This past Black Friday bore witness to the inherent dangers in failing to properly control a crowd that could and did turn into a stampeding mob oblivious to the fact that a man was being asphyxiated beneath them. Two days after stampeding shoppers trampled a Wal-Mart worker to death at a Valley Stream, New York store, Queens-based New York City Councilman James Gennaro announced his plans to craft a “Doorbuster Bill” that would require retailers to enact greater security measures during major sales. Nassau County is apparently considering enacting a similar law.
On Black Friday, the now-traditional day after Thanksgiving dedicated to enticing shoppers with deep discounts, Jdimytai Damour, a seasonal employee, was killed after a crowd of 2,000 broke down store doors and ran over him.
Wal-Mart representatives said the Valley Stream store had augmented its security personnel and erected barricades in preparation for Black Friday. Existing law in New York imposes a duty upon property owners and stores to maintain their premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable. Applying this general standard to the facts as now known concerning the Wal-Mart tragedy, it would seem relatively easy to establish that Wal-Mart violated its duty considering the forseeability that a large, excited crowd would be present and sufficient security would be needed to control the situation.
So how could a statute such as the “doorbuster bill” enhance one’s ability to impose civil liability? Penal violations established in the bill might not give rise to civil liability. When a statute defines the degree of care to be used under specified circumstances, it does not create a new liability. The key appears to be whether the legislation imposes specific duties or merely defines a degree of care that already exists in the common law.
As a rule, violation of a state statute that imposes a specific duty constitutes negligence per se – that is negligence is established without requiring any more proof other than that the defendant failed to perform the mandated specific duty. The statute could even create absolute liability. Where there is absolute liability, it is not necessary to establish specific acts of negligence, and the defendant cannot contend that its liability is reduced by any lack of care on the part of the plaintiff.
Where the violation of a statute is negligence per se, comparative fault principles apply. Gennaro, whose district includes members of Damour’s family, said the New York City law would seek to define the appropriate amount of security for a major sale and mandate that retailers meet that standard. The law would also determine which sales would need extra security.
Gennaro said the law could also require more communication between major retailers and local police before a big sale. These provisions, if properly worded, could satisfy the requirement that specific duties be imposed so as to create negligence per se.
Said Gennaro, “These early morning, middle of the night crushes of shoppers are essentially street activities and they should be regulated. And there should be requirements put forth, which fortunately some retailers already observe and they have security personnel and they have crowd control. But some don’t and we have to make sure that in every case that is the case.”
According to a witness, dozens of store employees trying to fight their way out to help Damour were also getting trampled by the crowd. Witnesses said that even as the worker lay on the ground, shoppers streamed into the store, stepping over him. Kimberly Cribbs, who witnessed the stampede, said shoppers were acting like “savages.”
“When they were saying they had to leave, that an employee got killed, people were yelling, ‘I’ve been on line since yesterday morning,'” she said. “They kept shopping.”
The United Food and Commercial Workers Union Local 1500 termed the death “avoidable” and called for federal and state labor authorities to investigate. Union president Bruce Both said the store had failed to provide a safe workplace. The retail giant has rigorously resisted being unionized.
The Valley Stream location was not the only one on Long Island where Wal-Mart had trouble. Suffolk County police said a shopper at a Wal-Mart in Farmingdale, about 15 miles east of the Valley Stream location, reported being trampled by overeager customers at around the same time Damour was killed. The woman suffered minor injuries but finished shopping before she filed the report, police said.