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December 2, 2008

Wal-Mart Shoppers Sue For $2M

by Brad Warbiany

I guess this one comes from the “give me a friggin break” file:

Two customers are suing Wal-Mart for negligence after being injured in a mad rush for post-Thanksgiving bargains that left one store employee dead, the men’s attorney said Tuesday.

Temporary Wal-Mart worker Jdimytai Damour, 34, was crushed to death as he and other employees attempted to unlock the doors of a store on Long Island at 5 a.m. Friday.

Attorney Kenneth Mollins said Fritz Mesadieu and Jonathan Mesadieu were “literally carried from their position outside the store” and are now “suffering from pain in their neck and their back from being caught in that surge of people” that rushed into the Wal-Mart.

New York Newsday reported that the Mesadieus are father and son, ages 51 and 19.

The lawsuit alleges that the Mesadieus’ injuries were a result of “carelessness, recklessness, negligence.”

In a claim against the Nassau County police department, the men also contend that they “sustained monetary losses as a result of health care and legal expenses … in the sum of $2 million.

“This is a tragic situation that could have and should have been avoided with the exercise of reasonable care. There are very simple measures that could have been put in place to avoid this, such as barriers along the line to spread people out, extra security and a better police presence,” Mollins said.

I’d like to see some receipts for that $2M in healthcare and legal expenses. Was that out-of-pocket? Because I can’t imagine two Wal-Mart shoppers being able to come up with that kind of cash. And it’s somewhat convenient that both shoppers (who happen to be father/son) have “pain in their neck and back”, which I doubt is possible to appear on any x-ray.

Now, I can’t definitively state that this is a fraudulent lawsuit. But let’s just say I’m not exactly surprised. A little media blitz and I’m sure they’ll get the quiet payoff they desire.

Father & son? Some family values, huh?


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11 Comments

  1. This is a complaint, not a jury award. I’m guessing the $2 million figure is pretty much a figure picked out of a hat. In my (admittedly limited) experience, complaints in personal injury lawsuits usually begin with a significant over-estimation of damages, especially if they include a claim for legal fees (which they won’t get in a negligence suit….but that’s another issue) which are unaccrued. The issue isn’t really whether their damages claim is overly high; it’s whether they have legally redressable claims, and it’s certainly possible that they do, considering the circumstances. I’m also curious as to what is contained in the ellipses (e.g., are there claims for punitive damages or treble damages?).

    In all likelihood, what they’ll get is whatever expenses they can document in discovery, at least with respect to Wal-Mart. Knowing the results of what happened at this Wal-Mart.

    Finally, note that the $2 million is in a claim against the Nassau Police Department, not Wal-Mart; it’s possible that there are other issues involved in that claim, especially since the article is otherwise focused primarily on the negligence claim against Wal-Mart.

    Comment by Mark — December 2, 2008 @ 8:20 pm
  2. Mark,

    I know they inflate claims of damages… Like the lawyer who sued a dry cleaners for $54M over some lost pants…

    My initial thought is that these guys aren’t really injured. That’s just a hunch. My opinion on the merits (bearing in mind that I have few facts) is that even if they are hurt, it’s largely because of the idiotic shoppers that morning, not because of negligence on the part of Wal-Mart and the cops. There’s only so much that the store or the cops can do.

    I think of it like a concert. The venue can spend as much as they want on security, but when those concertgoers all start cramming towards the stage, sometimes people get hurt. It’s sad, but it’s more an unfortunate circumstance than an actionable legal claim…

    Comment by Brad Warbiany — December 2, 2008 @ 9:04 pm
  3. I find Fritz Mesadieu and Jonathan Mesadieu and their opportunistic draw from the legal lottery to be a large pain in the neck for me. Sadly, I have no X-rays available.

    I wonder how much of their fancied $2 million I could get from them.

    Comment by Akston — December 2, 2008 @ 9:26 pm
  4. I’m not so sure about that. Negligence is not so simplistic, since it relies on the concept that one who enters a property is owed certain duties of care by the property owner. If the property owner (Wal-Mart) reasonably should have anticipated a mob scene and failed to take reasonable measures to mitigate that, then you pretty much have negligence.

    The thing about negligence law is that it’s largely what would govern much of society in a libertopia since it’s focused on figuring out, on a case-by-case basis, who is to blame (and in what proportion) for a given set of injuries.

    In the example you cite (injured concertgoers), the likelihood is that the property owner would be found liable under a negligence theory if there was anything he reasonably could have done to prevent the injuries (assuming they were foreseeable). In an extreme example, let’s say that the property owner lined the stage with razor sharp spikes to keep concertgoers away from the performers; when the people in the front get pushed by the mob into those spikes and killed or maimed, any court in the country would find the property owner liable for negligence of some sort.

    Comment by Mark — December 2, 2008 @ 9:36 pm
  5. There’s a long but interesting thread on Reason’s Hit and Run on the subject.

    There are several good points being made:
    1) Walmart attracted the crowd by making offers of early bird specials. The purpose of attracting the crowd was to generate free publicity by creating a newsworthy event.

