Family Of Wal-Mart Employee Jdimytai Damour Sues Over Trampling Death

GARDEN CITY, N.Y. � The family of a worker trampled to death in a "Black Friday" crush of bargain hunters at a Long Island Wal-Mart store filed a wrongful-death lawsuit on Wednesday, claiming store ads offering deep discounts "created an atmosphere of competition and anxiety" that led to "crowd craze."

The lawsuit claims that besides failing to provide adequate security for a pre-dawn crowd estimated at 2,000, Wal-Mart "engaged in specific marketing and advertising techniques to specifically attract a large crowd and create an environment of frenzy and mayhem and was otherwise careless, reckless and negligent."

Wal-Mart issued a statement saying it would cooperate with local law enforcement officials to develop stronger safety measures for the future.

"We consider Mr. Damour part of the Wal-Mart family, and are saddened by his death," the statement said. "We have been in communication with members of his family to do what we can to help them through this difficult time. Our associates know that when incidents like this occur, we take care of our own."

In addition to the retailer, the adjacent Green Acres Mall, a realty company that manages the property and a security company hired to patrol the property were all named as defendants. A spokeswoman for the realty company declined to comment on pending litigation; none of the other defendants immediately responded to phone and e-mail inquiries seeking comment on the lawsuit.

Jdimytai Damour, 34, had been hired by an employment agency as a temporary worker at the Wal-Mart store in Valley Stream and had been on the job about a week when he died, said his family's lawyer, Jordan Hecht.

The 6-foot-5, 270-pound man died of asphyxiation after being crushed early Friday morning by the crowd, which broke down the electronic doors in frantic pursuit of bargains. At least four other people were treated at hospitals, including a woman who was eight months pregnant.

Authorities suspect that because he was as big as an NFL lineman, Damour was placed at the entrance of the store to assist with crowd control.

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"Those hundreds of people who did make their way into the store, literally had to step over or around him or unfortunately on him to get into the Wal-Mart store," Nassau County Police Commissioner Lawrence Mulvey said this week.

Police are reviewing store video to identify possible suspects in Damour's death, but Mulvey conceded that criminal charges are unlikely.

Mulvey said it was apparent to him that the Wal-Mart store about 20 miles east of Manhattan lacked adequate security to handle the crowds. He said police representatives met with retailers throughout the county two weeks before Thanksgiving and made it clear that security and crowd control for the sales were the merchants' responsibilities.

Hecht said Damour's family also plans to file lawsuits against Nassau County and its police department.

County Attorney Lorna Goodman said, "The county has no liability in situations of this kind."

The lawsuit against Wal-Mart and the other companies was filed Wednesday in state Supreme Court in the Bronx, the home of one of the victim's sisters, Elsie Damour Phillipe, the court-appointed administrator of his estate. It does not seek specific damages.

Shoppers around the country line up early outside stores on the day after Thanksgiving in the annual bargain-hunting ritual known as Black Friday. It got that name because it historically has been the day stores broke into profitability for the full year.

The National Retail Federation believes Damour is the first store worker to die on the job in the post-Thanksgiving rush.

Comments

[LeonBNJ]

No amount of money can ever bring Mr. Damour back from this act of manslaughter. I am disturbed by the quick march to the courthouse to file a civil lawsuit, less than a week after he was killed. The case was filed in Bronx County, NY City, a jurisdiction notorious for massive (and usually significantly reduced on appeals) personal injury lawsuits. The lawyer will get their 1/3 or more cut - that is wrong for such an easy to settle matter. Of course, Wal-Mart will first deny anything in the complaint, will probably get $1000/hour defense counsel and will likely get the case removed to Nassau County, the site of the store, the home of co-defendant Nassau County police department and where the horrible death of this man took place. The Defendant's will most likely make endless motions to delay, reduce and limit their liability and find any dirt on Mr. Damour to limit his estates' possible award.

[slaxx]

i actually believe that their property insurance company will be handling the case...and/or workman's comp. the ins. co. will decide whether to fight or settle.

[Oahspe]

I havent heard anyone mention this,but did WalMart ever consider with a crowd this size that there was the real possibilit of gunplay. THAT would have been an immediate concern of mine ,had I been a mangaer.That would have been my first thought of weapons being used if a fight broke out.That reason alone would have been justification for security outside the store. The articles said there were security people inside the store, but none outside were visible.

[drvck70]

Are you implying that because the crowd was majority black that guns somehow had to be involved, sure sound like that's what you are saying. Are you rascist

[Oahspe]

Uh...are you stupid? Didn't you hear about the shootout at the Tos R Us in California that same day-and their wasn't evebn a stampede. Man, you must be a troll.

[ARobinson]

Their color never occurred to me and I don't think you can assume that was what Oahspe thought either. It never occurred to me that the crowd as mostly black. I live in MN and there aren't a lot of black people here compared to other parts of the country. I do agree with Oahspe on the gun issue regardless of color. Just like the shootings in the ToysRUs. I have no idea what color those people were and it scares me to shop this time of year regardless. Crazy people come in all colors.

