By Marc Tepper, Buchanan Ingersoll & Rooney
This year, large retailers across the nation are opening their doors even earlier to kick off the holiday shopping season. Will earlier openings alleviate some of the spectacular lines and massive crowds, or will they simply hasten them? More importantly, what liability issues do retailers face from Black Friday sales in general?
Insured retailers who offer big savings on Black Friday can save themselves big headaches by following some simple tips for avoiding premises liability.
Go to the following pages to read five simple tips you can share with your retailer clients to prevent Black Friday mishaps.
1. Monitor the aisles. Certain employees should be tasked with constant monitoring of store aisles during the height of the rowdy rush. Retailers are all too familiar with the “slip-and-fall” lawsuit, and their responsibility to keep their stores reasonably safe and free from known hazards, but on Black Friday, they should be extra vigilant for non-liquid spills in the aisles. Cardboard boxes ripped open by overeager shoppers and discarded on the floor pose liability problems if not promptly cleaned up. A recent California court decision suggests a slipping hazard left uncleaned for a mere 20 minutes could be long enough for the retailer to be liable for a customer’s injury.
2. Practice safe shopping. Plan ahead. Retailers should provide adequate and accurate signage that can easily be seen and understood by a wave of deal-hungry patrons. Store managers should practice “dry runs” with employees and consider a ticket system for entry, or staggered sales to alleviate a crush of consumers surging through the front door at the same time. For more guidance, OSHA provides Crowd Management Safety Guidelines for Retailers on its website.
Retailers must keep in mind that just because a customer behaves unpredictably and bizarrely--such as the Black Friday shopper who pepper-sprayed 20 people last year over video games--the retailer may still be liable to the injured parties. More plaintiffs are successfully arguing that the manner in which retailers design their sales offers, such as having coupons drop on customers from the ceiling, or by offering extremely limited quantity deals (“only five copies of Medal of Honor!”), foment disorder and encourage outrageous behavior. In other words, a retailer could face significant exposure if they knew or should have known that people could be hurt in a store’s intentionally chaotic shopping environment.
3. Don’t forget employee safety. Having adequate security in place before opening the doors doesn’t just protect a retailer’s customers, it protects its employees as well. It was only 4 years ago that a Walmart employee was trampled to death by a stampede of frenzied bargain-hunters streaming through the front door at 5 a.m. on Black Friday. Walmart not only faced civil liability for its employee’s tragic death, but the Dept. of Labor charged Walmart with OSHA violations. Effective crowd control plans can reduce the risk of injury to the retailer’s employees, and consequently, reduce the risk of liability for the retailer.
4. Hire professional security. When throngs of shoppers lay siege to a store and battle for a limited supply of low-priced merchandise, store security provided by a cashier or a clerk simply will not due. Retailers should hire professional security guards with crowd control experience who can manage any potential physical altercations in the store, and who can coordinate with the proper authorities in case of a fire or medical emergency.
5. Think outside the store. Liability begins before customers even squeeze through the front door. Retailers who participate in Black Friday price-slashing should prepare the exterior of their store for the onslaught of patrons. In many commercial settings, liability for sidewalk injuries may extend to both the retailer/tenant and the property owner/landlord. Regardless of who may ultimately bear responsibility, retailers would be wise to arrange for clean streets and sidewalks, and adequate lighting for crowds who may gather in the dark early morning hours. In some parts of the country, Black Friday weather conditions could mean snow and ice-covered sidewalks and parking lots. Are people standing for hours outside the store under eaves where snow or ice could slide and cause injury? Are the paths from the parking lot to the door clear of obvious dangers? Do customers know where to wait until the sale begins?
If a situation occurs that may give rise to a claim, be sure to have the incident inspected and a claim form completed. In the event witnesses are present, be sure to obtain their contact information and, above all, be sure to notify your insurance carrier and insurance broker of any actual or threatened claims.