You Better Watch Out: Holiday Shopping Season is Underway

You Better Watch Out: Holiday Shopping Season is Underway

Posted November 25th, 2016 by Anthony Carbone, PC.

Categories: Premises Liability.

By the time you read this, chances are you’ve already finished all your Black Friday shopping. The Friday after Thanksgiving is the unofficial kickoff to the holiday season where many people camp out the night before (or head to the store after eating Thanksgiving dinner) to get the best deals. We all have seen and heard the horror stories related to this day — but what happens if Black Friday shopping results in a serious injury?

According to the National Retail Federation, 137.4 million Americans are expected to be shopping this weekend, a number that has increased from 135.8 million last year. With all these crowds comes frustration and anger. Just take a look at today’s headlines — one person was killed and another injured after a shooting in the parking lot of at Hamilton Mall in New Jersey early this morning. Whether it’s related to shopping remains to be seen.

So what does happen if you get injured during Black Friday? According to premises liability, it is the responsibility of the store to not only make sure there are no hazards that would cause an injury to customers, but it has the responsibility to keep the shoppers under control. In fact, OSHA has issued crowd control guidelines for all stores to follow, which include:

• Setting up barricades or rope lines to handle crowd management
• Preparing the staff for the opening of the store
• Staffing entrances with uniformed guards, police or other authorized personnel
• Locating sale items in different parts of the store to prevent overcrowding
• Provide crowd and entry management measures at all entrances

So if a store fails to provide the proper security and crowd management and you get injured, you can sue the store and its owners for damages. Since the store failed to prevent hazardous conditions (which, in this case, is conditions that had caused pandemonium), and in fact contributed to your injury by not providing the proper safety measures, they are responsible for your injuries.

Be safe if you’re planning on going shopping this weekend. And if you do have an injury while at a store as a result of negligent safety measures, you’re going to need legal help. Contact the Law Offices of Anthony Carbone today for a free consultation.

What Premises Liability Actually Requires of Retailers

The term “premises liability” gets used frequently in the context of retail injuries, but it is worth understanding what it actually demands from a store, both under general negligence principles and under the specific framework that New Jersey courts apply.

Every person who enters a retail store is classified as a business invitee. That is the highest category of visitor under premises liability law, and it carries the highest corresponding duty of care from the property owner. A retailer that opens its doors to the public for the purpose of generating revenue owes each customer an active duty to inspect the premises, identify hazards, and either correct them or provide adequate warning before someone gets hurt.

The word “active” is significant. Unlike the duty owed to a social guest at a private home, a retailer’s duty does not wait for a hazard to be reported. Courts in New Jersey have consistently held that businesses open to the public must undertake ongoing efforts to maintain safe conditions, particularly when the volume and behavior of customers creates foreseeable risks. Black Friday is exactly the kind of foreseeable risk that gives rise to heightened obligations.

Foreseeability is the legal concept at the center of these cases. A retailer that advertises deep discounts, promotes door-buster sales, and deliberately cultivates the expectation of limited-quantity merchandise knows, or should know, that it will attract large crowds whose behavior in the early morning hours of a sale event can become dangerous. That knowledge is what the law uses to hold the retailer to account when someone is injured as a result of that crowd. You cannot market scarcity and urgency to drive foot traffic and then disclaim responsibility when the urgency turns physical.

The OSHA Guidelines and What Happens When Retailers Ignore Them

The OSHA crowd management guidelines referenced above are not suggestions. While OSHA’s authority over retail establishments is sometimes debated, the guidelines themselves represent the federal government’s official articulation of what constitutes reasonable crowd management practice. In civil litigation, a plaintiff’s attorney can use a retailer’s failure to follow those guidelines as evidence that the store fell below the standard of care. It is not automatic liability, but it is a powerful tool.

The guidelines call for physical crowd management infrastructure including barricades and rope lines because uncontrolled entry by large numbers of people is inherently dangerous. A crowd pressing toward a single entrance point creates crush pressure that has killed and severely injured shoppers in incidents that have become part of the public record. The 2008 death of a Walmart employee in Long Island, New York, who was trampled when shoppers broke down the store’s doors, is the most widely known example. That incident prompted OSHA to formalize the guidelines that now exist.

Staffing entrances with security personnel matters because crowd behavior can change quickly. A uniformed presence at the entrance serves both a deterrent and a response function. Without it, minor jostling can escalate before any store employee even becomes aware of the situation, much less can intervene. A retailer that chose to save money by skimping on security staffing on the one day of the year when it is most critically needed faces serious questions about whether that cost-cutting decision constituted negligence.

The guideline requiring that sale items be located in different parts of the store to prevent overcrowding addresses a hazard that many shoppers have experienced directly. When a store places its most aggressively discounted merchandise in a single location, that location becomes a magnet for a crowd that grows denser and more agitated as the limited supply diminishes. Spreading merchandise strategically is a crowd management tool, and a retailer’s decision to consolidate sale inventory for operational convenience rather than distributing it for safety is a choice that courts can scrutinize.

