OSHA Cites Wal-Mart in Thanksgiving 2008 Trampling Death

Twenty days ago, the Nassau County, N.Y., DA announced a settlement that avoided criminal charges against Wal-Mart Stores Inc.

Twenty days after Nassau County, N.Y. District Attorney Kathleen Rice reached an agreement in which Wal-Mart Stores Inc. was spared criminal charges by agreeing to set up a $400,000 victims' compensation fund and improve post-Thanksgiving sale crowd control at its New York stores, OSHA has cited the company for an alleged serious violation in connection with the same incident -- the trampling death on Nov. 28, 2008, of an employee at a Valley Stream, N.Y., store. Jdimytai Damour, 34, of Jamaica, N.Y., was killed, and about 11 people sustained injuries, according to the DA's office.

OSHA's news release said the inspection was conducted by OSHA's Long Island Area Office in Westbury, N.Y., and concluded the store's employees were exposed to being crushed by the crowd because the store failed to implement reasonable and effective crowd management principles. About 2,000 shoppers surged into the store on Nov. 28, the Friday after Thanksgiving, searching for bargains. OSHA said the store should have given its employees training and tools to safely manage that crowd.

"This was an unusual situation, but not an unforeseen one," said Anthony Ciuffo, OSHA's acting area director for Long Island. "The store should have recognized, based on prior 'Blitz Friday' experiences, the need to implement effective crowd management to protect its employees."

The lone serious citation was issued under OSHA's general duty clause for exposing workers to the recognized hazard of being crushed by the crowd. The citation carries a proposed fine of $7,000, the maximum penalty amount for a serious violation allowed under the law.

"Effective planning and crowd management could have prevented this incident and its grave consequences," said Robert Kulick, OSHA's regional administrator in New York. "Wal-Mart must now take steps to ensure that a situation such as this one never happens again." The company has 15 business days from receipt of its citations and proposed penalties to comply, participate in an informal conference with the OSHA area director, or contest the citations before the Occupational Safety and Health Review Commission.

Besides the crown control improvements, Rice’s settlement will require Wal-Mart to create a $400,000 victims’ compensation and remuneration fund, donate $1.5 million dollars to the community, and provide 50 jobs annually to Nassau teens. She announced the settlement May 6 at a news conference with Hank Mullany, senior vice president and president of the Northeast Division of Wal-Mart U.S.

Wal-Mart did not admit guilt or wrongdoing in the settlement. "No prosecution could have achieved what we have been able to do with this agreement," Rice said May 6. "Rather than bringing the world's largest retailer to court and imposing a small fine against them, I felt it was important to require significant safety changes that will affect the whole state. We are able to get expedient compensation for these victims and also get jobs for our community and more than a million dollars in funding for crucial social service programs that will help our local economy and our youth. Our goal is for the protocols that are set up to be the gold standard for crowd-management in this industry. It is clear to me that Wal-Mart is committed to both learning from this tragic event and improving its efforts to make their New York stores even safer for their customers and associates in the future."

She said a criminal charge would have accomplished much less: The maximum criminal penalty for a corporation convicted of a felony is $10,000, while the maximum for a misdemeanor conviction is $5,000.

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