Sun Devil Sports & Entertainment Law Students Association & Journal

By denying Wal-Mart’s appeal of a $7,000 OSHA fine, the federal government recently made it clear that retailers must apply the same crowd management practices that live entertainment venues have used for years.

On November 28, 2008, the “Black Friday” crowd at a Long Island Wal-Mart had swelled to 2,000 eager customers.  By 4:00 AM, there was no space between the store’s doors and the crowd.  As the scheduled 5:00 AM opening neared, no police were present.  Wal-Mart had been down this road before.  Each of the three preceding years, the post-Thanksgiving crowd was so large that it pulled the doors out of their hinges.  Wal-Mart trained its employees to get out of the way of the onrushing crowd, and most of them did climb on top of vending machines as customers fell into the vestibule and the doors popped off their hinges yet again.  But one seasonal worker, Jdimytai Damour, was trampled to death, apparently trying to protect a pregnant woman who had fallen.  Wal-Mart quickly reached an agreement with the District Attorney to avoid criminal liability, but the U.S. Occupational Safety and Health Administration also opened an investigation.  OSHA found that Wal-Mart failed to provide a workplace “free from recognized hazards” and issued a $7,000 fine.

OSHA  officials acknowledged that its Wal-Mart investigation was the first time the agency sought to establish that an unruly crowd is an occupational hazard that can cause death or serious injury — and that employers must therefore develop plans to protect workers against such a hazard.  Wal-Mart spent a whopping $2 million to appeal.

On March 25, 2011, a judge denied Wal-Mart’s appeal of the $7,000 fine.

In response, the head of the Retail Industry Leaders Association complained, “What is officially defined as a dangerous crowd?  If you have a sale that’s going to take place for … a new piece of technology that’s going to be released, do you have to start putting into place crowd-management procedures if even the possibility of a crowd could emerge?” Respectfully, his protest sounds like the police officer’s famous line when he shuts down the casino in Casablanca, “I’m shocked, shocked, to find that gambling is going on in here!”

Public assembly facility managers have long known that wherever one invites a crowd onto the property, crowd management is required.  Now that the government has taken an interest in major retailers’ efforts to generate big crowds, one can hardly be surprised that retail establishments will be held to the same crowd management standards that stadiums and arenas have met for years.

In the wake of the Wal-Mart disaster, OSHA enacted regulations applying to retailers for the first time.  They require barricades to start away from store entrances, with breaks or turns to prevent pushing from the back.  They also require employees to be assigned to posts, and that police, fire, and hospitals be alerted when an event is likely to draw a crowd.  The new OSHA guidelines also suggest doing away with first-come, first-served events in favor of wristbands or tickets.

What is hard, or new, about any of this?  Live entertainment venues are already required by such standard works as the National Fire Protection Association’s Life Safety Code to consider the issues of time, space, information, and energy when planning crowd management.  They are also required to have trained crowd managers on post who are prepared to implement detailed life safety evaluations that are supposed to be prepared before special events.  Venues have always been obligated by basic principles of risk management and tort law to take reasonable steps to mitigate reasonably foreseeable risks.  If Southwest Airlines, the local deli counter, and even the Department of Motor Vehicles can find a way to bring people through a line in an orderly fashion, is it really asking too much of a retail giant like Wal-Mart?        SAA

Steven A. Adelman is the principal of Adelman Law Group, PLLC in Scottsdale, Arizona.  His practice focuses on safety and security issues in venues such as stadiums, arenas, performing arts centers, convention centers, and other public accommodations.  He can be reached at sadelman@adelmanlawgroup.com.  A version of this article was originally written for the Adelman on Venues newsletter.