The Law Office Of Gerald Oginski, LLC

Early morning shoppers on Black Firday, at a Walmart in Valley Stream, NY turned their desire for discounted price shopping into a deadly stampede.

The crowd rushed through the Walmart doors without regard for human life or safety. A 34 year old man, Jdimytai Damour was crushed to death in the massive stampede.

Importantly, Newsday reported today, November 29, 2008 that Walmart defended their security at the store claiming that they had hired extra security staff as well as hired additional store employees and placed barricades.

Even before the young man was buried, finger pointing started. The president of the Nassau County Police Benevolent Association was quoted in Newsday saying that the Nassau County Police Department should have planned better and should have assigned more officers to patrol high-traffic shopping areas. Countering that statement was the NCPD spokesman who clearly stated that it is the stores' responsibility to provide store security. Compounding the finger pointing, the president of Union Local 1500, Bruce Both of the United Food and Commercial Workers Union is quoted by CNN.com as saying "Where were the safety barriers? Where was security? How did store management not see dangerous numbers of customers barreling down on the store in such an unsafe manner? This is not just tragic; it rises to a level of blatant irresponsibility by Wal-Mart."

OK, so here's the crucial question:

Who's at fault for this horrible display of greed causing total disregard for human life?
Is it Walmart?
Is it the extra security hired by Walmart?
Is it the Nassau County Police Department?

The answers may not be clear-cut and here's why.

(1) In New York, negligence is defined as lack of ordinary care. Was Walmart at fault for not anticipating large and rowdy crowds at their 5:00 a.m. opening on the day after Thanksgiving? According to another report in Newsday, Walmart is quoted as saying that they did expect large crowds and appropriately hired additional staff to deal with the crowds. Another story in Newsday by reporter Ellen Yan stated that "Several major chains have adopted crowd management, which can range from barricades to bargain information." A security expert, Lou Palumbo was quoted as saying that "You don't wait until [the crowds] are at your door. You push out your perimeters and start to orderly allow people onto your property."

(2) Did Walmart hire these additional security personnel as independent contractors from an employment or security agency or were they considered Walmart employees. The distinction is important for determining whether Walmart is legally responsible for the actions of their employees.

(3) Was the security in place at Walmart sufficient to allow for the orderly processing of shoppers into the store? The answer appears to be an obvious "No," based on the facts as reported in the newspapers.

(4) There is also a report coming out of news reports that a Walmart employee seems to have antagonized the crowd by telling them that the store would open before 5:00 a.m., and then immediately telling them that it was a joke and would not open before 5:00 a.m. It is not yet clear whether this was a root cause for the pushing that led to this disaster.

(5) Is the police department responsible? Well, we know that the stores are responsible for store security, however, these lines and barricades are taking place outside the store. The other question is whether the owner of the property bears any responsibility for this disaster in failing to properly plan and execute security and control for the stores on its' property.

(6) Were the additional security staff properly trained for dealing with such large and unruly crowds? Only a lawsuit and discovery of what these people knew will give us the answers to that question. If they were 'rent-a-cops' hired to temporarily staff the parking lot and store for this day only, an argument could be made that their training was totally insufficient to deal with the tragedy that took place on Friday.

Let's assume that negligence can be proven against at least one of the groups listed above. The next important question is what is the value of this young man's life?

DAMAGES

The value of human life is incapable of an exact number. If you ask a mother what the value of her son is, her reply will be that he was "Priceless." If you ask an economist the value of human life, he will look at what that man was earning, whether he was supporting a family, what his personal yearly expenses were, what benefits he was receiving from work, including health insurance and a pension plan. The economist will come up with a range of numbers taking into account inflation. Inflation is a change in the amount of money you have today compared to the value of that money years from today.

In New York, when a family brings a negligence lawsuit for someone's untimely death, this is known as a "Wrongful death" lawsuit. Typically, the damages in a negligence and wrongful death lawsuit include (1) pain and suffering from the time of the incident until his untimely death; (2) pecuniary loss-which is a fancy term for "economic loss" to the victims' family; and (3) the loss of a parent or child.

In cases where the victim was not working, then it is impossible to claim that the victims' family suffered financial loss as a result of their loved ones' death.

In this case, it is also not clear yet what the precise cause of death was, as the medical examiner has not yet completed an autopsy. However, if it can be shown that the victim experienced seconds or even minutes of pain and suffering before his death, also known as fear of impending doom, then a claim for pain and suffering can usually survive an attempt by defense lawyers to dismiss that claim prior to trial.

THE BOTTOM LINE

If in fact this tragedy was preventable and could have been avoided, then Mr. Damour's family is entitled to be compensated for the horror that their son suffered. When trying to find an attorney to handle this type of wrongful death case make sure you find an experienced personal injury and accident lawyer that handles negligence cases and wrongful death lawsuits in the State Of New York.

About Gerry

Gerry Oginski is an experienced medical malpractice and personal injury trial attorney practicing law in Brooklyn, Bronx, Queens, New York, Staten Island, Nassau & Suffolk. He has tirelessly represented injured victims in all types of medical malpractice, wrongful death and injury cases since 1988. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a file number in his office.

For more information, call Gerry personally at 516-487-8207 for answers to your legal questions.

Also, go over to http://medicalmalpracticetutorial.blogspot.com for Gerry's free instructional videos on New York Medical Malpractice, Wrongful Death & Accident law.

