Employee trampling death: Judge rules against Wal-Mart
March 30, 2011 by Fred HosierPosted in: Fatality, In this week's e-newsletter, Latest News & Views, What do you think?, Who Got Fined and Why?, new court decision
A judge has ruled that Wal-Mart should pay a $7,000 fine in connection with the trampling death of one of its employees. But this case may not be over yet.
Wal-Mart had appealed the OSHA fine, questioning the agency’s use of its General Duty Clause (GDC) to issue the citation.
The GDC says employers have a general duty to provide a place of employment that is “free from recognized hazards.” OSHA uses the GDC to issue fines when no federal safety regulation applies. OSHA doesn’t have a regulation regarding crowd control in retail stores.
Wal-Mart said there was no previous federal government or retail industry guidance on how to prevent the trampling death.
After the employee’s death in its Valley Stream, NY, store, Wal-Mart implemented crowd control measures.
Following an opinion from an administrative law judge, a company has 20 days to appeal to the next level: a hearing before the entire Occupational Safety and Health Review Commission.
A company spokesman told Bloomberg news Wal-Mart will probably appeal the decision.
A lot of resources have been spent on both sides of this case.
Last summer, The New York Times reported that Wal-Mart had spent $2 million fighting the $7,000 fine. The same article noted that OSHA had poured 4,725 hours of work by federal legal staffers into the case. At $125/hour, the rate at which OSHA can be ordered to reimburse companies when they win the appeal of a fine, OSHA has spent almost $600,000 on the case.
The stakes are high for both sides. An upheld fine means Wal-Mart, and any other retailer across the nation, could be cited by OSHA in the future for injuries to employees in crowd conditions.
A ruling in Wal-Mart’s favor could restrict OSHA’s use of the GDC.
Is it time for Wal-Mart to just pay the fine? Or should it continue to fight, no matter what the cost? Let us know what you think in the Comments Box below.
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Tags: crowd control, General Duty Clause, Wal-Mart trampling death
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March 30th, 2011 at 11:20 am
Pay The Fine!!!!……………There was a DEATH!!!!! Take care of the Family!!!!!
All Know ABOUT BLACK FRIDAY
Gimme a break!!!!!!!
March 30th, 2011 at 12:42 pm
The fine has nothing to do with the Family. I side with WalMart on this one. There is no guidance whatsoever that had this as a recognized hazard for workers. There was no way to foresee the crowd acting with complete disregard for human life. If anything the family of the deceased should be going after those in the crowd in civil court.
If OSHA wants to cite the employer in this case, they should pass a standard relating to crowd control in the retail industry.
This is the same thing as citing a construction company for someone plowing through cones on the interstate and killing one of their workers.
The General Duty Clause is abused and needs to be reeled in.
(a) Each employer —
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
April 1st, 2011 at 10:10 am
Agree with first Guest. This is the latest example of a government agency running amok with a vague standard. When they enacted the OSH Act, Congress directed OSHA to use it sparingly, and focus on enacting rules that clearly define what an employer is and is not supposed to do. But OSHA hates the time and expense of rulemaking, and instead shove the general duty clause down everyone’s throat.
OSHA is the next-to-worst government agency, right behind the SEC.
April 4th, 2011 at 11:38 am
I agree with AF. Walmart SHOULD pay the fine. There have been TV commercials showing employees bandaged up after being trampled after a sale. This is a vivid picture of what could happen, so Walmart and all other retailers should be aware that bodily injury could happen and provide crowd control. That’s just a common sense thing to do in my opinion, and that is what the General Duty Clause is all about, making the workplace free from recognized hazards.
April 4th, 2011 at 2:25 pm
Linda
Thank you!!!
April 5th, 2011 at 8:32 am
It’s another example IMO of abuse of the General Duty clause, and although not a big fan of WalMart, in this particular case I agree with fighting the fine, all the way to the Supreme Court if necessary, in order to set legal boundries by which OSHA can apply the GD clause.
April 5th, 2011 at 9:44 am
Coming from an ex-Big Box Executive, (not Wal-Mart), most upper management knows of the dangers that Black Friday brings. There have been fights and tramplings for years, yet, they continue to not have proper crowd control. Long before this horrible accident, there have been many recommendations from inside the retailers of how they should increase crowd control on Black Friday, primarily in locations that have a history of being overwhelmed with customers. Wal-Mart, in this case, did not use due diligence to keep their employee’s and the public safe, therefore should be held liable. The court ruled correctly and hopefully they will lose their appeal!
