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?
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.
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.