The Types of Injuries That Happen During Holiday Shopping Events

The injuries that result from overcrowded retail conditions span a wide range of severity. At the less serious end are bruises, abrasions, and minor soft tissue injuries from jostling and pushing. At the more serious end are fractures, head injuries, and crush-related trauma that can require hospitalization and long-term rehabilitation.

Trampling injuries deserve particular attention because they produce a distinctive pattern of trauma. When a person is knocked to the ground in a moving crowd, the danger is not from the initial fall but from what follows. Multiple people stepping on a downed individual, or a crowd pressing so tightly that a person cannot regain their footing, can cause rib fractures, internal organ damage, spinal injury, and in the most severe cases, asphyxiation from chest compression. These are not theoretical risks. They are the documented outcomes of real incidents that have occurred at retail events in the United States.

Injuries related to physical altercations between shoppers present a different but related legal question. When two shoppers fight over merchandise, the store did not cause the fight directly. But if the store’s failure to maintain adequate staffing, security, and crowd control created the conditions in which that altercation was foreseeable and avoidable, the store may still bear legal responsibility for the injuries that result. New Jersey courts evaluate whether the harm was the kind that reasonable safety measures would have prevented, not merely whether the store was the direct physical cause.

Parking lot injuries are another category the original post touches on through the mention of the Hamilton Mall shooting. Parking lot security is part of the overall premises liability analysis. A property owner or mall operator who is aware of prior incidents of violence or theft in its parking areas and fails to implement reasonable security measures can face liability when a foreseeable crime results in a customer’s injury. The standard is not that the property owner must prevent all crime, but that it must take reasonable steps when the risk is known and the remedy is practical.

Slip and Fall Hazards That Multiply During the Holiday Season

Apart from crowd-related injuries, the holiday shopping season creates heightened slip and fall risks that exist independently of crowd management failures. The volume of foot traffic in and out of retail stores during this period means that floor surfaces near entrances become wet from rain, snow, and tracked-in moisture far more rapidly than on ordinary shopping days. Retailers who maintain normal cleaning and inspection schedules without accounting for the dramatically increased traffic may fall short of the standard of care.

Displays and merchandise that are quickly rearranged to accommodate sale inventory create trip hazards. Cords for temporary lighting or displays stretched across walking areas, boxes left in aisles by employees restocking shelves under time pressure, and temporary signage that obstructs sightlines all elevate the risk of a fall that might not have occurred on any other day of the year. The store’s liability for these conditions is analyzed through the same lens: did the store know or should it have known about the hazard, and did it take reasonable steps to address it?

What to Do If You Are Injured in a Store During the Holiday Season

The steps taken immediately after a retail injury have real consequences for any subsequent legal claim. Reporting the incident to store management before leaving the premises creates an official record that documents the time, location, and basic facts of what happened. Ask for a copy of the incident report. Stores are sometimes reluctant to provide it, but you are entitled to request it, and the request itself signals that you are aware of your rights.

If you are physically able, photograph the area where the injury occurred before anything is moved or cleaned up. The condition of the floor, the position of merchandise, the state of any barricades or crowd control equipment, and the density of the crowd visible in the background of those photographs are all potentially relevant evidence. Surveillance cameras in retail environments record continuously, but that footage is routinely overwritten within days if no one requests that it be preserved. An attorney can send a spoliation letter formally demanding that the footage be retained, a step that needs to happen quickly.

Seeking medical attention the same day serves both your health and your legal claim. Some injuries that feel minor immediately after an incident become significantly more apparent after the adrenaline of the moment fades. A contemporaneous medical record directly connecting your injuries to the incident at the store is evidence that becomes harder to dispute the sooner it is created.

Working with a New Jersey Personal Injury Attorney who handles premises liability cases allows the legal investigation to begin while the evidence is still fresh and while the retailer’s documentation of its crowd management planning is still available through discovery. What a store did or failed to do in preparation for a high-volume shopping event, including what security was hired, what training was provided, and what policies were in place, is information that an attorney can obtain through formal legal channels that are not available to someone pursuing the claim on their own.

New Jersey’s statute of limitations for personal injury claims is two years from the date of injury. That window sounds comfortable, but building a strong premises liability case requires investigation, expert analysis, and document collection that takes time. Starting the process early protects the ability to pursue full compensation for medical expenses, lost wages, pain and suffering, and any long-term impact the injury has on daily life.

Be safe if you’re planning on going shopping this weekend. And if you do have an injury while at a store as a result of negligent safety measures, you’re going to need legal help. Contact the Law Offices of Anthony Carbone today for a free consultation.

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