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2009-05-26
Valley Stream, NY. OSHA Scolds Wal-Mart Over Black Friday Death

Six months after the trampling death of a temporary worker at a Wal-Mart in Long Island, it appears that the giant retailer will be able to buy its way out of the justice system. On November 28, 2008, 34 year old Jdimytai Damour of Queens, who was called "a seasonal worker" by Newsday, was asphyxiated by a throng of over-zealous Wal-Mart shoppers. The Nassau county police were the first to lay blame on Wal-Mart for being ill-prepared to handle a large crowd. In a report released in January, 2009, the police concluded that "the responsibility for the security and control of these sales events rests with the store. Store administrators should never market a sales event without having a plan, and the proper resources to manage it." The police report added, "history has shown that large-scale events can turn from an orderly gathering to chaos as the doors open. Ultimately the goal is to provide a safe and comfortable shopping experience for patrons." Just before Christmas, there was a rally held in front of the Valley Stream Wal-Mart. A group called the Committee for Occupational Safety and Health, told the media: "This wasn't the crowd's fault. Wal-Mart should have had a plan in place to deal with this difficult situation." The demonstrators held candles and signs, and wore pins with Damour's face that read "Black Friday kills." A spokesman for the group The Workplace Project, said Wal-Mart's Black Friday failings were just part of a larger issue with its workforce. "I hope that [shoppers] don't go into Wal-Mart," a spokesman told Newsday. "If they do go into Wal-Mart, they should think about how they're walking where someone's blood was spilled." The second pubic office to weigh in on this case was the Nassau County district Attorney, Kathleen Rice. On May 9, 2009, Sprawl-Busters reported that Wal-Mart had agreed to improve safety at its New York state stores as part of a deal with the District Attorney to drop her criminal investigation. D.A. Rice said that if she had brought criminal charges against the retailer in the worker's death, the company would have been subject to only a $10,000 fine if convicted. Instead, the D.A.'s office worked out a deal in which Wal-Mart agreed to improve crowd-management plans for post-Thanksgiving Day sales, and to create a $400,000 victims' compensation and remuneration fund. As another face-saving payoff, Wal-Mart will give $1.5 million to Nassau County social services programs and nonprofit groups. D.A. Rice called this agreement "historic." The D.A. deal allowing Wal-Mart to buy itself out of criminal prosecution, did not sit well with the victim's family. "It's like if they were driving a car and they hit someone, killed him and then just walked away," said Ogera Charles, the father of Jdimytai Damour. The father of the victim noted that the deal leaves him in the dark as to what the investigation of the incident actually found. "It is the epitome of corporate arrogance that Wal-Mart can reach an agreement without admitting their responsibility, and walk away," Attorney Andrew Libo, who is representing the family, told Newsday. The D.A.'s office defended the Wal-Mart buyout, saying the victim's family has access to everything the prosecutors found. After the mild rebuke from the Nassau County D.A., the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) announced this week that it was citing Wal-Mart for inadequate crowd management. "Effective planning and crowd management could have prevented this incident and its grave consequences," said the regional administrator for OSHA. Wal-Mart is facing a mere $7,000 fine from OSHA -- even less than the $10,000 fine the D.A. could have sought. According to the Associated Press, Wal-Mart now has 15 days to respond to the allegations. The fine is the maximum allowed, OSHA said. The agency's citation is issued in cases where "death or serious physical harm is likely to result from hazards about which the employer knew or should have known." A Wal-Mart spokesman told the AP the company "never had a tragedy like this occur in our stores and we never want it to happen again." Despite the inconsequential fine, Wal-Mart protested that the type of citation from OSHA was wrong. "There is no OSHA or retail industry guidance that would have alerted us to this type of unforeseeable hazard. We expect to resolve this matter in a constructive manner that fosters the safety and well-being of our associates." Attorney Libo, representing the dead worker's family, described the OSHA citation as "a step in the right direction with regard to holding irresponsible corporations accountable for their actions."

What you can do: Newsday wrote in an editorial on May 7th that the D.A.'s office had "cut a deal" with Wal-Mart, and expressed concern that Wal-Mart used money to avoid criminal charges. "But the unusual deal raises an uncomfortable question: Was Wal-Mart allowed to buy its way out of criminal responsibility?" The editorial pointed out that "there is nothing in the deal that should compromise lawsuits by Damour's family, or anyone else. It won't hurt Rice's re-election prospects either." Although Newsday admitted that the deal was an "unorthodox arrangement," the newspaper said that the improved safety plan for shoppers across New York state was a good outcome. The newspaper suggested that Damour should have a youth program named in his memory. Wal-Mart has been barraged with national criticism for its lack of a Black Friday security plan. The company is still facing a lawsuit from several plaintiffs who were injured in connection with the stampede. After the death, Wal-Mart's director of corporate affairs said, "We are looking forward to working with local law enforcement officials, as well as lawmakers and other retailers to implement even stronger safety measures for Black Friday going forward." Five days after the incident in Valley Stream, the family of Jdimytai Damour filed a wrongful death lawsuit naming Wal-Mart, mall owner Vornado Realty Trust, and Securitas Security Services USA as defendants in its Bronx Court filing. The Security company named was reportedly providing security and patrol services at the Valley Stream store. The lawsuit charges that the defendants "created an atmosphere of competition and anxiety amongst the crowd that caused the crowd to surge and enter into a crowd craze" and "engaged in specific marketing and advertising techniques to specifically attract a large crowd and create an environment of frenzy and mayhem." The lawsuit also says that Wal-Mart and the other defendants failed to provide adequate security and properly train or supervise existing security personnel, and used ineffective crowd control. The mall's owner, Vornado Realty Trust, issued a statement to the media which said, "We are saddened by the tragic occurrence, but we do not comment on pending or threatened litigation." Readers are urged to call OSHA Region II Area Director Robert Kulick at (212) 337-2378 with the following message: "Director Kulick, It's unfortunate that OSHA's sanction against Wal-Mart resulting from the Valley Stream trampling death amounted to only $7,000. This is less than a symbolic gesture, akin to giving Rob Walton a parking ticket. Between the Nassau County D.A.'s deal, and now OSHA's citation, it appears that Jdimytai Damour's life was not financially worth very much in the eyes of county and federal officials. It will now fall on his family to seek justice and compensation for his death through the courts, since OSHA's 'penalty' is so inconsequential. The Nassau County police found that Wal-Mart did not have the proper resources in place to prevent this kind of deadly incident. But it's hard to decide which is more tragic: Wal-Mart's negligence, or the government's negligence in creating no effective deterrent against similar incidents in the future. Damour's family must be wondering if Wal-Mart can buy justice just like any other commodity on the retailer's shelf. The company's Black Friday promotion ended up promoting mayhem and frenzy instead. Wal-Mart exposed its employees and customers to dangerous store conditions, and a tragedy resulted. Now, the D.A. and OSHA look powerless to do anything of consequence to send a stronger message to the powerful Wal-Mart corporation, which will escape criminal prosecution, and take comfort in the fact that this OSHA story will be just a one-day headline."










 
 
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