[ByersL]

This is even worse than I thought. For some reason, I imagined a smaller and older man, who might have been pushed and then knocked down because he was more frail. Now knowing that he was a young man, strong and tall, is just awful--the crowd must have behaved like maniacs! I have never shopped at Walmart, it isn't convenient to me, but now I never will. Other stores like Target and Costco, would never have something like this happen. My condolences to his family, and Walmart: let your workers unionize!

[BigGuy]

The man killed was not employed by Walmart. He was their agent, not their employee.

He was working for a security agency hired by Walmart. Using the security agency, rather than hiring an employee, allows Walmart to escape some liability and responsibility.

If Damour had just been injured, he would be seeking workmen’s comp from the security firm and wouldn’t get anything from Walmart. Since he died, Walmart will assert that his survivors should be limited to obtaining compensation from his employer — the security firm — actually, the security firm’s payments to NY state workmen’s comp, not from Walmart.

To obtain compensation, Damour’s survivors need to sue. Their case would be much stronger if NY State finds Walmart to have exercised criminal negligence with regard to crowd control. Walmart would settle quickly out of court, if the firm is criminally charged. If Walmart is not criminally charged, Walmart will push the civil trial far to the future. Walmart will argue that the maximum that the man's family should be compensated is $56,000, as detailed below.

per the New York State Workers' Compensation Board
Death Benefits

If there are no surviving children, spouse, grandchildren, grandparents, brothers or sisters, parents or grandparents entitled to compensation, the surviving parents or the estate of the deceased worker may be entitled to payment of a sum of $50,000. Funeral expenses may also be paid, up to $6,000 in Metropolitan New York counties; up to $5,000 in all others.

[slaxx]

i have read nowhere that he worked for a security firm hired by walmart. if that were the case, it would probably be strictly a workman's comp case.

i don't know the laws as far as when neglience is involved in a workman's comp case; i think in the case of neglience, employees are entitles to more than WC.

either way, the insurance companies will probably be the ones to pay for it - either WC or property insurance.

[Oahspe]

From the Wall Street Journal:

Jordan Hecht, a personal-injury attorney retained by Mr. Damour’s three sisters, said Wal-Mart didn’t have enough security guards at the Long Island store and the staff wasn’t properly trained.

“Hundreds of stores around the country have these kinds of sales, but a tragedy only happens if you don’t prepare,” Mr. Hecht said. “You need to have people line up in a queue in an orderly fashion, with people giving them updates.”

Mr. Hecht will decide whether to file a lawsuit against the retailer and possibly other parties after he reviews all the police reports, he said.

Mr. Damour was hired through a temporary-employment agency; if he is deemed to be a Wal-Mart employee, the retailer’s liability may be limited under New York state’s worker-compensation laws, Mr. Hecht said._____________________Excerpt from article in WSJ by Ann Zimmerman

[BigGuy]

I was mistaken in saying that Damour was hired from a security agency. He was a temp hired from a regular employment agency. The local Walmart requested a big guy because they needed someone to unload trucks and stock merchandise. Then, since Damour was 6'5", 270, and solid, they had him work the door.

The source for workmen's comp info is
http://www.wcb.state.ny.us

[drvck70]

Is there any video or stills on the net of the crowd before they pushed in the entrance, I'd be curious to see what their state of mind was while this was all going down, are they whipped into a frenzy and eyes glowing red. Its amazing how thin the veneer of civilization is when deep discounts on cheap chinese wares are to be had. Perhaps next year Wal Mart can station security in riot lines at all their entrances, armed with tear gas and rubber bullets, they would of course be sued for that too though.

[slaxx]

i doubt they will be releasing that tape anytime soon. i think my local news has only shown stills (i live in ny and don't watch the local news too often), but it was only of the police officers tending to him and not the people actually pushing in and walking over him.

i don't know that i really need to see it.

[espresso4me]

Wal-Mart, please explain to the world, to Mr. Damour's family, why management thought this was a safe idea to simply open Wal-Mart’s doors without a plan…Without some awareness about what was just outside Wal-Mart’s doors…Without giving thought to contacting local law enforcement to assist in helping contain the crowds…Where was Wal-Mart management before those doors were unlocked?

And where is a union to protect and uphold the workers’ rights? Why is this abjectly rejected by corporate?

My heart goes out to Jdimytai Damour and his family for this senseless tragedy. I certainly hope that they will be monetarily compensated waaaay beyond reason--because there was no reason for this death to occur. Wal-Mart is responsible for how its stores are managed--and this does not reflect well on whatever training management received under the corporate guidelines.

[slaxx]

i agree with your post, but fyi, the police departmnet had already notified all stores that it was their responsibilty to provide security for their stores (as they should be).

does anyone know if walmart had hired any security or just used it's own employees as "security"?