    2) The Nasau police apparently inspected the crowd and approved of the local Walmart’s crowd control procedures. Some commenters argued that if the police (who are formally trained on crowd control) couldn’t tell that things were about to spiral out of control, one could hardly blame the store management for their miscalculations.

    3) The crowd rioted. People in the back chanted “Break It Down” to the people in front. The door’s locks gave way under the press of the bodies. Thus the crowd essentially broke into the store and killed a security guard.

    There’s lots of blame to go around in this matter. One can hardly hold individuals in the crowd responsible: the people in the front argue that they were pushed by people behind them. There is no way of telling who were the active pushers, and who were being pushed along. Why should Walmart be held responsible for the misbehavior of guests that Walmart had invited onto its land? Should we blame the company management for trying to create newsworthy events to drum up free publicity?

    Comment by tarran — December 2, 2008 @ 10:30 pm
  6. Suing the police because shoppers rushed a door to a private business, and you were one of those shoppers and got hurt. So where do personal responsibility get taken into account? How many places did this happen to all across america, and no one got injured/killed? They are just jumping on the dead guy’s bandwagon, and thats shameful.

    If they get any money, then America is screwed.

    Comment by Mark — December 2, 2008 @ 11:50 pm
  7. PS the reason why they think do this is they border NYC, and in NYC people sue the police for anything, and make stuff up just because they know the city will settle without even going to trial. Look it up, NYC pays out like $600million a year to lawsuits, how many do you think are actually legit, and how many do you think are just greedy people taking advantage of a stupid system?

    Comment by Mark — December 2, 2008 @ 11:56 pm
  8. Mark, they are likely suing the police because Walmart had consulted with the Nasau police who had deemed Walmart’s crowd control efforts to be sufficient.

    If I were a Walmart lawyer, and my company were being sued by these guys, I would put the policemen who had visited the store a few hours before the attack and have them read their report into the record.

    Since the police are supposed to be experts on crowd control, and since the police had approved of Walmarts measures, if one once to accuse people of negligence in the crowd control efforts, one must sue the police.

    Incidentally,if these guys do get money (and they probably will get something) it will nto be the end of the world. It will merely mean that the NY court system is behaving the way the Alabama court system has been for decades. America has survived the myriad of frivolous lawsuits filed in Alabama for decades, and it will survive a similar flood in NY.

    Comment by tarran — December 3, 2008 @ 5:58 am
  9. Obviously, the unlinked “Mark” comments are a different Mark from me.

    In any event, if these two were actually injured and were Wal-Mart employees, there’s nothing frivolous about the lawsuit, whether or not they will win. Thus far, it seems like everyone is assuming they were not actually injured, but the fact is that no one has any evidence one way or another to draw that conclusion. At most, this is a situation where no one is to blame; assuming these two actually were injured, I don’t see how you could say that they assumed the risk of being trampled when they agreed to work for Wal-Mart.

    Also, in answer to your question: “Why should Walmart be held responsible for the misbehavior of guests that Walmart had invited onto its land? Should we blame the company management for trying to create newsworthy events to drum up free publicity?” The answer is pretty simple – Wal-Mart invited the wrongdoers onto its land, while also inviting the injured persons onto its land. If, when they did so, it was reasonably foreseeable that this would result in a mob scene where people could get hurt, then Wal-Mart was at least partly responsible for the injuries. Figuring out the exact degree of culpability is not the concern of the injured parties (assuming they did not assume any risks or engage in contributory negligence); what is important is that you have an innocent injured party and an at least marginally culpable party with deep pockets; thus, as between the two, the appropriate result is to shift the costs as much as possible onto the culpable party.

    This is not to say that the lawsuit is necessarily meritorious – only that on its face, there is nothing frivolous about it. As the case moves forward, that may change (I’m guessing the police department will get dismissed pretty quickly, though, under sovereign immunity principles – but I’d have to read the complaint to be sure).

    Comment by Mark — December 3, 2008 @ 7:55 am
  10. I’ve got to agree with “linked” Mark on this one.

    I don’t know New York law, but in Virginia it’s fairly clear that the facts of the incident in question would give rise to a legal claim. Whether that claim could ultimately be proven in Court is an entirely different question, but incidents like these are exactly what Wal-Mart has insurance for.

    Personally, as a libertarian, I prefer a civil law system that permits people to use the Courts to vindicate their rights and compensate them for injuries.

    Comment by Doug Mataconis — December 3, 2008 @ 3:26 pm
  11. Brad, I was thinking the same thing when you brought up the concert scenario. I just at one monday night in down town Denver to see Five Finger Death Punch. Wonder if I could sue them and the Fillmore Auditorium because I was getting pushed around at the front and got my foot stepped on because of people deciding to mosh in front of me??? **dripping with sarcasm**

    I’m guessing this father/son team were part of the crowd that was rushing to get in and they didn’t get their “rolled back” price they went there for and are now trying to jump in on this tragedy.

    It’s like the stupid woman at another Wal-Mart that claimed she was injured by the rushing crowd but didn’t file a complaint until AFTER she was done with her shopping. Case of delayed reaction? I don’t think so.

    Comment by Aimee — December 3, 2008 @ 4:24 pm

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