Negligence Cases

1/21/2009
Gerry Oginski
Comments (0)

NY Accidents & Injuries- "Why Isn't The Store Responsible For My Injuries?"

I was asked this question today by a very educated man. He knew someone who had walked into a store, gotten hurt while taking something off a shelf, and assumed that the store was totally responsible for the other man's injuries.

I asked "Did the store know about the dangerous condition before this man pulled the object off a shelf?" "Why is that important?" asked this intelligent young man.

It's important because in the legal world, in New York, I must be able to prove that the store had "Notice" about a dangerous condition and that the store failed to time act to correct the problem before someone got hurt. This man felt strongly that the store should be held accountable for any injury or accident that takes place within its' premises. An encouraging thought for an injured victim, however, that is not what the law says.

In order to hold a store responsible for an accident that causes injury in New York, the employees of the store had to know about the dangerous condition and fail to timely fix the problem. If the people who worked in the store did not know about a dangerous problem, how then can they be held accountable for any injuries that happen while in the store?

There is another instance where a store will be found responsible for injuries arising out of an accident. Let's say that a dangerous condition existed for a lengthy period of time, so that "everybody" who went by that area of the store knew there was a problem, yet nobody fixed it.

Where the defect is present for such a long period of time, the law says that the store, or its' employees are deemed to have "Constructive Notice" of the defect, and they should have fixed it long ago.

Here's a good example: You're in the produce section of your supermarket. A shopper immediately in front of you accidentally drops a few grapes, and seconds later you step on it. You fall and fracture your leg. Is the store responsible? In New York, the answer likely is no. Why not? Because the people who worked in the store didn't know, and didn't have enough time to know of the dangerous condition. Therefore, there was no way they could have cleaned up the grapes before the accident happened.

Ok, here's another example: What if a shopper accidentally knocks a jar of tomato sauce to the ground, causing the jar to shatter and tomato sauce to splatter all over the aisle. Suppose that ten shoppers reported the damaged jar with sauce on the floor, and after ten minutes nobody has cleaned up the mess. Along comes some oblivious shopper, mindful of only herself and her grocery list.

You know what's going to happen, right? She slips, falls, and fractures her hip. Is the store responsible? As long as we could prove that the store had a policy of cleaning up their messes within minutes of being notified, then a gap of ten minutes without a clean-up might be construed as showing they had sufficient time to clean up the problem and failed to do so.

The bottom line is that when an accident happens in a store, you must notify the management immediately; have them complete a written report, and you should immediately go to the hospital for treatment if needed.

Car Accidents

4/3/2009
Gerry Oginski
Comments (0)

Is It Ethical For a Lawyer To Send a Letter to a Car Accident Victim?

Q: My mother was in a car accident last week, and already she's gotten letters from lawyers

asking if she's ok, and if she wants a lawyer? Is it ethical for a lawyer to send such a letter?

A: First, I hope she is feeling better. Second, in limited circumstances in New York, it may be

'acceptable' for an attorney to send such a letter to a victim of an accident. However, new ethical rules

say that a lawyer may not send an unsolicited letter to a victim's family within the first 30 days of the

incident.

In any event, the majority of lawyers feel such a letter to a victims' home is demeaning and degrading.

Some lawyers feel this is nothing but a solicitation, which is clearly not permitted in New York. Other

attorneys (the ones who send these letters) feel that it may be their only chance to entice the injured

victim to come to them as a client.

The letter is supposed to only offer them legal assistance and guidance- should they want it. Again, how

do you choose which attorney to use when you're inundated with a flood of letters from different

lawyers promising to help you with your accident claim?

The answer is simpler than you think. Ask yourself why an attorney would even bother to send such a

letter. Are they really that desperate to need to send such a letter? How did they get your name anyway?

I'll tell you how- maybe it came from the tow truck operator who took your car away. Maybe it was

from an ambulance technician. Maybe it was from a police blotter at the police station. (That's public

information that many investigators working for lawyers troll for in various police stations).

Ask yourself another question. Do you let a stranger into your house simply because he says he saw you

need a paint job, and amazingly, he's a painter who is willing to paint your house for a great price? Did

you call him? No. Did you seek out other customers of his to determine if he's reliable and professional?

No. He just showed up while trolling through the neighborhood. Is this the type of painter you want

working on and in your house? I don't think so.

The same rationale holds true for a lawyer that sends you an unsolicited letter following an accident.

What do you know about that lawyer? Probably nothing. Does that mean that he (or she) isn't a good

lawyer? No. But, again, think who you want for your attorney. Does it help knowing that your lawyer

gets many cases this way, by sending out unsolicited lawyer letters hoping that a few unknowing people

will answer the letter? The choice, as always is yours. Make an informed choice.

Labels: "gerry oginski" "new york" accident accident report ambulance attorney bicycle bike bronx brooklyn bus car death fracture lawyer long island nassau negligence negligence cases

11/26/2008
Gerry Oginski
Comments (0)

NY NEGLIGENCE LAWYER-The Large Law Firm Trap

You suffered a terrible accident. You have been in the hospital for weeks now. Your family is angry that you are now physically disabled. You wonder when, if ever, you'll be able to return to work. Physical therapy is not helping much. Your treating doctors are not that encouraging. You fall into a state of despair. You know you want to sue the driver of the car that hit you and caused all these ailments, but you do not know a New York accident attorney. Nor do you have any friends who know a good attorney they could recommend.