How Businesses Can Protect Against Black Friday Litigation

Black Friday can be a great day for both retailers and consumers but the crowds and hysteria surrounding the kick-off to the holiday shopping season lead to at least a handful of injuries every year.

In 2011, more than 20 people were injured at one Los Angeles area Wal-Mart, while in the San Francisco area, two people were shot in a Wal-Mart parking lot.

The question for businesses is who is liable in these injury cases and what should they be doing to avoid lawsuits?

Attorney Sandy Moran of Buchanan Ingersoll & Rooney law firm says that in cases where serious injury or even death occur a jury may find that the business failed to do sufficient planning to manage the dangers of large crowds.

“Obviously it depends on the situation, but a wrongful death claim could be made by the estate of the deceased. They could be faced with medical bills if it’s not a wrongful death. Loss of wages, disability, pain and suffering … it could add up, especially if the jury finds that the store failed to do anything in anticipation of large crowds,” she says.

Moran says there are ways in which businesses can plan to protect both employees and shoppers on high volume shopping days such as Black Friday.

She says businesses should first make a plan.

“Make sure that you have proper coverage by staff, extra staff for security, making sure that everybody is trained properly with respect to what to expect within the holiday season even your temp workers to make sure that everybody is trained, not just your permanent staff.”

She also says retail businesses must be cautious to have proper signage for exit doors. “Make sure that you have a plan for people coming in and out of the store safely, where you don’t have a mob of people. You communicate to the shoppers that this is how you’re going to proceed.”

Also, she advises that businesses give customers tickets for purchasing the hot-ticket items. This helps to reduce a possible stamped of people trying to buy the same item, she says.

Even with proper crowd control planning, a business may be faced with an injury on Black Friday. The best protection against a possible lawsuit is really just a good plan, she says.

“It’s really a good plan and showing that you’ve made every effort in order to protect employees and shoppers.”

If the injury happens in the parking lot or in a common area such as a sidewalk, the question of who is liable for the injury can be an issue, she says.

“It depends on who’s liable for maintaining the sidewalks. It could be the landlord or it could be the tenant. Most likely, in those cases, it’s probably the tenant,” she says. However, in some cases a management company may hold liability if the landlord hired someone to maintain sidewalks and parking lots, she says.

Regardless, most plaintiffs will sue “the big pockets first,” she says.

In response to the increased liability that some retailers face on Black Friday and other high-volume holiday shopping days, both OSHA and the National Retail Federation have set up crowd management guidelines to help businesses better prepare, she says.

The guidelines published by the NRF have been updated this year to include new trends such as large event crowds and criminal flash mobs.

Both guidelines are thorough and offer a good outline for how businesses can protect both employees and customers this Black Friday, she says.

Moran says she wouldn’t be surprised to see the guidelines used in court either.

“The OSHA guidelines, and also the National Retail Federation guidelines, they’re pretty complete,” she says. “I can imagine somebody pointing to that in the litigation, as the standard for what retailers should be doing.”

The NRF 2012 Effective Crowd Management guidelines can be found at: http://www.nrf.com/effectivecrowdmanagement/2012/#/0

The OSHA Fact Sheet on Crowd Management Safety Guidelines can be found at: http://www.osha.gov/OshDoc/data_General_Facts/Crowd_Control.html

Topics Lawsuits Workers' Compensation