Worker's Death Draws $7,000 Fine
In a remarkable role reversal, Wal-Mart has managed to walk all over two agencies that were supposed to sanction the giant retailer for the tragic trampling death of one of its employees on Black Friday last November.
Six months after the death of a temporary worker at a Wal-Mart in Valley Stream, Long Island, the giant retailer has bought its way out of criminal prosecution. 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 out of control 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 second pubic office to weigh in on this case was the Nassau County District Attorney, Kathleen Rice. In early May, 2009, Wal-Mart 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 gave $1.5 million to Nassau County social services programs and nonprofit groups. D.A. Rice called this money-for-absolution 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 left 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.
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,too, 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. 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."
Newsday suggested in an editorial dated May 7th that the D.A.'s office had "cut a deal" with Wal-Mart, allowing the corporation 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 newspaper asked.
Since the Black Friday incident, Wal-Mart has been buried beneath national criticism for its lack of a viable security plan. The company is still facing a lawsuit from several plaintiffs who were injured in connection with the stampede. 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 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.
It's unfortunate that OSHA's sanction against Wal-Mart resulting from the Valley Stream trampling death amounted to only $7,000. This is akin to giving Rob Walton a jaywalking 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 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.
But now the D.A. and OSHA look powerless to do anything of consequence against the mighty Wal-Mart corporation, which will escape criminal prosecution. Six months after Damour's death, the corporate trampling is still going on. This time it's the family and friends of Jdimytai Damour who are being stepped on in the rush to get this case out of the national headlines.
Al Norman is the founder of Sprawl-Busters, and author of the book "The Case Against Wal-Mart. His website is http://www.sprawl-busters.com.