Wednesday, February 01, 2017
Why Was This Black Friday Safer Than All Other Black Fridays?
Updated: Tuesday, December 01, 2015
|Black Friday egress the right way. Proper barricades, reasonable crowd density, etc. Photo: Crowdsafe (c) 2009|
This year, 2015, is likely to be known as the year sanity and crowd safety replaced the retail industry’s notorious Black Friday retail chaos, especially in the U.S. Nobody is known to have died or suffered critical injury as of this writing.
Black Friday’s have been the retail industry’s ugly dark side for decades in the U.S. Traditionally scheduled for the day after Thanksgiving Day in November (but, more recently kicking off on or before than), it was the industry’s last chance to end the fiscal year in the black. The timing and coordination was perfect, coming at the beginning of the Christmas shopping season and coupled with deep discounted items in hot public demand. That should have been all retailers needed to do to draw customers to their stores.
But, it wasn’t enough for retailers. Slowly, growing over time, was the intentional, or expressed disregard for the safety of their shoppers who were drawn to Black Friday events in ever larger crowds and waiting under difficult conditions---like rock fans---at stores hours before “door buster” openings.
What retailers learned from this marketing approach was that allowing a certain amount of mayhem was good for business, even if there were occasional injury incidents. Crowd Management Strategies labels mayhem marketing. Another bonus was the uncritical media attention that more often than not trivialized the recklessness of media retail advertisers, if not acting as Black Friday cheerleaders to the chaos. In other words, the craziness that works so well selling product and creating legends for rock and rap concerts and their stars, could do the same for stores. Local government leaders and safety agencies stood on the sidelines, or were sidelined by political policy.
Local authorities were involved in Black Fridays, too. But, not in a good way. Too many politicians and safety officials across the nation let the madness drone on year after year. There was a benefit in this approach for local and state coffers in the form of an end of the year sales tax spike. Anyway, what was the harm? While a reasonable estimate of the number of people injured, or put in harm’s way, over the decades would reasonably be in the many thousands, nobody had been killed as a direct result of a Black Friday crowd disorder.
In 2008 that all changed.
Jdimytai Damour, 34, was a temporary worker hired by Wal-Mart for its Black Friday event (November 28, 2008) at the Green Acres Mall in Valley Stream, New York. Without experience in crowd safety or training or proper equipment or proper supervision, Mr. Damour was given the duty of interior front entrance crowd control. Mr. Damour died that day when he was trampled by the mismanaged crowd of at least 2,000 Wal-Mart shoppers; hundreds of whom were pressed against the store’s entrance doors when they crashed through at 5 AM, the store’s official Black Friday start.
Without actually seeing the security videos of the incident, it may be difficult for some crowdsafers to understand how out-of-control Wal-Mart store management had allowed its crowd to develop. Suffice to say, that the chaos had reached a level that a person of the stature of Mr. Damour, standing at 6’5” and weighing approximately 300 pounds could be overwhelmed and trampled to death. Other employees were able to flee the crowd by scaling beverage machines that were serving as make-shift barricades. Many shoppers were not so lucky. They, too, were trampled, tossed around and in some cases, found their escapes thwarted as store security blocked their escapes and pushed them back into the crowd chaos.
The Black Friday crowd tragedy was also too much for the Occupational Safety and Health Administration (OSHA)-New York regional office. With determination, and some jitters, the office code enforcers went ahead and cited Wal-Mart Stores, Inc., under OSHA’s General Duty Clause. It was not the strongest act they could take against Wal-Mart Stores, Inc. But, it made a bold statement and for the first time, raised as an area of OSHA concern, the safety of workers involved in crowd safety. As a result, Wal-Mart Stores, Inc., found itself slapped with a citation for allegedly placing its workers at its Green Acres Mall in harm’s way by not properly training, supervising and managing the employees performing crowd management and crowd control. The fine for the alleged violation? A paltry $7,000.
That should have been the end of the story. But, Wal-Mart Stores, Inc., took umbrage at being fined. To fight the $7,000 citation, the retail giant hired the formidable Manhattan law firm Gibson& Dunn, who used the moniker “Game Changers.” The firm specialized in labor issues and found itself frequently defending clients in court or challenging OSHA regulations.
