The action, originally filed in Jasper County Circuit Court, was transferred to U. S. District Court for the Western District of Missouri today.
The suit charges the company for not being prepared for the EF-5 tornado that destroyed the 15th Street Wal-Mart 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.
Kirk's widow, Janice Kirk, and their daughter Jodelle are seeking "fair and reasonable" damages, interest and costs.
The Kirks are being represented by the Hersehewe Law Firm of Joplin.
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31 comments:
Wow is all I can say.......
Wow is all I can say......
It saddens me to see a town that pulled together so strongly after this violent disaster, now beginning to be torn apart. There is not one business in that town that can be 100% safe. This will only be the beginning of the lawsuits filed against Walmart and other places of business. Anger in your heart formed from hurt because of the loss of a loved one, can destroy a good person.
Everyone in Joplin lost loved ones. No building, including someones home, is deemed 100% safe. What ever happened to Good Samaritan law? Obviously the people of Walmart were attempting to protect its customers. I am also from Joplin and lived through the horrible events last year. This lawsuit cannot be allowed to proceed; and shame on the attorneys (also local) for even taking this case.
Disgusting. Not sure who is more disgusting...the person suing or the law firm for taking the case. But disgusting.
Okay for one, the safest place in a storm is indoors. No matter what Walmart might of done or not done. Our lives are in gods hands, I believe if it is your time...its o
ut of our hands and especially Walmart. I am sorry for the families loss, but come on.
Very sad when people try to exploit a bad situation!!! This is ridiculous.
One of the claims is that Wal-Mart was located in an area of high risk for tornados??? Duh!
Easy to say after the fact he would have been more safe to leave the store and drive to his home - the unpredictability of these storms really challenges preparation. Even if this suit is a victory for the plaintiff it will not bring back their father and husband. Who really wins??
Really People!! No one person or business in Joplin was prepared for an F5 Tornado. You can't go suing everyone or businesses for that. And to top it of trying to file suit of negligance on the store manager and he was on vacation. I hope they kick this case out quickly. They need a reality check. They aren't the only ones that lost loved ones that day there were 161 that lost there lives.You don't see them filing law suits.This is Disgusting & Greedy!!!
Just sad, let's sue Walmart and get rich because they tried to save our family.
It says they LOCKED the doors. If that's the case, this suit should not only proceed, but I hope the family mops up monetarily with Wal-Mart. An adult should not be locked in, regardless of whether anyone thinks leaving was a good idea or not. I don't shop at Wal-Mart to be parented and I'm assuming nobody else does either.
Anyone else notice point B and C are the same?
Sad and crazy story....guess people should sue all the other stores where people died....
How do you prepare for an EF5? Thank God they tried to save his life by keeping him in there.
Our feeling exactly. When you are trying your best to save someones life!!!
This is insane! I had two friends that sought shelter in that Walmart store, and they walked out without a scratch. Had they continued toward their home at The Dock Apartments, they would have, undoubtedly, been severely injured or quite possibly killed. Walmart could file as ridiculous a counter-claim stating that the man must have been suicidal...afterall, he entered a store site 'known for high risk of tornadoes'. And Hershewe should have said "NO WAY!"
Such a sad thing when a person wants to find someone to blame for an event that no one caused. WalMart was not negligent and this law firm should be ashamed of itself for even entertaining the thought that they were. The plaintiff should also be ashamed of herself. It is rough to lose a loved one, but suing an innocent party because of an act of nature doesn't fix that.
I'm sure doors weren't locked. Just found a good ambulance chaser to represent her and cash in. No husband with a high paying job to bring in shopping money I'm sure. A lot of people died.... Are they suing car companies for not having a storm shelter on board???
Outrageous! Walmart had a disaster plan which was implemented within the time/notice they were given in this event. In regards to his being forced to stay, he had a choice to leave or stay in the building, the doors do not lock. He was most likely encouraged to stay for his own safety. He could have left and died in the parking lot.
What about the hospital that was hit, which was required to have a much more detailed disaster plan. Look at the injuries an
d deaths there. Do we open the flood gates for that facility to be sued as well?
