Wal-Mart fights back

Actually Ed, we do know. There are several articles stating it was a temporary seasonal worker. WalMart had this person open the doors, because they were as big as a linebacker. WalMart did not provide any special clothes/vests etc, so people would know these were WalMart employees.

Businesses have an obligation for employees to have safe working conditions. If special training is needed, businesses should hire the appropriate personnel, or provide training. You of all people should know this.

Don't know about that. WalMart thought it was over the top, when they got hit with $49 million for disposing of Hazardous Waste in a reckless manner. They had to pay it.

WalMart has a history of thumbing it's nose at regulations, treating women differently, and several other employment violations. It's no secret, look it up.

I do know that. What was not known or anticipated, however, was the amount of training needed or danger the employee was in. What I do not understand is that how you can call it "reckless disregard." In hindsight, of course it is obvious more should have been done, but historically, it was not needed in thousands of store openings around the country for many years. Does Sear or Target offer special training for door openers? .

Sure, unfortunately in people's minds honest small to medium businesses get mixed together with the pirates (and it doesn't help that the pirates and folks in the government are holding hands) so the result is lots of businesses are paying for the bad behavior of others when they get tagged with phony lawsuits.

But big box places know their customers and are also notorious about being understaffed with minimally trained folks. They are clearly the ones who set the stage. Its not like this was a surprise that there could be a stampeding herd. Group behavior is a well know thing. Thats why they put panic hardware on exit doors for example.

I was going to make some snide comment about these guys were inside locked doors and the other people were outside which should have given them a clue as to those inside being WalMart employees. But then I realized we were talking WalMart.....

"George" wrote

Maybe your are correct. I'm sure you have statistics to bear this out. How many store clerks have been trampled to death in the past five or ten years?

How many employees have been trampled to death while working for Walmart on Black Friday while wearing normal street clothes after driving a Ford Taurus, wearing glasses, between the age of 22 and 33, and living within a 10 mile radius of the store? What horse crap

People have been trampled to death by crowds for centuries. Seems like I've heard on the news of someone, somewhere, being trampled and severely injured or killed at some store having an post holiday discount sale almost every freakin' year since I was old enough to pay attention. For Walmart, or anyone for that matter, to act like this never even entered the realm of possiblity is not only just plain ludicrous, but so unbelievable as to destroy all credibility. Black Friday is notorious ...nay, legendary.... for its hostile crowds beating the crap out of each other to get a stupid piece of junk. It's not even the first time Walmart has been in the news over stampede injuries sustained on its premises. You think they are not aware of the danger? Nobody is that stupid. It's coldly calculated hysteria, purposely planned for the exact crowd resonse they acheive.

I dare you to argue otherwise.

nb

*ONE* child is too many! Oh, wait...

so, you don't know the answer.

Yes, crowds should be outlawed

Your opinion based on what you think has happened, but not backed up with facts.

You think Wal Mart is behind the crowds? No, the idiots form themselves, although the stores probably do take some satisfaction in the publicity in garners.

I just did

A river in Egypt is da' Nile.

nb

More than most.

Yes, but, consider who advises those people to plead out. PDs or Legal Aid. Imagine this. You are arrested for a murder *you* know you didn't do (play along all you "they wouldn't arrest them if they weren't guilty" adherents). You know now the system is capable of pretty serious errors. You're in shock.

First they tell you that you could get 20 to life for the crime and let that sink in. Then, your PD says instead of 20 years, they are offering you 1 year that's really going to be only six months due to overcrowding (which they explain in detail to you). You have no money for a good attorney and your Legal Aid lawyer has no resources to mount a trial should you opt to not take the deal. Now, you are told about the maximum risk you face should you go to trial in the same detail they explained the minimum to you. They'll tell you that doing hard time is nothing like the county lockup you've seen so far. Now there will be plenty of rightfully guilty people taking those pleas and it's rare that they get 1st degree murder arrests wrong, but it's happened and will happen again. The Atlanta bomber and the Anthrax mailer initial suspects turned out to be innocent. Pretty high profile errors, indeed.

People that already have a record aren't much punished by re-arrests. It's the first arrest and conviction that does damage and that's something Legal Aid does not explain well to its clients overall. That won't change unless lawyers, in exchange for their licenses to steal, have to do a mandatory 2 year stint as public defenders before they are granted their full license to practice. Imagine, all lawyers having to deal with the salt of the earth before moving on to Saville Row suits, Mercedes and $600 an hour billing rates. Ha, imagine world peace. Just as likely.

Arrest is a binary system - once you have a rap sheet, you're tainted goods. Not enough parents explain to their kids how important it is to avoid getting arrested for any reason. No good comes of it, but much bad can. When I studied crim, I believe the stats were 1/2 of all American males would be arrested at least once by age 35. For minorities it soared to something like 2/3s, but much of that is attributable to other factors, especially poverty.

Anyway, the moments between when a friend or family member is "picked up" and when they are legally placed under arrest are as important to your legal health as is a good *nearby* ER is to your medical health when you're having a stroke (time=brain). The first few hours is when it's time to have a well-known, local heavyweight lawyer weigh in on your side. Getting arrested for something you didn't do is a pretty traumatic experience. A federal jury awarded that "person of interest" $5.8 mil in the anthrax case.