April 5th, 2011 at 11:40 am
Linda and MSafety
Thank you…….That standard is to make us all those that are involved with Safety Management to think and to use experience in identifying hazards to staff and others.
I also have seen the videos of and witnessed myself the “Black Friday” craziness…… it is frightening as well as dangerous to the store staff and to customers.
April 5th, 2011 at 11:53 am
Why is everyone agianst the employer having a sale which draws a large crowd-isn’t that what sales are suppose to do. If upper management was suppose to know about the danger wouldn’t you think the employee might of had a clue as well. The problem was the crowd that went crazy over a $100 TV.
April 5th, 2011 at 4:29 pm
With the “door buster” sales they have, they know very well what sort of message they’re sending: get here, do it fast, and get the one of the 3 we have on sale… NOW. You’ve got to consider that you’re not retail-giant management, but think like them for a second. These people have stats runners for EVERYTHING about consumers… they know more about the human mind and people’s buying habits than you know about yourself a lot of times. Mix that in with the fact that customers and employees have been getting hurt (and on the national news) for years before the unfortunate incident happened - you’ve got PERFECT justification for use of the GDC.
“a place of employment which are free from !!!recognized hazards!!! that are causing or are !!!likely to cause!!! death or serious physical harm…”
April 5th, 2011 at 4:48 pm
No one is against anyone……..Where I work the managers are expected to within reason identify conditions and situations where folk can get hurt.
I am 60 and for years I have seen the videos on the craziness of “Black Friday”. It does not take much to think of a situation where some extra training would prove to be at the least beneficial. For years there have been videos and stories on TV in the newspapers and all media about the danger of “Black Friday” poses to store personnel.
How much effort would it have been to meet with the staff the shift before “Black Friday” and go over safety procedures? Part of a stores safety procedure I am sure includes when to evacuate and when to call cops also what to do in an emergency.
Just reviewing safety makes folk more aware safety and more in tune with identifying hazards. I have been in stores when a really big sale is announced and I found the people shopping had an intensity that was frightening not to mention that manners were out the window.
In truth is a sale worth a person’s life and stores all know about the fervor that shoppers have on “Black Friday”. Just because there is no standard addressing that one issue does not let the store or the owner of a business off the hook.
There are complaints about “Big Government” yet here a defense could be there was no particular standard to address this incident therefore no one has any responsibility. The general duty clause is there to protect all of us in particular when there is an issue like this.
OSHA is there to protect workers not to kill businesses……….that seems to be a part most folk are missing. Businesses are manned by people and they need to be cared for so they can do their job.
April 6th, 2011 at 11:28 pm
The difference between crowd control problems and the random person driving through a construction site is that the first is predictable (highly predictable in this case) and the other is not, unless the road is well known for being dangerous (some parts of country roads in KY have been known for being the site of multiple fatal crashes every year). The general duty clause states that the workplace has to be free of recognized hazards that could likely cause serious physical harm or death. A lack of crowd control has been a recognized hazard for decades in retail stores and other settings. There is no reason to believe that Walmart could not have predicted the crowd being insane on a black friday where they have the best sales and could see the crowd gather outside from within the store. They should pay the fine and all the money OSHA has spent taking them to multiple levels of court for their ludicrous appeals.
May 31st, 2011 at 12:43 pm
I agree, Wal-Mart should be fined. This isn’t there first door-buster. They new what to expect since they have been doing these for years. There is no excuse for not taking the proper steps to ensure their employees where not put in danger. They were creative enough to start the door-buster, they should have been creative enough, especially after the first one, to mitigate potential hazards to their employees and their customers. Management had to recognize the potential hazard it was obvious. They simply chose to do nothing to prevent it. They should pay the fine, although this will not bring their employee back. Once again, prevention should be preferable to litigation at all times. Managers and VPs are paid big bucks to use their heads to benefit the company, that shouldn’t just mean how much money can we make and how fast. Sometimes it means eliminating potential lawsuits, fines and bad press by being pro-active. No one at OSHA or even their own safety people obviously said they had to take precautions at their door-busters, but that doesn’t remove their responsibility to act in a reasonably responsible manner when they created a situation where injury good more easily and would more likely happen as the door-busters grew in size. Just because you can doesn’t necessarily mean you should.