulations, applying common sense frequently overrides what comes out of legislatures.
I’m sort of befuddled at Walmart spending more than $2 million to beat back a seven thousand dollar fine. I suppose the company is concerned about precedent.
Ironically, my father’s retail store was located in the same town as the Walmart in question (Valley Stream, LI). I have no idea why anyone would be surprised that the crowd went out of control. It’s that kind of place. And the ads for Black Friday are designed to whip people into a frenzy.
This is a tricky discussion. While I agree with Richard that the retailer is ultimately responsible for the safety of the associates, this particular sad event is an anomaly and speaks more to the nature of the crowd than to Walmart’s efforts to keep their associates safe. Walmart responded with a plan and, I expect, a sound one. Having a group of bureaucrats devise a plan on how to run a retail business is ridiculous. After Katrina, these same geniuses dithered, while retailers like Walmart and Target brought material and substantial aid to bear quickly and efficiently. Programs like associate safety are best left to people that have the skills and experience to deal with them.
I agree with Pauls’s comments. It is strange that Walmart would spend $2 million to fight a $7 thousand dollar fine. I am also befuddled that the fine for a loss of life was only $7 thousand dollars. This is a strange ruling.
I also don’t understand why Walmart and all other retailers can not see the responsibility they incur with the Black Friday ads and promotions. They create chaos and wonder why they are fined? It is like them saying “Who me, what did I do?”
Walmart is sued dozens of times a day. Most are settled out of court. However, when their legal counsel determines that a precedent could provide the ability for a governmental entity, like OSHA, to shackle them with ongoing fines and regulations, then they will fight it regardless of the cost. Card check and the fair-pay lawsuits are other recent examples.
Two million dollars is money well spent provided they can keep OSHA from dictating how they execute their promotions. Most of us understand that once a precedent is established, the government will get very involved in your business. It provides a green light that Walmart (or Target) would rather not see.
That being said, Black Friday events need to be managed locally and not from the home office. My guess is that the store managers in Long Island were probably very concerned about the crowd wreaking havoc on the store prior to Friday. Though, I also believe that they never imagined someone could die. I am also willing to guess that the store manager in an upscale Atlanta suburb had no such worries for Black Friday.
Retailers deliberately do whatever they can to stimulate consumer demand and create excitement around limited offers. No problem so far, but one interpretation might be that they also incite crowds in this instance.
As others have said, this was an accident waiting to happen and not putting safety measures in place was just downright dumb to put it mildly. Obviously no business likes being told by outsiders, especially government, how to run their business but sometimes intervention is necessary.
We talk a great deal on this site about personal responsibility as well as corporate responsibility. This is an instance where employees cannot sufficiently take the former and employers must take the latter. It’s a pity that they need to have this spelled out for them and irresponsible (I think) of Walmart to be spending so much to avoid it. They should just pay up, apologise and then shut up. (And count themselves lucky the fine is so extraordinarily low for being at least in part the cause of someone’s death.)
Walmart’s giant PR machine is in overdrive now too. They’re spinning how well they’ve handled the crisis in Japan by within hours of the earthquake and ensuing tsunami managers were in the parking lot giving away bottles of water and that most of the stores hit were back up and running already.
Frankly it is the responsibility of the store owners to manage what happens on their property. Even as homeowners we have to carry insurance that protects us from the stray event.
And these Black Friday events are known for their huge crowds. Standing back after something tragic has happened and saying I, well, we didn’t, it wasn’t, who could have….is bull. This is all a part of taking responsibility for your actions. Every child is taught that, or that is the theory anyway, from birth. When you get to this stage of life with all of its complexities and promotions, the stakes are even greater so the precautions should be as well.
I think these stores make hay off the fact that there is such a frenzied crowd. Not taking responsibility in managing it then is also a fault on their shoulders. I fully agree with the ruling and hope it serves a lesson to the rest of retailers out there.
I’ve seen a lot of stupid behavior on the part of retailers when it comes to managing their customers for their stores’ gain and to the detriment of their customers. If they don’t manage with some reliability then they need to be held liable for it as well as the managers in charge at that time.
As an individual without all the power and prestige of a Walmart machine behind me, if I held a garage sale on my property where I was selling the iPhone 4 for $29.99, and I didn’t have some kind of notices in the neighborhood about the potential traffic in advance of that garage sale so the neighbors could keep their kids safe from all the unruly people hitting the house at the crack of dawn to get that phone, and something happened to a child as a consequence, do you really think I wouldn’t be fined even more than $7,000.00 and possibly even jailed for it?
These too-big-to-fail companies are getting off the hook too easily because of how they can afford to fight in court. Let’s be clear about this.