[RJII]

he is a fallen hero

[Dunworkin]

People all around the world are dying of starvation,sickness, lack of clean drinking water wars.and thousands of other reasons and here in a free country full of food and water and doctors to care for the sick , people trample a young man to death just so they get a bargin,my only hope is for those who are guilty of this terrible crime they get up on Xmas morning and tell their kids what they done to get the bargin presents. May all the prayers be with the family of the young man,for i know their xmas will be sad.

[TRYKER]

"But for" is the whole thing. But for Walmart's ads and promotional actions which created the crowds, the man would be alive. But for their negligence in not having adequate security control, the man would be alive.
I think Walmart will be a bit more "correct" in dealing with this death than they usually are with law suits. Bad PR right now will cost them too much. But then, there are the lawyers.

[slaxx]

"We consider Mr. Damour part of the Wal-Mart family"

that's just insulting...

[Oahspe]

I'd be insulted if they called me a part of that family! But wait, wasn't WalMart originally trying to distance themself saying he was a cotnract temp worker,at first. Oh,that's right it was later dteermined that it was legally to WalMAat's advantage to declare him a WalMart worker for litigation purposes.

[BrianMac]

For real! Since when do people set up a situation where a member of their family would die and then feel bad about it?

[Oahspe]

I have read several accounts on this tragedy. The articles have variously stated that Mr.Damour,hired from a temp agency, was between 6'4 and 6'7 and wieghed about 250. Now, I would be curious to know,was he hired FOR his size? Did WalMart management specifically request a big,big guy? From what I've read maintenace workers and stockers dont require this stature, report that these were his various temp titles.That said, to me this would be an admission that the store KNEW there would be an onslaught,and wanted a beefy guy to deal with it. But didn't wnnt to spend the $$$ to invest in real security. Does anybody know if the budgets for these events are paid for by the home office or from the individual store? Just maybe, the manager might have been trying to cut corners for budgetary purposes.

[slaxx]

your post is right on on many levels. i think he was a stock/maintenance worker but they purposely put him in the place of security because he was so big, even though he had no training.

don't know why the family's suing the county and p.d. though, could just be a legal thing or the lawyers just want to bill them for more work...

nothing can make up for this man's death. nothing.

[Oahspe]

My guess is that its strategy.WalMart will tie this up for years. Maybe going at the local level will be useful in getting info otherwise unavailable to help them build their case.

[deminmo]

Usually hiring outside security means clearing the payroll through
a corporate office, but hiring is done at store level. Which falls within
the responsibility of a store manager or an assistant manager.
Off-duty police officers have been hired by malls for additional
security to deter shoplifting and for crowd control. I was in a situation
of being the victim of a misdemeanor assault from a teenager when
I worked at a mall and the police, not private security, were there to
handle it.

[BigGuy]

But an off-duty cop carrying his firearm can cost over $50 an hour hired directly, over $75 an hour hired from a security agency. A temp from an agency is paid a little above minimum wage and would be charged out at double that.

So Damour was likely getting paid less than $10 an hour (likely $8) and billed out at less than $18 an hour while an off-duty NYC cop showing up in uniform -- at 5 in the morning -- would be paid over $50 an hour and billed out at something like $125 an hour, with a minimum of 4 hours billing.

$500 versus less than $20 -- to make up that $480 difference, based on net margins at Walmart (about 2%), the store would need $24,000 more in sales. With two off-duty NYC cops in uniform, which is really the minimum for crowd control, that'd be $50,000 in additional sales needed to pay for that expense.

Unlike Mr. Damour, off-duty cops won't do stock work or sweep. And they will refuse to take orders from store management about how to do their jobs, how to provide crowd control.

[Norak]

Is there any word about what wal-Mart plans to do to avert this happening at the next big sale?

[slaxx]

no, but i'm sure there will be.

[Oahspe]

How much you wanna bet they're not gonna advertise another Black Friday "DoorBuster" next year,too?

[pillgirl]

i'll take that bet. they will absolutely be advertising doorbusters for years to come. i dont think this tragedy will change their practices.

[Donkeykick]

God Bless Those Parents. I hope they win!

[atomic]

I hope the family gets millions from Walmart. Next time Walmart will make sure that peoples safety comes first before their profits.

[benne]

This would never happen in a union shop. Why don't more people point this out? All these tragedies happen in non-union mines, shops, and corporations.

[deminmo]

To the Damour Family,
Deepest sympath to all of you on this senseless death.
Don't let Walmart intimidate you. Do not settle with them
just to get them off the hook. They aren't as concerned
about you or Mr. Damour's death as they are the negative
publicity. Good luck and I hope the money somehow provides
some bit of closure, though it will not be nearly enough.
To Walmart,
Do the right thing for the right reasons. Spouting rehtoric about
"taking care of an employee" when you know a lot of the time
it takes lawsuits just to get Workmans Comp payments! Put
up Mr. Damour's picture in your store for a year, and say he died
because of your mistake.