Nassau County, N.Y., District Attorney Kathleen Rice’s investigation into a fatal trampling during an early morning after-Thanksgiving Day event at a Valley Stream, N.Y. Wal-Mart last year has resulted in what the DA’s office calls “a historic settlement with the world’s largest retailer.”
In exchange for agreeing not to prosecute Wal-Mart, the settlement will require Wal-Mart to implement an improved statewide crowd-management plan for post-Thanksgiving Day events at each of its 92 New York stores, set up a $400,000 victims’ compensation and remuneration fund, donate $1.5 million dollars to the community and provide 50 jobs annually to Nassau teens, according to a press release issued by the Nassau County DA’s office.
Rice announced the settlement at a press conference on May 6th, where she was joined by Hank Mullany, Senior Vice President and President of the Northeast Division of Wal-Mart U.S.
The November 28, 2008 incident at the Green Acres Mall Wal-Mart store resulted in the death of Jdimytai Damour, 34, of Jamaica. The DA’s investigation also identified approximately 11 people claiming physical injury as a result of the incident.
Rice said that the investigation conducted by prosecutors and investigators in her office and detectives from the Nassau County Police Department revealed several areas in which the global company could improve crowd-management safety planning during their post-Thanksgiving Day events. The agreement between the District Attorney and Wal-Mart does not include an admission of guilt or wrongdoing by the corporation.
“No prosecution could have achieved what we have been able to do with this agreement. Rather than bringing the world’s largest retailer to court and imposing a small fine against them, I felt it was important to require significant safety changes that will affect the whole state,” said Rice. “We are able to get expedient compensation for these victims and also get jobs for our community and more than a million dollars in funding for crucial social service programs that will help our local economy and our youth. Our goal is for the protocols that are set up to be the gold standard for crowd-management in this industry. It is clear to me that Wal-Mart is committed to both learning from this tragic event and improving its efforts to make their New York stores even safer for their customers and associates in the future," said Rice.
Safety and Planning OversightIn agreeing to the terms of the settlement, Wal-Mart’s safety plan for post-Thanksgiving Day events at its 92 New York stores will be subject to a review by two independent safety experts. Working with Walnmrt, the safety experts will evaluate and approve the crowd-management plans of each store. Wal-Mart will be responsible for complying with the recommendations of the experts. The independent safety experts have been chosen in a joint approval process by the DA’s Office and Wal-Mart. The agreement provides the DA’s Office with various tools to ensure compliance with or deal with possible breaches of this agreement, including the extension of the safety function to a fourth year and, in an extreme case, revocation of the agreement and resumption of the investigation.
“Most important to us is that a third-party team of safety experts are in place to review their plans. They are experts in the field who know how to keep people safe and that will be their lone objective,” said Rice. “We are hoping that this safety plan becomes the nationally recognized model for crowd-management among all retailers and becomes an industry-wide best practice.”
Remuneration & Compensation FundA condition of the DA’s settlement agreement requires Wal-Mart to establish a $100,000 remuneration fund administered by the District Attorney. The fund will be in place to repay claimants’ out-of-pocket losses as a result of the crowd-related incident at the Valley Stream Wal-Mart during the early morning hours of November 28, 2008. Out-of-pocket losses are expected to include claims for damaged or lost property, lost wages, or unreimbursed medical bills associated with injuries sustained during the incident.
In addition to the remuneration fund, Wal-Mart will establish a $300,000 compensation fund. The compensation fund will be administered by Wal-Mart. The fund will be responsible for financially compensating those injured as a result of the crowd-related incident at the Valley Stream Wal-Mart during the early morning hours of November 28, 2008. This type of compensation could be provided to individuals with documented injuries including pain and suffering as a result of the incident.
Claimants to either fund will be required to file a sworn affidavit attesting to and verifying that the claimant was present at Wal-Mart’s Valley Stream store during the 2008 post-Thanksgiving Day event between 2:30 a.m. and 6:00 a.m., the nature and extent of any out-of-pocket losses suffered as a result of events during the 2008 post-Thanksgiving Day event and the nature and extent of any injury suffered as a result. Claimants who receive compensation will be required to waive their right to a separate civil suit against Wal-Mart.
Wal-Mart has agreed to advertise the compensation fund in the daily and weekly newspapers covering Valley Stream and its surrounding neighborhoods.
Non-Prosecution AgreementAs a condition of the agreement, the Nassau County District Attorney’s Office has agreed to suspend its ongoing criminal investigation of the company’s 2008 post-Thanksgiving Day event. In the agreement, Wal-Mart has not admitted any wrongdoing.
During the next three years, a failure to comply with any of the elements outlined in the agreement could nullify the settlement and subject Wal-Mart to possible criminal charges connected to last year’s fatal incident at its Valley Stream store. The maximum criminal penalty for a corporation convicted of a felony is $10,000. That amount goes down to $5,000 for a corporation convicted of a misdemeanor charge.
“Although the Valley Stream store had a safety plan, things could have been done better on the day of the incident,” said Rice. “This agreement will ensure that real substantive change takes place in the planning and implementation stages for these events. An agreement like this is important to help make sure that something like this doesn’t happen again.”
In a prepared statement, Hank Mullany, senior vice president and president of the Northeast Division, Wal-Mart U.S., said: “We are saddened by the tragic event that occurred at our Valley Stream store last year. Our thoughts and prayers continue to be with Mr. Damour’s family, we have never had a tragedy like this in our stores, and we don’t want it to happen again. We are committed to learning from it and making our stores even safer for our customers and our associates.
“The crowd management plan we are announcing today was developed by a team of experts whose experience includes NFL Super Bowls, Olympic Games, concerts and national political conventions. Working closely with the district attorney of Nassau County, the team created a first-of-its-kind plan that incorporates proven crowd management techniques into the unique circumstances of a retail setting.
This plan is intended to supplement existing safety measures and will enhance the movement of our customers in and out of the store in an even safer and more efficient manner. It calls for specific procedures and operating protocols for three areas of customer activity, including customer approach and entry into the store; customer flow throughout the store and around promotional merchandise; and flow through the checkout aisles and away from the store.
“The New York plan is a significant step toward expanding safety measures at our stores during our post-Thanksgiving Day events. It will extend to all Wal-Mart stores in the state of New York. As we explore how we can make our stores even safer for our associates and customers, we will consider how aspects of this plan could apply to stores outside New York. We intend to complete this process in time for the 2009 holiday shopping season.”