Totally agree with Ed. Black Friday mayhem is nothing new to these big box giants. They create it, therefore they should be prepared for it. The loss of a life and all the court costs associated for a piddly $7000 fine. Walmart should have just given the 2 million dollars they spent on court costs to the family of the victim, owned up to their mistake and made the appropriate improvements to their crowd control. Appealing is only going to bring even more negative publicity. JMHO
If Walmart is going to invite the world to this kind of hyped event, it has to be completely ready to handle the crowds, safely and respectfully. I applaud OSHA for not caving on this one.
We all seem to be in agreement here–well, with one (predictable) exception, anyway–but if you look at the ambiguity embedded in the keywords here (“recognized hazards” and “likely to cause”) the forecast is for lots of civil litigation and regulation, but, lacking the key unanimous vote, very little criminal prosecution.
Keep in mind that this is an administrative judge of Occupational Safety and Health Review Commission, its not a “Judge.” The $2 Million spent is Walmart protecting itself from the ultimate ‘Judge’ in civil court.
And this week, we find Walmart in another fight all the way up to the Supreme Court of the United States on another matter involving equality to women.
This is a giant that is protecting itself from a much greater liability. Payment of the $7,000. puts them nearly in an admission of guilt. That being the case–the sky is the limit once it goes through the civil process. Again, Walmart will spend to defend rather then settle quietly and discreetly.
I’m not sure that anyone could be surprised by the actions.
There’s just something wrong with the entire picture about a culture that engages in the mayhem, then cries wolf when someone is dead. Sort of.
In the same way, NASCAR recently expressed concerns that their attendance may be impacted by their public emphasis on safety. After all, the crowd revels in the astonishing crashes. Yet, the drop likely has nothing to do with their own concerns about safety and expressing it publicly. The NHL thrives on gloves being dropped. Black Friday has become dependent on the mayhem and increasing the stakes every year. It’s now to the point where the name doesn’t seem to fit any longer. It likely will be Black Week before long as retailers push the edge way before Friday.
How many people would love to see #3 back on the track? How many would give their cheap flat screen back in exchange for Jdimytai Damour’s life?
Why do we allow it? Is it really the love of the game? Nevertheless, in just about 8 months, give or take, we’ll measure success by the level of mayhem and live in the risk of Jdimytai Damour death reoccurring once more. We’ll talk about something besides the giant defending itself yet one more time. After all, it’s really about the cheap TV and the love of the game, isn’t it?
Retailers have a responsibility to ensure that entrances and stores are a safe place to shop and work everyday, not just on Black Friday or any other promotional day. Maybe paying the fine is a lesson to be learned by all. Have safety procedures in place and make necessary changes as needed.
If this were truly predictable, it wouldn’t have happened. Who’d want to see an employee trampled? I’m sure Walmart’s litigation is all about avoiding precedent. If retailers don’t want to see government intervention in this sort of thing, they’d better make these events a little more sane. There are surely ways to do that. I haven’t researched this incident myself, but it seems possible Walmart may not have reasonably expected this as a possibility. But now the entire industry knows. If/when it happens again, some lawyer is going to get rich at the expense of a retailer.
Time is money. Poor planning and execution can cost a fortune in money and even more in public image. No amount of money will bring back loss due to injury. Any retail company with results like this example is completely at fault and should be mandated to pay fines from executive bonus packages.
Any retail company with results like this example is completely at fault and should be mandated to pay fines from executive bonus packages.
‘gjarnoldjr’
Here, here! or is “Hear, hear” more appropriate? Only by having legal judgments and fines applied, will the bean counters take notice and think forward and provide procedures to avoid these types of “accidents.” Personal responsibility”? “Corporate responsibility?” Transient CEOs and other corporate officers are charged with generating profits. Unless they face retribution, from the Board of Directors, shareholders, or society (expressing itself within the legal process), they don’t have the motivation to look forward. Charging the executives’ bonuses is a brilliant idea.
Remember Bhopal, India? Failure to plan for a(n inevitable) disaster is ‘S.O.P’. Corporations are not people, they do not have consciences. The corporate conscience is only relevant in this discussion in so far as it has a motivation. Avoidance of civil and criminal liability is unfortunately the only real motivator the public can count on. Trusting to the humanitarian ideals we (naively) ascribe to corporate decision makers leaves too much up to chance. Too many people at too many levels with too many angles to consider.
Ultimately, where was Walmart’s legal department when it came time to plan this event? There’s where ultimate liability should rest. Isn’t it their job to anticipate this type of problem? Just paying survivors off in a “settlement” is just a form of moral corruption. Why did Walmart spend 2 million dollars to defend a 7 thousand dollar fine? Hourly billing/corporate profit seeking….