Wal-Mart Tragedy, But What About Liability?

The New York Times and various other news sources have reported on the tragedy that occurred at a Wal-Mart store in New York on Black Friday. A crowd of some 2,000 shoppers, waiting in line for the store’s 5:00 a.m. opening, began pushing and shoving, pressed on sliding-glass double doors until they shattered, and stampeded into the store. One temporary worker was trampled to death.

According to witnesses, the crowd had become a shrieking mob and was out of control shortly before fighting its way into the store. A police official was quoted as saying that the store lacked adequate security, allowing a scene of “utter chaos.”

So what’s Wal-Mart’s liability to the deceased employee and his family? Otherwise? The New York Disability Law Blog suggests that New York’s attorney general should investigate whether the company’s actions or failures were criminal because it used terms like “blitz” and “door-buster” to describe its Black Friday sale, thus creating a “feeding frenzy” to the detriment of its employees’ safety.

There’s no doubt that Wal-Mart wanted a lot of customers to show up and spend money. Even assuming that the retailer failed to have enough security present given the size of the crowd, however, it’s a gigantic leap to equate this with a crime. What happened is a great tragedy, but not every tragedy results in liability on the part of a company or employer.

Let there be an investigation to see if Wal-Mart violated the Occupational Safety and Health Act (OSHA) or New York’s state version of OSHA by the way it handled this matter. An OSHA investigation often occurs when an employee dies at work. If a violation is found to have occurred, fines and penalties will be assessed.

Wal-Mart’s liability to the deceased employee and his family is governed by the state workers’ compensation law, which means that the recovery will be limited. The only way to bypass workers’ comp is to show that the employee’s death was the result of the company’s intentional wrongdoing. In most states, even in tragic situations like this one, showing wrongful intent is difficult. If using terms like “blitz” and “door-buster” equates to criminal or civil wrongful intent or action, all employers should immediately sanitize every piece of marketing material they have.

But there are employment concerns for all employers to consider. Wal-Mart will probably be sued. Even if a successful defense occurs, a lot of money will be spent in the meantime. The publicity surrounding a tragedy like this is hardly something any employer wants, regardless of legal liability issues. And something like this can become a rallying cry for union organization. In fact, union organizers, so far unsuccessful with Wal-Mart employees, are already saying that employee safety is obviously not important to the company — something a union would change.

Even when accidents — tragic accidents — don’t result in employer liabiity, lessons can still be learned. Survey this situation for yourself. Learn from it. Then take appropriate action for your business.

1. 

   PH says:

   December 2, 2008 at 10:42 am

   What’s tragic is that people cannot control their greedy tendencies–do you need that item at such a low price that you must damage public property and throw all regard for human decency out the window???? Why must we continue to bail people out for stupidity and lack of morality??
2. 

   ACU Frank says:

   December 2, 2008 at 11:38 am

   To add to the mix, the deceased worker was from a temp agency, and is not an American citizen. Will these factors allow Wal-Mart to shed even more liability?
3. 

   John Phillips says:

   December 3, 2008 at 7:15 am

   PH,

   Thanks for your comment. Greed, stupidity and immorality all come into play in a situation like this. Right now, we also have a lot of panic and desperation. Mix all of those things together, and there’s tragedy waiting to happen.

   John
4. 

   John Phillips says:

   December 3, 2008 at 7:17 am

   Frank,

   Thanks for weighing in. I would imagine that Wal-Mart and the temp agency are joint employers, so one way or the other, workers’ comp comes into play and limits liability. I don’t think the citizenship issue would have anything to do with this particular matter.

   John