OSHA cites Wal-Mart in N.Y. worker's '08 crowd death

[May 27, 2009]  GARDEN CITY, N.Y. (AP) -- The death of a temporary employee who was crushed in a stampede of post-Thanksgiving shoppers at a Wal-Mart store could have been prevented, federal officials said Tuesday as they proposed fining the world's largest retailer $7,000 -- as much money as it makes in about 18 seconds.

The U.S. Department of Labor's Occupational Safety and Health Administration announced it was citing Wal-Mart Stores Inc. for inadequate crowd management following the Nov. 28, 2008, death of Jdimytai Damour at a Long Island store.

The 6-foot-5, 270-pound Damour had been on the job for about a week when a crowd estimated at 2,000 strong broke down the Valley Stream store's doors in search of pre-dawn bargains, trapping him in a vestibule. The 34-year-old Queens man died of asphyxiation. Eleven other people, including a pregnant woman, were injured.

"Effective planning and crowd management could have prevented this incident and its grave consequences," said Robert Kulick, OSHA's regional administrator in New York. The retailer has 15 days to respond to the allegations, which could lead to a fine of $7,000, Kulick said.

The fine is the maximum allowed, OSHA said. The agency said it issues such serious citations when "death or serious physical harm is likely to result from hazards about which the employer knew or should have known."

Daphne Moore, a spokeswoman for the retailer, based in Bentonville, Ark., said in a statement that Wal-Mart has "never had a tragedy like this occur in our stores and we never want it to happen again."

The company disagrees with the type of citations issued, she said.

"There is no OSHA or retail industry guidance that would have alerted us to this type of unforeseeable hazard," Moore said. "We expect to resolve this matter in a constructive manner that fosters the safety and well-being of our associates."

But a fine of a few thousand dollars will have no effect on the finances of a behemoth like Wal-Mart, which earned about $3 billion on $93.47 billion in revenues in the most recent quarter. Based on those figures, Wal-Mart makes about $23,000 a minute.

Nassau County District Attorney Kathleen Rice announced this month that she was ending a criminal investigation of the stampede after Wal-Mart agreed to pay nearly $2 million and improve safety at its 92 New York stores. The retailer also said it would consider safety improvements beyond New York.

Rice contended that had the company been found guilty of a crime, it would have been subject to a maximum fine of $10,000.

Instead, she said, the company agreed to improve crowd management at post-Thanksgiving Day sales, set up a $400,000 fund for victims and give $1.5 million to county social services programs and nonprofit groups.

Andrew Libo, an attorney representing Damour's family in a lawsuit against the retailer and county officials, called OSHA's citation "a step in the right direction with regard to holding irresponsible corporations accountable for their actions."

As he has done previously, he criticized Rice's decision to close the criminal case. Several other victims also have announced plans to sue Wal-Mart.

[Associated Press; By FRANK ELTMAN]

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