It was almost exactly one year ago on Nov. 28, 2008, when, in a horrifying moment, a Wal-Mart worker was trampled to death and customers injured on the Friday after Thanksgiving. This occurred after a crowd of approximately 2,000 shoppers burst through the front doors of a Wal-Mart store in Valley Stream in a race for a limited supply of advertised sale items. Investigations that followed made it clear that there was inadequate crowd management. This holiday season is an appropriate time to analyze the duty of care of those in control of the sites of mass gatherings to protect participants from the foreseeable dangers of overexcited crowds and acts of violence in those settings.
A property owner has the duty to use reasonable care to prevent harm to those persons on its premises when it has the opportunity to control the conduct giving rise to injury and is reasonably aware of the need to do so. In assessing whether this responsibility has been breached, it must be shown that the conduct that caused the injury was foreseeable. A frequent defense is the contention that the proximate cause of the occurrence was an unforeseeable intervening act, a superseding cause of harm which exonerates the owner from liability. These types of cases may raise issues that are specific to injuries sustained in large gatherings. An intriguing element is the degree to which the tension or “heightened atmosphere” created by an excited crowd may inflate the “foreseeability” of a violent act fomented by this agitated environment.