Even the FBI gets it wrong, sometimes.

Anyone out there who's been falsely arrested knows that it's a psychic earthquake. All our family members carry cards with names of multiple, locally recognizable attorneys and instructions to call them before any questioning takes place and to physically hand the card to an investigator during an attempt at questioning.

Some diehards will laugh but it's what you do first that determines the outcome. Cops just don't like having defendant lawyers there at every step in the process because they know the lawyers are looking for any tiny infraction to try to impeach them should it go to trial. An expensive attorney appearing early in the process assures that the case will very likely go to trial. That can cause the police and or DA/SA to re-evaluate their case. I am sure they would have arrested the mom in the Jon Benet Ramsey case had the Ramseys had not wedged lawyers in that process as early as humanly possible. Heck, a lot of people learned from that case that you can absolutely refuse to answer or even see the police about almost anything.

Sometimes that appointee is a regular old trial (hopefully) lawyer being asked (well, told) to accept low state reimbursement rates. He then often does a job commensurate with his sudden reduction in fees. It's only human nature.

Right... In my area of the country some "mid level" lawyers with good reputations even have "menus" meaning a certain type of case will cost x-amount of money to take on plus billable hours...

We call them McLawyers. "Will you have fries with that uncontested divorce?" In some ways, that's actually good for the clients. I know of many, many people who didn't realize how fast billable hours stack up until they got the huge bill.

Most laws these days are written by lobbyists. That's how ex-Senator Hollings got his name "Senator Disney" . . . by pushing for changes to the copyright law written by them (actually a cabal of similar corporations) that benefitted them. These multi-million dollar judgements awarded against song-sharing grannies are showing just how much companies stacked the deck in their favor with the DMCA.

< . . . nor are the people who wrote such administrative law easily influenced by anyone which you could realistically approach like a US Representative or US Senator...>

If you have anywhere near the clout with your reps that Disney or BP does, then you are one powerful SOB, Evan! (-:

*IF* that's what's happening. But I doubt it. Wal-Mart is more likely be doing a variation of what for years has been known as a "strike suit"

with the purpose not really being to win or lose, but to drag the opponent "over the hurdles" with so many motions, depositions, hearing, reviews, appeals, etc. that they are literally "papered to death."

It makes sense, that Wal-mart, one of the country's largest employers, is flexing its muscle because it is large enough to basically say "we can absorb the costs of a protracted legal battle better than you can." As someone else noted, IBM stalled for ten years, Exxon stalled for more than twenty. Wal-mart is trying to make itself poisonous to regulators. "Dare to fine us and we will fight you into the poor house." That's the part that I think is bad for us because the Feds *have* to expend whatever it takes - and more - to discourage that kind of challenge.

I would guess from what I read that this method was in play by BP to hold off Federal regulators from enforcing any sanctions against them - they were fighting regulation just like Wal-mart. Let's hope Wal-Mart doesn't explode as a result, but stampedes can kill a lot more than one person.

From what I recall from reading about the original stampede, the issue here's quite like the scalding hot McD's coffee. Wal-mart knew from past experience that Black Friday sales crowds have stampeded before. A death was a reasonable outcome of them offering incredibly low sale prices to a unusually large-sized crowd without providing for an orderly means of entrance to the store. Stadiums, theaters and other venues that frequently deal with a crush of patrons have all developed standard means of crowd and entry control (rope, barriers, numbered tickets, etc). Wal-mart was experienced enough at the corporate level to have foreseen an issue with crowd control but they failed to act responsibly.

It was a foreseeable event. For instance, shouting fire in a crowded theater comes with a reasonable expectation of a stampede. If you yell it out in a real fire, you could be saving lives. If there's no fire, you could easily kill someone.

-- Bobby G.

I see your point. Walmart was just fine tuning their process to minimize employee cost and things happen. So an occasional death is really OK because it is a good trade off vs having sufficient properly trained employees.

Those who right the administrative law are often putting in time until they can jump to those they administratively wrote laws effecting. I wonder why nobody thinks that those who right the administratively law are less easily influenced. Maybe less directly, but the thought of employment at big bucks often wanders through the process.

And administrative law types can get it wrong too. Courts have often overturned administrative rules because they went past what was written by Congress, it was unconstitutional, etc.

>

"George" wrote

So, you don't have numbers either. Making up "an occasional death" is conjecture on your part, not fact. Let's deal with facts here.

I guess I didn't realize that you have decided this is a deposition or some other legal proceeding and sworn testimony is required.

I just thought it was a discussion group where folks could make reasonable observations and comments such as I did.

Opinions are welcome, but others have made statements as if they were fact but had nothing to back it up. "Reckless disregard" was what I took issue with. As a mature adult, do you think your comment about "an occasional death is really OK" is true? Was it said in humor?

My point is, Wal Mart certainly did not anticipate the death of a store employee and did not intentionally disregard it or lump it in with the cost of doing business.

