$1 MILLION FIGHT ON PRINCIPLE NOW OVER…

Reading the news today concerning Jdimytai Damour reminded me that there are literally hundreds of stories here at The Writing On The Wal that have not been adequately followed. Damour's story began back in November, 2008 when we reported his trampling death in a Black Friday rush. More than six years, and $1 million in legal fees later, Walmart has agreed to pay the original $7,000 OSHA fine.
Back in 2008, a worker named Jdimytai Damour died beneath a crowd of shoppers who poured through the doors of a Long Island Walmart on Black Friday. The tragedy made national news and prompted an investigation by the Occupational Safety and Health Administration. OSHA ultimately faulted Walmart for Damour's death, arguing that the company had failed to provide him with a safe workplace. The agency fined the world's largest retailer $7,000, the maximum amount it could levy for a serious violation. As The Huffington Post reported in November, Walmart has been fighting the relatively tiny fine on appeal ever since. That fight is now over.
Why did Walmart spend all that money, shareholders are certain to ask? Principle, according to a spokesperson.
For Walmart, which had sales of $482 billion in fiscal year 2015, the appeal was never about the money. The company has spent more than $1 million in legal fees just fighting the $7,000 fine, The New York Times reported. Instead, the appeal was about principle. OSHA used what’s known as the general duty clause to fault Walmart for the death. According to the clause, employers have a general responsibility to provide a workplace that’s "free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees." OSHA basically said that Walmart should have foreseen what could go wrong with a Black Friday crowd, and an administrative law judge agreed. Because it's not very specific, OSHA doesn't often hang its citations on the general duty clause; employers like to say that it's not a strong enough foundation for an argument that finds them at fault. In fighting the fine, Walmart argued that the circumstances of Damour's death never could have been predicted.
No one who has ever been in a sale crush, as I was back on Christmas Eve of 1972, would listen to Walmart's statement with a straight face. I've seen the glazed-eyes look of bargain frenzied shoppers. The sight is not pretty. The real question now is how will this affect Black Friday in 2015? [22 March @ 0753] As Someone correctly notes below, Walmart did institute a number of changes following the tragic death of Jdimytai Damour. That an employee's death (or any death) was necessary for the easily foreseeable changes to be made real only deepens the tragedy. Jeff Hess: Have Coffee Will Write.

15 Responses to “$1 MILLION FIGHT ON PRINCIPLE NOW OVER…”

  1. UncleBob says:

    So, it’s been seven years… remind me again… out of the hundreds of people who cared so little for a man’s life that they stepped on his body repeatedly until he died… how many of those people had any kind of charges brought against them?

    Going after Walmart is a smokescreen. They’re big and they have money, so let’s do it.

    Going after the people who actually took this man’s life? Naw. That doesn’t make headlines.

  2. Jeff Hess says:

    Bob,

    Good points. If security footage had been clear enough or if police had been summoned quickly enough then the county prosecutor would have been obligated to bring charges of at least negligent homicide or reckless endangerment. Sadly, none of that was true.

    What was clear, however, was that Walmart was aware of the dangers and failed to take reasonable steps to mitigate or prevent those dangers and as a result Jdimtai Damour lost his life. For that, Walmart was fined, and now will finally pay, $7,000.

    No criminal or civil action, to the best of my knowledge (but I am doing due diligence this morning and reviewing files from the past 6 years), was filed or adjudicated, that might have tapped Walmart’s deep pockets.

    Jeff

    • UncleBob says:

      You’d be surprised what law enforcement can do with grainy security footage. If they want to.

      Again, easier to go after the name on the front of the building than the feet that crushed the body.

      Pure laziness in investigation and execution.

    • Jeff Hess says:

      Bob,

      First, what the county prosecutor did in this case is completely divorced from any federal action; they have nothing at all to do with each other.

      Second, I’m unaware of any evidence that the police and district attorneys in this case did anything other than a credible, exemplary job. Can you point me to evidence that this was not the case?

      Jeff

      • UncleBob says:

        A man was trampled to death and not a single individual was charged for it.

        What more evidence do you need?

    • Jeff Hess says:

      Bob,

      Sadly, even the finest of police forces do not have perfect arrest and conviction rates. Crimes are investigated and do fail to name perpetrators every year.

      I don’t think you’re playing fair, particularly in light of police actions in the past 12 months in New York, Ferguson and Cleveland, to excuse the police in this case of laziness or malpractice for failing to arrest any of the shoppers.

      Jeff

      • UncleBob says:

        Perhaps you and the general population are the ones not “playing fair”.

        Maybe if Jdimytai Damour had a more “American” name a better investigation would have been initiated? Maybe if he had been a cute, white, blonde girl instead, there would have been charges filed?

        The general population ignores those who stepped on this guy until he died. Ignores the lack of any kind of action taken against those who did it. Instead, focuses on the name of the building when it occurred and gives everyone else a free pass. It’s disgusting.

