Black Friday: Avoid Tort Liability for Christmas

BlackFridaySalesNothing expresses a season of thankfulness, love, and giving, like people waiting overnight in line to buy things. “Black Friday” videos of shoppers rushing into stores can look like the Normandy landing in a fight to the death for the best deal.

You almost expect people to pin letters home on their backs in case they do not survive, just like Union soldiers before Cold Harbor.

Corporate counsel at every major store probably have already issued litigation hold instructions to their records managers to save security video.

To not get me wrong, I love holiday shopping. The Stanford Shopping Center always has pretty decorations. Christmas in the Park in downtown San Jose is also fun. There is just no way on God’s Green Earth that I will go shopping on Black Friday.

nickel-60534_1280How long was “Black Friday” been around? The first case with the term “Black Friday” was in 1874.

The case did not pertain to holiday shopping, but a stock market crash where parties tried to corner the market in gold in 1869, “for purposes of speculation and plunder.” Cameron v Durkheim, 55 NY 425, 438-439 [1874].

A stockbroker who was alleged to have been part of the “Black Friday” conspiracy that caused the panic of 1869 sued on defamation over the accusation. Willard v. Sun Printing & Pub. Co., 106 F. 636, 636 (C.C.D.N.Y. 1901).

The first mention in a lawsuit that “Black Friday” was a major shopping event the day after Thanksgiving was not until 2001 during a deposition. Gray v Press Communications, LLC, 342 NJ Super 1, 5-6, 775 A2d 678, 681 [Super Ct App Div 2001].

Tort cases involving Black Friday have included injuries from stepping on a skateboard; claims of excessive force by police by someone attempting to get a shopping cart; and even trademark infringement between online retailers. Doyle v. Wal-Mart Stores, Inc., 2014 U.S. Dist. LEXIS 128624, 6-7 (N.D. Okla. Sept. 15, 2014); Bannan v. City of Philadelphia, 2012 U.S. Dist. LEXIS 16353, 10 (E.D. Pa. Feb. 9, 2012); Overstock.com, Inc. v. Nomorerack.com, Inc., 2014 U.S. Dist. LEXIS 89620, 2 (D. Utah June 30, 2014).

“Black Friday” has been around for decades with people going shopping. Personally, I prefer to celebrate the day after Thanksgiving by avoiding crowds.

However, if you must go shopping, or off to enjoy a movie to see the Star Wars The Force Awakens teaser trailer, be safe in parking lots, and remember the spirit of the holiday. Having up-to-date insurance and your lawyer’s number might also be handy.

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Josh Gilliland

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.