Last Updated: Wednesday, February 01, 2017

Black Friday Countdown: OSHA Win Against Wal-Mart Forces Retailers To Improve Crowd Safety
Updated: Wednesday, November 25, 2015

The use of improper crowd control barricades, similar to this style, was an raised in the Wal-Mart Stores, Inc. trial. Photo: CMS c 2012

This yearís Black Friday in the U.S. should be unlike past chaotic and deadly retail sales. This should be good for the safety of employees and shoppers.

The reason for optimism comes after Wal-Mart Inc. withdrew its appeal in March of a $7,000.00 OSHA-New York fine stemming from the infamous 2008 Black Friday debacle at the Green Acres Mall, one of the retail giantís stores in Long Island.

Jdimytai Damour, 34, a temporary Wal-Mart employee assigned the duty of Black Friday crowd management---but without proper training, equipment and management---was crushed to death when unmanaged shoppers in a crowd of at least 2,000 people, surged into the store. Other untrained employees providing crowd management were put in harmís way and scores of shoppers were injured or traumatized. The incident was chronicled in the New Yorker magazine article "Crush Point" by John Seabrook.

It was not until 2010, that the Wal-Mart appeal was heard in New York City before an OSHA administrative judge. Wal-Mart lost its appeal. The retailer appealed again to the OSHA federal court. This spring, Wal-Mart unexpectedly withdrew their appeal and agreed to pay the original $7,000.00 fine. In an unexplained action, the OSHA federal court vacated the original ruling against Wal-Mart (possibly due to an agreement with the retailer). Nevertheless, Wal-Mart was required to pay the $7,000 fine. Thus, acknowledging that the OSHA-New York fine for the retailerís transgressions was proper---or could not be overturned. It was not Wal-Mart alone that was on trial in the broader sense, but the entire Black Friday retail industry. For too long the retail industry failed in its crowd safety responsibilities and, annually mocked, provoked and perpetuated crowd disorders through a lack of safety precautions, ďmayhem marketingĒ and by forcing shoppers to compete against each other for deeply discounted high valued items that retailers knew only a few shoppers could actually obtain.

In other words, retailers turned Black Fridays into rock concert chaos. The financial rewards for the industry are legendary. And, until 2008, Black Friday crowd disorders and injuries received very little media or public safety criticism. Even after the death of Mr. Damour--and other Black Friday participants that have followed---many retailers continue to rev up crowds and pit shopper against shopper.

With the conclusion of the Wal-Mart case, the writing is on the wall for the retail industry. If 2015 and beyond does not bring a significant change in the training of retail crowd management employees and the safe crowd management of shoppers invited to Black Friday stores, criminal and civil litigation will likely raise its ugly head. And, all the failed legal arguments presented by Wal-Martís million dollar lawyers will not shield the retail industry next time around.

Letís hope that this year Wal-Mart Stores, Inc. and other retailers provide their employees and shoppers with a crowd safe environment both outside and inside their stores.

Note: Crowd Management Strategiesí Paul Wertheimer was retained by OSHA to provide crowd management consulting. Mr. Wertheimer contributed to OSHAís crowd management guidance for retailers that is published each year before Black Friday. Mr. Wertheimer was retained as an expert witness by the Estate of Jdimytai Damour in the civil lawsuit. That lawsuit was settled before trial.

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