Personal Injury - Wal-Mart Trampling

When a worker was trampled at a Valley Stream Wal-Mart on "black Friday" this year, it was national news, and big news on Long Island.  (See Newsday, here, New York Personal Injury Law Blog, here, the LA Times, here).  When the story broke, (like many other attorneys I'm sure), I promptly received questions from friends and family asking my opinion.  My initial thought was that the worker would be limited to worker's compensation but, apparently, the worker was a temp rather than a Wal-Mart employee, so worker's compensation is probably not an issue.

Proving a case for negligent crowd control or negligent security is difficult, but not insurmountable.  Historically, persons injured on a premises have fallen into one of three categories: invitee, licensee, or trespasser.  An invitee is someone who is lured onto a premises for the purpose of profiting the owner, and is owed the highest duty of care.  Some states still recognize this distinction, but New York doesn't.  The distinction was abolished in 1976 -- See Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55 (1976) -- in favor of a rule of "reasonable care under the circumstances."  A person in control of property in New York must exercise reasonable care to prevent foreseeable injuries caused by dangers of which he has or should have knowledge.  

Over the past thirty years, the issue of what is foreseeable and what dangers the person responsible for a property knows of or should know of has been litigated over and over again, and bodies of case law have developed addressing similiar factual scenarios.  Transient dangers (also called defects), such as ice or grocery store/restaurant spillage, for example, must have existed for a sufficient length of time to have been discovered upon reasonable inquiry.  

In many cases, the "defect" or "danger" in a property consists in the actions of third parties.  These cases are still considered under the broad umbrella of premises liability, but each have unique rules.  Apartment buildings and parking garages, for example, can be held liable for the criminal activity of tresspassers where they have reason to know of a recurrent problem and fail to provide adequate security.  

Crowd control, similarly, has its own body of case law.  Where an entity knows that a crowd will be present on the property it controls, they have a duty to provide appropriate crowd control.  Notice of a crowd is easy, but proving that crowd control was inadequate can be difficult.  “Where a plaintiff's negligence claim is premised on the theory that his or her injuries were caused by overcrowding and inadequate crowd control, the plaintiff must establish that he was unable to find a place of safety or that his free movement was restricted due to the alleged overcrowding conditions" Palmieri v. Ringling Bros. & Barnum & Bailey Combined Shows, 237 A.D.2d 589, 589, 655 N.Y.S.2d 646, 467 (2d Dept. 1997).  Phrased another way, adequate crowd control permits freedom of movement and provides a place of safety for those who wish to escape the crowd. “The defense that plaintiff's injuries were sustained as the result of an intervening agent is unpersuasive because the danger presented by a large crowd is a matter of common experience, and foreseeable intervening misconduct will not serve to supersede liability.” Ciancio v. Woodlawn Cemetery Ass'n, 249 A.D.2d 86, 87, 671 N.Y.S.2d 466, 468 (1st Dept. 1998).

The limited duty to provide crowd control is premised on a general knowledge that crowds can be dangerous, but more specific knowledge (or a special relationship to either the victim or the assailant) creates a more specific duty. Courts will examine the relationship between the parties, the “nature and duration of the unruly behavior… knowledge thereof and… failure to supervise.” Williams v. Skate Key, Inc., 240 A.D.2d 277 (1st Dept. 1997)(skating rink liable for injury caused by unruly ice skaters who were part of a special group that the rink failed to segregate from the other skaters).  See also Wilson v. Leisure Time Rec., Inc., 192 Misc. 2d 553, 558 (N.Y. Civ. Ct., 2002)(a bowling alley that catered to children and knew they frequently ran around had a duty to supervise children who were running so as to prevent injury to other patrons).  

In the Wal-Mart situation, there seems to be two viable theories of liability.  First, the store failed to provide adequate crowd control, which will depend on whether the worker was restricted in his movement and whether he had a place of safety.  Second, based on reports that the crowd broke into the store before it was officially open, the worker's family can argue that the crowd consisted of criminal tresspassers and adequate security was not provided to protect those in the store.  This second theory would be plausable if the store had reason to know that its door locks would not hold and there would have been additional security when the doors finally officially opened.