On the day after Thanksgiving, November 28, 2008, Walmart held a nationwide sale of a limited number of sharply
discounted televisions, computers, and video game sets. The "blitz sale" had been advertised heavily in newspapers and on television. At the Valley Stream Wal-Mart store in Long Island, New York, 2,000 shoppers lined up hours before the scheduled 6:00 a.m. store opening, forming a line at a place marked by a handwritten sign: Blitz Line Starts Here. The crowd became unruly at one point and the store manager called the police. However, the police left after concluding that things were under control. Shortly afterward, at 5:00 a.m., the crowd broke through the glass doors of the store in a stampede.
Jdimytai Damour, a Wal-Mart maintenance worker, was trampled by the crowd and died from asphyxiation. OSHA has imposed a $7,000 fine on Wal-Mart for its failure to take appropriate steps to control the crowd. Wal-Mart is fighting the fine because it maintains the stampede and the trampling were not foreseeable simply because Wal-Mart held a post-Thanksgiving day blitz sale. Walmart has argued that OSHA is asking it to predict events and that there were, at that time, no laws or rules on crowd control or so-called blitz sales (sales in which there are a limited number of items at a reduced price). Wal-Mart's lawyers argued, "If this was a foreseeable event, why did the police feel comfortable in leaving the scene?"
Wal-Mart has already entered into an agreement with the Nassau County, New York, district attorney to adopt crowd control policies at its 92 stores in New York, create a $400,000 fund to compensate trampling victims, and donate $1.5 million to various community organizations in Nassau County. Wal-Mart also implemented crowd-control policies at its stores nationwide.
Evaluate the duty, breach of duty, and foreseeability issues in the Long Island stampede. Be sure to discuss whether Wal-Mart breached any duty to the maintenance worker and why Wal-Mart would push back against the small fine.
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