Building construction, really? How many buildings in that area were designed to withstand an F5 tornado? It would certainly not be the hospital, schools and many other public and private buildings.
Walmart has deep pockets, so what the hell, the lawyer is counting on an easy hit and a large settlement. They just might be surprised.
I feel sorry for this family but...mother-nature and natural disasters cannot be controlled...they are directing their anger in the wrong dirction. It should be directed at the ambulance chasing lawyer that encouraged and is feeding on this frivolous case.
Everyone knows that the doors of Walmart only lock on Christmas Eve! And although door greeters are friendly and encourage you to shop and stay at Walmart, I have never seen one physically try to keep anyone in the store!
Shame on them. Shame on all of them.
They are completely out of line for this. This is ridiculous. Money hungry people!! Im ashamed that they are fellow Joplin residents....
You must be the one filing. Obviously you are a saddened person and have a low income.
Honestly, tell me HOW MANY people are going to stop and read some disaster/emergency plan that might have been posted anyway!!! I'd venture a guess that most folks don't look at the fire escape routes for motels/hotels, and a motel fire is more likely to happen than an F-5 tornado hitting a Walmart store in Joplin, MO. on any given day. Make huge safe rooms available in all buildings, but don't complain about increased costs passed on to you, the consumer.
NO WAY, HERSHEWE!!!!!!!!!!!!!!!!
They should be ashamed of them selves!!! Sorry for the loss of a family member. But how stupid can you be????
This is another case of a person being judgmental when they do not know what they are talking about. When this comes before a judge it should be thrown out and the legal representative charged with contempt of court for even bringing something like this to court; costing the court time and the taxpayer money. There are too many frivolous suits brought by greedy and unscrupulous lawyers.
First let me say that I am sorry for the loss that the Kirk Family suffered. We all know someone affected or even lost someone ourselves during this event. It is a shame that they have chosen to do this. This was an act of God. No one, no business, could have been prepared for this diaster.
What really bothers me is that a Joplin Law firm is involved in this. That is revolting to me. I would expect this from a big city law firm, but not one from Joplin.
Shame on you Hershewe Law Firm. Just shows you have only after money.
Sad. I hope the judge assigned to this case has some common sense and finds this suit baseless and nothing but a money grab by the family and the law firm. And while he's at it gives Mr. Hershewe and his minions a nice tongue lashing for cooking up and propagating this scheme. I would like to see him move to have disbarrment proceedings begun against Mr. Hershewe for bringing such a frivolous lawsuit.
I was there, they did lock us in, told us its a code black and proceede to the middle of the store. We got out because my husband and another customer made an issue of being locked in. The manager told us to go and risk our lives. As we walked out he said no one else can leave. Trust me, they wouldn't have let me out if my husband hadn't been there.
I work at a big business in Joplin that locks there doors in this type of event. If you are in the parking lot coming back from lunch and they have locked the door due to a tornado your not getting in. My dad was at Lowe's that day and was locked in my brother made it to Wal-Mart who kept there doors unlocked longer than most and due to Lowe's locking the doors earlier when he was at the store was lucky Wal-Mart waited as long as they did cause it saved his life. Then the flip side the direction my dad drives home he would have probably died if Lowe's would have not locked him in. This is a common practice at large organizations. It is actually known to usually save lives so you don't have numerous people out in their cars trying to outrun a tornado which is more dangerous. Research shows the locking of doors is the best thing to do which is why it is in practice now if someone has statistics to proove this has changed I'm sure big businesses would like to know this due to the companies I have worked for and currently work for spend a ridiculous amount of money on their emergency operations preparing for events that may never happen. That being said I can't imagine their grief and feeling they have to fight for justice for the loved one they lost. It keeps them from having to face the pain of the loss but, unfortunately it was his time to go to heaven. May his family have continued prayers while they heal from their loss.
How many people lost their lives because they went there for shelter and the doors were locked? People saying their doors don't lock are fools, every door locks! No one should ever have to be concerned about dying from an I-beam hitting them? The ones being sued should be the company that builds Walmarts! I also notice that older commercial buildings hold up better than new ones, that should never be the case! Is it the design or is it the imported steel used today?
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