Suit against Wal-Mart for 2005 'Black Friday' pepper spray incident moved to federal court

David Yates Feb. 26, 2008, 7:45am

Last November, the Record reported on a suit brought against Wal-Mart by the shoppers involved in the 2005 "Black Friday" incident in which security had to pepper spray unruly bargain hunters.

On Feb. 20 the suit was removed from Jefferson County and re-filed in U.S. District Court for the Eastern District of Texas, Beaumont Division.

On "Black Friday" 2005 -- the day after Thanksgiving that has become the biggest retail shopping day of the year -- hundreds of shoppers flooded the Wal-Mart in Beaumont in the pre-dawn hours to take advantage of rock-bottom prices on laptop computers and other electronics.

But the joyous shopping trip turned into a melee when a security officer shot pepper spray to try to subdue a crowd he claimed had become unruly.

Two years after the incident, two customers who say they were "assaulted" by the officer's use of the irritant filed a lawsuit against the mega store.

Andrea Davillier II of Beaumont and Sara Spikes of Houston filed their personal injury suit against Wal-Mart on Nov. 26 in Jefferson County District Court.

According to the plaintiffs' original petition, Davillier and Spikes were patrons at Wal-Mart on Nov. 26, 2005.

"While waiting in line at the Wal-Mart store � plaintiffs were injured by defendant, defendant's agent and/or defendant's employee," the complaint states. "Specifically, defendant, defendant's agents and defendant's employees pepper sprayed plaintiffs while plaintiffs stood in line at the Wal-Mart store."

In police reports and media coverage following the events in 2005, the shoppers were crowding into the electronics department after waiting in line, some overnight, in hopes of buying laptops for $300. The store had only a limited amount of the advertised laptops, and some shoppers said there were in fact none available when they entered the store.

Reports said shoppers began pushing and crowding around the check out counter in the electronics department, and at one point had the cashier pinned against the counter. The security officer, an off-duty policeman, reported that he warned the crowd numerous times to regain order or he would get out the pepper spray.

The officer said when the crowd ignored his warnings, he released a single 2-second burst of pepper spray into the air. Many eyewitnesses gave a different account, saying there were multiple sprays, some directly at shoppers. Some shoppers reported experiencing extreme nausea, vomiting and coughing and were barely able to make it out of the store.

Davillier and Spikes say the "assault or attack" caused them a great deal of stress, mental anguish, medical expense and pain and suffering.

They allege that Wal-Mart is guilty of negligence for failing to train, supervise, retain and hire its employees.

In addition, the defendant is liable under the theory of Intentional Infliction of Emotional Distress and Assault.

The plaintiffs say they will be forced to endure pain, suffering and mental anguish from the incident for an undetermined length of time in the future and "probably for the rest of plaintiffs' life."

Because the plaintiffs also assert that the defendant's conduct constituted gross negligence, conscious indifference and malice, they are entitled to punitive and/or exemplary damages.

Jason E. Payne of the Payne Firm PLLC in Houston is representing the plaintiffs.

Wal-Mart is represented by Karen Spivey of the Pate & Spivey law firm.

Judge Donald Floyd had been presiding over the case (No. E180-810).

Marilyn Tennissen contributed to this story.

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