Posted On: December 4, 2008, 5:04 pm CST

Posted By: Steven R. Sundheim, Esq.

A lot of the comments focus on how to argue a tort case against Walmart and that is not really hard to do - they have potential liability if a tort case is allowed for the foreseeable results of how they ran the crowd control - a crowd they created with their marketing and which was somewhat predictable; they are also supposed to have some foresight to what happens when a crowd suddenly is allowed in for a sale. My impression when I started this line of comments was that the employee was a Walmart employee; even if he was employed by a subcontractor, he may be a "borrowed servant" in which instance the workers' comp bar may stop a tort suit and make comp his sole remedy. I do also agree with earlier comments that the subcontractor would have likely agreed to hold Wal Mart harmless and indemnify it for any injuries "arising out of" the contractor's work and that Wal Mart may pass the loss to the subcontractor and/or its insurers in the first instance. The case is one that stirs people up and so a high (Bronx County) jury verdict if a tort case is allowed, would be a given. I expect Walmart will settle this once the current passions subside some and publicity is less - next summer would be a guess.