In Extremis: Krampus (2015) and Black Friday Lawsuits

Disclaimer: Attention children; have you been surveilled and harassed by a diminutive doll on your walls? Has an old man with a beard stolen your cookies and called you naughty? Has a 7-foot tall monster grabbed you and placed you in a sack? You may be entitled to compensation – please seek independent legal advice and read this article for important information.

Krampus may not be the reason for the season, but he is definitely everyone’s favourite Mr. Steal Your Girl (literally). With historic roots in 12th century Germany, Krampus has made a major resurgence in the 21st century as a lovable figure that suits our collective cynical nature as a monoculture. And what screams cynical monoculture more than the fights and stampedes on Black Friday?

Krampus (2015) begins with fistfights by a crowd of people at a big box store as two employees are grievously injured in the crowd’s gladiatorial Christmas spirit. Black Friday, the day after American Thanksgiving, is known as a day where violence often erupts at retail stores offering potential deals. This is a foreseeable hazard for a store that someone may be injured upon their premises. A business owner owes a duty of reasonable care (necessary for negligence to be found) to the people they invite into their business. They must protect these patrons from any dangerous condition they knew about or reasonably should have known about if they had investigated.

However, the law does not want to hold a business liable for the criminal actions of another person. If for example I walk into a restaurant at 5 pm on a Tuesday and start a fight with a fellow customer, the restaurant will likely not be found liable for my actions as I have acted as a third party that caused the damage. Nevertheless, if it is reasonable to expect that a criminal action would occur then it is the duty to remove patrons that may cause criminal activities.¹

We are not sure exactly where Krampus takes place; it was filmed in Wellington New Zealand but appears to be set in the North Eastern United States. This makes it difficult for me to cite specific case law. The film appears to mirror the 2008 trampling death of a Walmart employee in Long Island, New York.² However, Walmart was only fined $7,000 in that case.³ The US Department of Occupational Safety and Health Administration took that matter seriously nevertheless and published a fact sheet for crowd control measures for retailers during major shopping events.⁴ This may be used as evidence of how this store should have treated crowd control.

There are three security guards in the opening scene - one is dragging two patrons who appear to be children and two are each using a Taser on a patron. The courts would not consider these acts that are depicted as malicious as meeting the standard of a reasonable shopping mall in the circumstances. Furthermore, the fact sheet suggests that employers set up lines farther away from the store to prevent rushing in. This store clearly did not follow the guidelines.

Overall, it is clear with this level of violence and failure to prepare, if there was a death -- say from the guy who was knocked off a ladder and was above a certain height not wearing safety equipment -- the store would likely be found responsible to their employees and the public at large.

I would highly recommend Krampus as a Holiday horror film that is fun for the whole family; but it is very 2015 - people are standing in groups. I would not recommend heading out for a last minute shop/mosh pit this year or any other year. You might end up on Krampus' injured list.

1. The Burkett Law Firm. (2021, December 23). 2020 Black Friday: New measures and common injuries. The Burkett Law Firm. Retrieved December 23, 2021, from https://www.theburkettlawfirm.com/2020-black-friday-new-measures-and-common-injuries/

2. Dawson, V. C. (2010). Who is Responsible When You Shop Until You Drop: An Impact on the Use of the Aggressive Marketing Schemes of Black Friday Through Enterprise Liability Concepts. Digital Commons - Santa Clara University School of Law ... Retrieved December 23, 2021, from https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1050&context=lawreview; Stanzione, M. H. (2018, November 23). Personal Injury Lawyers Cash in on Black Friday disasters. news.bloomberglaw.com. Retrieved December 23, 2021, from https://news.bloomberglaw.com/us-law-week/personal-injury-lawyers-cash-in-on-black-friday-disasters

3. Norman, A. (2011, May 25). Wal-Mart fined only $7,000 for negligence in Black Friday trampling death. HuffPost. Retrieved December 23, 2021, from http://www.huffpost.com/entry/osha-da-trampled-by-wal-m_b_207958/amp

4. US OSHA. (2009, November 17). US Department of Labor's OSHA provides crowd control guidelines for protecting workers during retail sales events | Occupational Safety and Health Administration. United States Department of Labor. Retrieved December 23, 2021, from https://www.osha.gov/news/newsreleases/national/11172009