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?
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.
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?