Black Friday: what ever retailer needs to know

Black Friday.

I must confess that, until last Friday, I hadn't heard of it.

At least I think I hadn't. The concept may well have crossed my path in the past but it was only a temporary guest, spending no more than a minute or two in my increasingly full short-term memory. It was probably filed under 'stuff that happens in America' and duly forgotten about.

So what is it?

In the US, it is the day after Thanksgiving when many retailers start their Christmas shopping campaigns in earnest. At times, the day has been known to involve fist-fights, vicious assaults and two-for-one offers on Egyptian cotton bed sheets: an intoxicating combination, if you like your shopping with a soupçon of violence.

Well I don't.

And I suspect that many retailers don't like the idea either.

That said, like many American invasions, it has started to appear in the UK.

So this got me thinking: what happens from a legal point of view when a retailer whips up a frenzy of excitement in its customers—whether on purpose or inadvertently—and things go wrong? When hoards of impatient bargain-hunters swarm through the store, many frothing at the mouth, in a desperate bid to find goods at a massive discount?

Can any blame be attached to the retailer?

As always, the answer is: 'it depends'.

It is interesting to have a wee look at what was said by the judge in the recent case Everett and another v Comojo (UK) Ltd (t/a The Metropolitan and others)* In this case a customer was unfortunate enough to be injured in a knife attack at a nightclub. The customer sued the club alleging that it had failed to take appropriate steps to protect its guests.

In this case the court had to ask whether the relationship between the management of a night club and its guests was of sufficient proximity to justify the existence of a legal duty of care.

The judge noted that:

The management is in control of the premises. It can regulate who enters, who is refused entry and who is to be removed after entry. The guest comes to the night club to relax and enjoy himself and for that prospect relies on the competence and prudence of its management. He expects and is entitled to expect that there will be no violence and that he will not be unsafe. Further, the management of the night club is in business and wants the guest to come to spend his money; there is an economic relationship between the two. In my judgment, those factors demonstrate sufficient proximity

So let's remove the words 'night club' and replace them with 'retail outlet' (which doesn't seem too outrageous from a legal point of view). It is then pretty easy to see how this principle could be attached to that of a retailer and a customer.

What about the foreseeability of injury?

Given the history of Black Friday in the States, and even the UK, a sensible retailer ought to undertake a risk assessment of any Black Friday-style event which should recognise the existence of such a risk. The judge in the nightclub case said that, 'it must be foreseeable to any licensed hotelier that there is some risk that one guest might assault another'. Could the same be said of a retail/ customer scenario? In a case where, say, hundreds are bargain-hunters are channelled into a small shop, this might indeed be a possibility.

The precautions that retailers should take will vary. Sadly, there isn't any rule of thumb which applies to all retailers; but simply ignoring the possibility is not good enough, even if the risk is low.

Typically, the duty of care of the retailer requires it to take such care, as in all the circumstances of the case is reasonable, to see that a customer will be reasonable safe:

Circumstances will vary so widely. However, I think it will be a rare night club that does not need some security arrangements which can be activated as and when the need arises. What they need to be will vary

So a bit of 'common sense' needs to prevail. A supermarket is not a nightclub. A hairdressers is not an all-night clubbing venue. (Well not yet anyway.) The likelihood of violence or injury is arguably minimal in most cases to do with retailers. This doesn't mean that the whole issue can be wantonly ignored.

Nobody wants their Black Friday to turn into Screamy-Shouty-Thumpy-Assaulty Friday. Even worse, nobody wants to get the lawyers involved. You have been warned!

* [2011] EWCA Civ 13

Area of Interest