Gibson & Dunn argued, on behalf of Wal-Mart, that, among other things, since no business had previously been fined for failed worker involved crowd management incidents, neither should Wal-Mart Stores, Inc. There was also a bigger and somewhat unspoken issue under the surface that could be precedent setting. And that was, who was responsible for the safety of employees involved in crowd management and crowd control events? (And, indirectly, there was the issue of the safety of the crowd,itself.) OSHA knew this. The OSHA crowd safety expert hired to help the agency---Crowd Management Strategies’ Paul Wertheimer---knew this. And so did the U.S. event industry.
It was not mere coincidence that Wal-Mart Stores, Inc., attorneys hired independent defense experts including a former police officer, an International Association of Venue Managers high profile member and a high profile volunteer retail technical committee member of the National Fire Protection Association (NFPA). At the time, Mr. Wertheimer was also a member of the NFPA as well a volunteer member of the technical committee on assembly occupancies. The organizations themselves, and others like them, stood on the sidelines during this pivotal crowd safety battle. To the likely consternation of Wal-Mart, their experts testified that Mr. Wertheimer’s list of crowd safety techniques capable of mitigating or prevented the Black Friday chaos and tragedy were reasonable.
In the summer of 2010, the 2008 Black Friday appeal went to trial. It last about four day before OSHA Chief Administrative Law Judge Covette Rooney in Manhattan. But, the trial verdict by the judge was not handed down until 2010. Judge Rooney ruled in favor of OSHA. The judge concluded in her opinion:
“Respondent’s [Wal-Mart Stores, Inc.’s) precautions to protect its employees were minimal and ineffective. The record also supports the conclusion that employees were exposed to serious injury or death and that the probability of injury was high. Based upon these factors, the proposed penalty of $7,000.00 is found to be appropriate. That penalty is accordingly assessed.”
Wal-Mart Stores, Inc.’s immediately appealed her verdict, as was expected. In the process of appealing the $7,000 OSHA citation, Wal-Mart Stores Inc., admitted to spending $2 million dollars. That amount, it is reasonably assumed, neither included the legal costs and litigation settlement associated with the Damour family civil lawsuit nor the a 2009 financial agreement with then Nassau District Attorney Kathleen Rice, who according to media rumors, was considering criminal charges against Wal-Mart. The Nassau County agreement, according to published reports, included the distribution of $400,000 to the numerous victims of the 2008 Black Friday crowd incident and $1.5 million in grants to various Nassau County nonprofit organizations. The additional costs associated with second and final appeal is not known.
Wal-Mart’s second appeal, and last option, to the Occupational Safety and Health Review Commission in Washington, D.C., languished for years. The Review Commission lacked a full complement of judges. Finally, in the spring of 2015, the commission was ready to address the retailer’s appeal. But, that was not to be. Wal-Mart Stores, Inc., surprisingly withdrew its appeal, as if it knew the appeal would fail. Wal-Mart Stores, Inc. agreed to pay the $7,000 OSHA citation and in so doing established OSHA’s nationwide jurisdiction over crowd management and crowd control in the workplace.
OSHA’s hard fought win culminating this year is now the game changer in American crowd safety standards in the workplace and wherever public assembly events are held. Workers and the public will benefit as will the private sector---including retailers like Wal-Mart Stores, Inc. Both assertions have proved accurate already, with the safest Black Friday in recent memory.
The American public can thank the dedicated OSHA administrators and attorneys for their unflinching commitment to workers’ safety. Over the years, many OSHA administrators, code enforcers, lawyers and support staff were involved. Too many to mention here---and some, unknown to Crowd Management Strategies. Nevertheless, a core group of young frontline Labor Department attorneys from the Regional Office of the Solicitor in New York deserve special credit. They were the OSHA frontline who faced off against Wal-Mart’s intimidating top gun in-house lawyers and private law firm. Housed in a former Manhattan warehouse building, with practically no windows ---and without even an office coffee pot---attorneys Darrell Cohen, Sudwiti Chanda, Kathryn Steward lead by Jeffry Rogoff (along with Diane C. Sherman) worked non-stop in their dedication to see the citation stick.
Why was this Black Friday different than all other Black Fridays? In simplest terms, the credit goes to OSHA. But, not without support did they fight the fight. In other words, the legal contest OSHA lawyers fought so hard to win took the Obama administration’s support and the U.S. Secretary of Labor’s reasoned and skillfully guided strategies.
Note: Crowd Management Strategies’ Paul Wertheimer was retained by OSHA to provide crowd management consulting. Mr. Wertheimer contributed to OSHA’s 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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