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It's bad enough that the holidays have become so blatantly commercial; the death of a retail salesperson underneath the
feet of greedy and uncaring consumers is exponentially worse.
The following is my perspective on the matter from a strictly legal point of view.
LIABILITY
A NY Times article indicates that Wal-Mart hired additional security for Black Friday, and so perhaps, in all fairness,
it had taken appropriate precautions at least in terms of manpower, although we don't know that fore sure from the
article since it does not specify how many security personnel were on-hand. In addition, in advance of that morning, it
is not unreasonable to argue that no one expected that an employee would get killed by stampeding masses. That is why
what happened is such a shock.
But still, I think it is reasonable to believe that there is fault on the part of Wal-Mart, and here is why. A mass of
people was reportedly pushing against the front doors, and seeing that occur, the store should have insisted on
security - again, which should have been present in sufficient numbers - enforcing order outside before allowing anyone
inside.
Security could have, for instance, had everyone form a single-file line that tracked around the perimeter of the building.
If people refused or otherwise became disorderly, they could have refused to open the store and/or called police. After
opening the doors, they could have maintained order by slowly allowing people inside one at a time. If people acted in a
disorderly manner, they could be refused entrance. If they continued to cause trouble, the police could be called.
Wal-Mart management, upon seeing customers pressed up against the doors, should have instructed employees not to approach
the doors. In such a situation, it is foreseeable that by getting close to the mob of people they could be putting
themselves in the line of danger.
Was Wal-Mart, however, in these tough economic times, more interested in having shoppers enter the store to buy items
and less concerned about safety? And were they afraid of alienating customers by appearing as if they were using a heavy
hand? Well, again, I wasn't there, but this does not seem like an unreasonable assumption. Wal-Mart being more interested
in profits than in the welfare of its workers? What a shocking concept!
LEGAL REMEDY
With respect to Wal-Mart, normally workers' compensation covers injuries to workers preventing a lawsuit against the
company. But a death qualifies under the "grave injury" exception to the New York workers' compensation law, and so long
as WC benefits have not been received, a direct claim against Wal-Mart is allowed.
But under New York's antiquated wrongful death statute, the surviving family members would only be able to sue for the
lost income they would have received from Mr. Damour and his pain-and-suffering. Unlike many other states, they cannot
sue for the pain and sorrow they have suffered.
Further inequity that arises is that if Mr. Damour had no surviving spouse or children, his case would be of a much lower
value than it would be otherwise, because a 34-year old man in our society generally does not support parents or siblings.
In New York, wrongful death cases brought for the deaths of children, the elderly, single persons and homemakers are
worth a lot less than for working spouses and parents. In effect, the law discriminates against these groups of people.
Second, since Mr. Damour was a Wal-Mart employee and did not earn a high wage, the case is worth a lot less than it would
be for a high-earning deceased.
Hopefully, Wal-Mart and other stores will take more precautions when the next Black Friday rolls around so that the day
truly doesn't live up to its name.
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It was disgusting - frankly disgusting - to hear that on Black Friday a Wal-Mart employee in Long Island was trampled to
death by stampeding customers who apparently forced their way into the store in the early morning hours.