Friday, September 21, 2012

Court filing: Wal-Mart tornado victim responsible for his death

The late Stanley Kirk was at least partially responsible for his own death at the 15th Street Wal-Mart during the May 22, 2011, Joplin Tornado, according to a filing today in U. S. District Court for the Western District of Missouri.

"Stanley Kirk was comparatively at fault in failing to take cover in an area designated for safety or directed by Wal-Mart employees," attorney Maureen Brady of the law firm of Sanders, Warren & Russell, said in Wal-Mart's response to the lawsuit filed by Kirk's wife and daughter, Janice and Jodelle Kirk. Another attorney in the firm, partner Bradley S. Russell, will be the lead attorney, according to a separate filing.

The company also denied nearly all of the allegations in the lawsuit and said it did not have enough knowledge to comment on the remainder.

Wal-Mart wants a jury trial, another filing indicated.

The wrongful death lawsuit was transferred to federal court Sept. 14 after initially being filed in Jasper County Circuit Court.

The suit charges the company for not being prepared for the EF-5 tornado that destroyed the store on May 22, 2011, and for not having an adequate emergency plan.

According to the petition, Mr. Kirk went to Wal-Mart that day for a "golf-related item." The tornado siren sounded at 5:17 p.m. At some point between then and 5:24 p.m., Kirk "attempted to leave the store to return (to his) home" which was three miles away, "or a seven minute drive from the store and located in an area outside the path of the storm and untouched by the tornado."

The suit alleges "(Kirk) was forced to stay in the store and directed to an unsafe/improper location. Defendants had the responsibility to adequately design and construct the store, keep patrons safe during emergency, and design and implement a proper emergency plan."

The lawsuit accuses Wal-Mart of negligence. "Defendant Wal-Mart knew or should have known that Joplin Store No. 59 was located in an area that was at a high risk of tornadoes and violent wind."

It also says store officials knew or should have known that the building was "not constructed properly considering this increased risk of violent storms and tornadoes," and "knew or should have known there was not a proper emergency plan in place at the store, including a lack of signage and identified safe areas/tornado refuge areas.'

Wal-Mart should have known that customers forced to stay in the store "would be exposed to an increased risk of serious injury or death during violent storms."

The store was negligent in the following ways, according to the lawsuit:

a. Failing to allow Kirk to leave the store to seek shelter elsewhere

b. Failing to leave the doors unlocked to ensure access for emergency personnel

c. Failing to leave doors unlocked to ensure access for emergency personnel

d. Failing to address the increased potential for tornado hazard in construction of the store

e. Failing to have proper tornado refuge areas identified

f. Failing to have a proper safe room or tornado shelter

g. Failing to have proper signage regarding building design or other indicators for employees and patrons during emergencies

h. Failing to properly label safe areas

i. Failing to have emergency plans conspicuously displayed

j. Failing to direct all patrons to, and ensure all patrons were in safe areas

k. Failing to perform vulnerability assessments prior to storm

Store Manager Andy Martin is also charged with negligence for his actions during the storm, but an affidavit filed in Jasper County Circuit Court indicates Martin was on vacation when the tornado occurred.

The Kirks are seeking "fair and reasonable" damages, interest and costs.

The Kirks are being represented by the Hersehewe Law Firm of Joplin.


Anonymous said...

This should be an interesting case, all things considered. Rick Nichols, Leavenworth, KS

Anonymous said...

What would have happened if they had allowed him to leave and he had gotten killed in his car on the street (like so many others)? They would have sued "because Wal-mart let him leave the safety of the building." You cant win for losing with some people. We understand your feelings of loss and pain, but everyone in Joplin is feeling this way. You are the only ones who seem to want to point fingers. Hershewe should be ashamed!