Wal-Mart fights back

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.