No humor and not unheard of. One thing that comes to mind is the Ford fuel tank shields. This is some time back but a more than usual number of fatalities were happening in rear end accidents when fuel tanks exploded. It turns out that Ford simply omitted the part as a calculated risk. The backup was produced and it clearly showed that where they had estimated how many deaths would occur and the cost for that vs the cost of the fuel tank shield. It was cheaper to have people die so that's why the tank shields were omitted in production.

You are interested in facts so how exactly do you know this?

And just so you understand my position. I am a pro business pro capitalism person. One of the biggest influences on me was a guy I worked for in my first really responsible job. He was smart, had a keen sense of business and did well financially. I always remember his words "the other guy has to eat". Simply put you don't give money away but you don't duel to the death of the other party when in a position to do so. Walmart doesn't represent any of that in any way shape or form.

If you're talking about Walmart going to the mattresses over a piddly fine, they've evidently made a calculation that so doing will inoculate them against future outrages by the government. Same as them never settling unmerited nuisance suits just because the claim is minor. If they did settle, they figure, they only incentivize other predators.

Larry, you're right on the mark. Wal-mart and MANY other retailers had indeed seen these sort of stampedes before, especially with these kinds of prices:

(source)

-- $798 Samsung 50-inch Plasma HDTV, a

--- $28 Bissel Compact Upright Vaccum

--- $69 Samsung 10.2 megapixel digital camera

---- $9 for special, current DVDs such as "The Incredible Hulk"

This was the first time someone died but stampedes that cause serious injuries are nothing new to retailers. They are the logical outcome of creating first come, first served sales at cost or below that are designed to create as large a waiting crowd as possible. That's the legal "heart" of this issue: Crowd control at vendor created events. This stampede was one of many. Who hasn't seen videos like these (this was a stampede in Grand Rapids a while back) on the news for *years* now?

When you assemble a mass of people for whatever reason, you become responsible for their actions. Riots are nothing new in the law. And the issue in this particular case isn't really money, according to The New York Times because Wal-mart's already paid out some big bucks over the death:

The Times says that the store's already agreed to pay into a $400,000 fund to compensate those injured and is donating $1.5 million to county programs. They promise to use better crowd control measures in the nearly 100 stores in New York state as well. This is all about the drawing of legal lines of responsibility and what OSHA fines mean to civil litigants. They are trying to avoid setting precedents. It's the business equivalent of a criminal defendant refusing to plea bargain and demanding a trial. As someone pointed out in this thread, the book is indeed "thrown at you" if you refuse to enter a plea and demand a trial. It will be interesting to see where Wal-mart's "hard line" attitude takes them.

There isn't much hard data I can find on the number of total stampede injuries at Black Friday events but there's sure a lot of anecdotal evidence that proves this is a well-known problem that is handled poorly by some retailers at least some of the time:

Writer Tom Barlow asks why Wal-Mart would fight a measly $7,000 fine after spending $2M on the case? He says: "Precedent. In imposing this fine, OSHA is expanding the interpretation of its mandate. By defining crowd control as an employee health and safety issue for which retailers have a legal obligation, it puts a new burden on the shoulders of all Wal-Mart stores, as well as other retailers. Should more stampedes occur, and they surely will, the retailers could be fined by OSHA . Their defense in civil suits after such stampedes could also be weakened."

He quotes a Wal-mart official as saying: "The citation has far reaching implications for the retail industry that could subject retailers to unfairly harsh penalties and restrictions on future sales promotions."

More importantly, he added that they've worked with "nationally recognized" crowd management experts to create a new nationwide plan tailored to the circumstances of a retail setting.

Here's a picture of the crowd just before the incident occurred:

Jdimytai Damour's death got the ball rolling and at least Wal-mart will be implementing better crowd control measures for the masses of people they assemble for their business purposes. This was a foreseeable event, not a spontaneous assemblage of people meeting at the Wal-mart according to a police investigator:

"Detective Lt. Michael Fleming, who is in charge of the investigation for the Nassau police, said the store lacked adequate security. He called the scene "utter chaos" and said the "crowd was out of control." As for those who had run over the victim, criminal charges were possible, the lieutenant said. "I've heard other people call this an accident, but it is not," he said. "Certainly it was a foreseeable act."

Wal-mart has experienced serious trouble before, but somehow, a contract manager with no training (apparently) in company policy supervised the event that got him killed. OSHA has a strong interest in dead workers and they see a recurring problem in this area. Wal-mart, like all malefactors, would like to handle it "their way" but when workers die, some decisions are then taken out of their hands.

Barlow's piece goes on to warn that people should stay away from sales with large crowds if they don't see "ample signage, designated lines, public address announcements, tickets or wristbands, defined entry and exit sites, and sale items dispersed through the store." If you don't, he advises to be aware "it could get ugly."

That's the bottom line. If you are going to create potential panic conditions, prepare ahead of time to insure the safety of people coming to your event. Walmart's mistake has already cost them over $4M and the costs are nowhere near fully tallied yet.

-- Bobby G.