It has now been one week since the sad death of Walmart worker Jdimytai Damour, and of course, this being New York, the lawsuits are already flying. One attorney has filed a lawsuit for the family against Walmart in the Bronx (where else!) claiming Walmart was "careless, reckless and negligent". In my opinion, the direct lawsuit against Walmart for negligence will be dismissed promptly.
Mr. Damour’s family cannot sue Walmart directly due to the "exclusive remedy" provisions of the Workers’ Compensation Law. Filing a negligence lawsuit directly against Walmart probably had more to do with the attorney getting his name in the news than actually holding Walmart responsible. And some question why lawyers have a bad image?
Based upon the reported facts, Mr. Damour worked for a temporary staffing firm called Labor Ready. Walmart contracted with Labor Ready for temporary workers to fill holiday staffing needs. In this case, the legal concept of a "General/Special" employer-employee relationship would come into play. If Walmart exerted "direction and control" over Mr. Damour (ie, "go unlock the doors and let the lions in"), then Walmart is considered a "Special Employer" even if Mr. Damour got his paycheck from Labor Ready.
Once Walmart is deemed a "Special Employer", it is protected from any direct lawsuit for negligence by the exclusive remedy provisions of the NY Workers’ Compensation Law. Without any fanfare, Walmart will quickly move to dismiss the lawsuit based upon the defense that workers’ comp is the exclusive remedy. As I said in a prior post, the Damour family will get a measly one time $50,000 payment to his estate (plus a $6,000 expense) for the life of their loved one under the workers’ compensation law, and they probably don’t need an attorney.
Workers’ Comp Central has been quoting me in their articles this week regarding the tragedy. Here are a few excerpts from those articles for those of you without a subscription:
A top officer of the New York Workers’ Compensation Alliance is calling for a criminal investigation by state Attorney General Andrew Cuomo into the death of a temporary worker trampled in the rush for bargains at a Long Island Walmart Store before sunrise last Friday.
Troy Rosasco, co-chairman of the workers’ advocates group, said Monday the world’s largest retailer is shielded from a lawsuit in the death of 34-year-old Jdimytai Damour because of New York state’s exclusive remedy law.
"He had never worked for Wal-Mart before. This was like sending a guy into the (Roman) Coliseum and telling him to unchain the door and let the lions in," Rosasco said. "What happened was foreseeable. They created a danger when they called it a blitz sale. A blitz is defined by Merriam Webster as a sudden attack."
Walmart may be sued by the mall or security company for contribution, but it cannot be sued by the Damour family itself. They only have a workers’ compensation death benefits claim against Walmart. This is another reason NY Attorney General Andrew Cuomo should investigate this terrible tragedy brought on by Walmart’s greed.