    • Jeff Hess says:

      Bob,

      We’re dealing with two different jurisdictions and crimes, neither of which affects the other.

      In the first case we have the murder of an individual that is is dealt with at the local level by the District Attorney.

      In the second case we have a violation of federal labor law that contributed to the death of that same individual.

      OSHA has no jurisdiction to be bring Damour’s killers to justice and the District Attorney has no jurisdiction to fine Walmart for failure to correctly follow federal workplace safety laws.

      I think that finding Damour’s actual killers would have been very much in Walmart’s interest. I can’t imagine that they did not pour over and over those tapes, using technology that the local police did not have, in the hope of turning evidence against the real killer over to the police. To the best of my knowledge, that did not happen.

      Jeff

      • UncleBob says:

        Wait, you bring up “New York, Ferguson and Cleveland”, then try to throw out the differences in jurisdictions?

        And now you’re wanting a private corporation to complete their own investigation into murder? Isn’t that what we pay taxes for?

        I recognize that OSHA doesn’t have the authority to go after those who actually killed the individual involved – but the fact that ABSOLUTELY no body did, meanwhile, you’ve got this case CONSTANTLY coming up as to why Walmart did wrong (not to mention the private lawsuit against Walmart by Mr. Damour’s family), while no one seems to know/care anything about those responsible aside from the name on the side of the building… I think that says a lot.

        Again, Walmart is the easy, lazy target. Everyone gets to blame them, call it a day, then go to sleep pretending they did something good in the world. Meanwhile, those who are actually responsible for killing a man? Meh. Too hard.

    • Jeff Hess says:

      Bob,

      I mention New York, Ferguson and Cleveland because this case is the polar opposite of those matters since the police, and the DA, would have no reason not to vigorously pursue prosecution if there was any, no matter how weak, evidence to be had.

      No, I don’t want Walmart to conduct the investigation, the police already did that, I’m merely pointing out that if there was any evidence able to point to an arrest suspect, Walmart, with a lot more resources than the local police in this matter, would have found damning footage. That they did not do so, strongly suggests that there was nothing to find.

      I confess that you appearing to treat the case in question as a tort matter, rather than a regulatory matter, puzzles me. The $7,000 fine is the equivalent of a corporate traffic ticket.

      Yes, I recognize that Walmart needed to fight since any absence of opposition, any admission of seeming guilt, opens the door to the civil case sure to follow.

      That is, however, a separate matter subject to civil, and not regulatory, law.

      Jeff

      • UncleBob says:

        The reason there was no attempt to pursue charges is because it would have required too much work and the public at large put no pressure on them to do so. Could you imagine if the amount of people up in arms over Ferguson and Co. had put the same amount of effort into getting attention on this man’s killers as they did in the other cases? Did you write one single column asking for officials in the area to look into the case among all of the anti-Walmart articles you’ve written on the situation?

        Do you think the Department of Justice would have looked into Wilson/Ferguson if the public hadn’t been rioting in the streets?

        Do you think the FBI & Co would have taken the surveillance video to their labs with more resources than even Walmart and aided with the investigation if the public had been rioting in the streets?

        Let me ask you this: Without looking (and going by the honor system, because I honestly wouldn’t be able to tell if you looked – but I do trust that you’ll be honest), can you answer five questions for me?

        1.) What was the name of the individual that was hit by a semi-truck and part of a big health insurance reform debate back in 2007-2008, including many articles on this very site?

        2.) What was the name of that person’s employer/insurer?

        3.) What was the name of the individual driving the truck that hit that person?

        4.) What was the name of the company that owned the truck that hit the person?

        5.) What was the name of the lawyer who took 40% of that person’s settlement money before that person’s employer got involved?

    • Jeff Hess says:

      Bob,

      Are you talking about the Tracy Morgan case?

      Were the police and prosecutors in the Jdimytai Damour case lazy? Maybe, but I don’t think so. I simply don’t think they could make enough sense out of the chaos to identify the killers.

      Federal authorities, however, could identify the clear violations of federal regulations that directly contributed to Damour’s death.

      I still don’t understand why you seem to think that a regulatory matter at the federal level has any relevance in a local criminal matter.

      Jeff

      • UncleBob says:

        Tracy Morgan

        Nope—that was 2014, not 2007-8. Although it’s interesting that Walmart settled for $10m vs. the amount that was settled for in the case I’m speaking of.

  3. Someone in USA says:

    This has already impacted the way Walmart and others handle their Black Friday events, with the queues and tickets for the popular items.

    • Jeff Hess says:

      Someone,

      That’s true, you’re absolutely correct.

      That an employee’s death was necessary to institute these changes, however, is the problem.

      As I said to Bob, as someone who experience the frenzy of a shopping mob back in the early ’70s, I know that the phenomenon was known and understood by retail management long before Jdimytai Damour’s tragic death.

      The safety record since, post changes, will forever be a condemnation of those who knew and looked away.

      Jeff

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