Mother of robber sues store for allowing employee to carry a gun

[MedWheeler]

Yoda wrote:

This could not happen in Florida. Part of the "Stand Your Ground" law in Florida denies relatives the option of sueing, when the guy who defended himself is not convicted of any crime.

Of course the retailer could have been sued; it is not the shooter. Also, Florida's "civil immunity" clause only applies when the shooting is determined to have been justified, which requires a higher standard than simply "no conviction." If a person is charged, tried, and acquitted, they are not protected by the clause. Also, if the State Attorney's office declines to charge due to lack of faith in the ability to get a conviction, the shooter is not protected. It must be a "true bill" of a case of justifiable homicide.
But, as indicated already, the mother is not suing the shooter (yet.)

 

[cbrgator]

The woman will have to prove a few elements to prevail on her wrongful death claim against Kroger, the most salient of which (and likely the most difficult for her) is causation.

 

[oneounceload]

A civil case is not about who is right or wrong, it is about who can pay the biggest judgement. The lawyers are the real winners.

Exactly - one look at the slew of ads running now on TV about various medical devices and call them right you MIGHT be eligible - called making the case when there isn't any and grabbing a chunk of the settlement money

Even if Kroger settles without admission of guilt for 100K, she walks away with some and the lawyer makes some, and the price of tomatoes will go up to compensate

 

[smalls]

I hope that this does go to trial. I also hope Kroger wins, and turns around and sues the mother for lawyer fees. Maybe after that happens enough times people will stop trying these stupid civil "wrongful death" cases.

 

[HankB]

The lawyer is either a real idiot or genuinely believes he has some legal precedent and authority to stand on.

These two possibilities are not mutually exclusive . . .

 

[Nagant]

Kroger should counter-sue for this miserable creature raising up such a degenerate scumbag of a son. But then, I'm not a judge or a lawyer and I can't quite understand that whole world of legal corruption and immorality...

 

[steelerdude99]

Kroger should counter-sue for this miserable creature raising up such a degenerate scumbag of a son. But then, I'm not a judge or a lawyer and I can't quite understand that whole world of legal corruption and immorality...

Until there is some legal dis-incentive to sue, there will continue to be frivolous lawsuits. I am sure the plaintiffs truly feel that they have been “wronged”. In this case, a man who worked at Kroger killed her son. However, looking at the big picture neither the store employee nor Kroger committed a criminal act. The man who was shot (i.e. her son) was shot while committing a criminal act. To have a system that is “just”, those who sue need to have “clean hands”. [ Did you ever notice how when someone is hit by a train, the railroad says “A Trespasser was hit by a train”. It criminalizes their being on the tracks in the first place. The idea is to make the railroad not liable. ]

chuck

 

[MedWheeler]

Part of the reason frivolous lawsuits (and even "legitimate" ones) are so much more infrequent outside the US is that, in may countries, the person bringing about the suit is required to post a bond. This bond is to secure the cost of the court's fees, and the defendant's costs for his defense should the plaintiff lose the case.

Just sayin.. is all..

 

[Schutzen]

Steelerdude99 is quite correct, "until there is some legal dis-incentive" to cease frivolous lawsuits like this they will not stop.

I suggest the best "dis-incentive" would be to make the plaintiff’s lawyer also financially liable if it can be proven a frivolous lawsuit. If Atkinson’s lawyer were liable for Kroger’s legal fees and even subject to disbarment; a lot of these BS lawsuits would cease.

 

[Victor1Echo]

Who is financing this lawsuit? I doubt this woman had the wherewithal to obtain a lawyer, much less the income.

 

[cbrgator]

Who is financing this lawsuit? I doubt this woman had the wherewithal to obtain a lawyer, much less the income.

Lawyers generally accept these cases on a contingency fee basis. The mother pays little or nothing up front (sometimes attorneys require the plaintiff to pay the filing fee), and the attorney gets paid a percentage of the settlement/award. If the mother doesn't settle or win at trial, neither of them get paid.

 

[brickeyee]

The shyster thinks he has found away around the Florida Supreme Court's ruling on how cases of self defense will be handled.

In the wake of the 'Stand your ground' law, the court established a procedure that will be followed.

The defendent asserts self defense after being charged.

The judge hold an evidentiary hearing, and by a preponderance of the evidence presented makes a ruling.
If the judge rules the shooting is self defense, the criminal case dies and any civil case filed results in the plaintiff paying legal costs.

The shyster thinks they have found another set of deep pockets that the law does not protect, the employer.

 

[Kleanbore]

Posted by brickeyee: The shyster thinks he has found away around the Florida Supreme Court's ruling on how cases of self defense will be handled.

While your description of the process is accurate, I doubt that that's what the lawyer is trying to do.

If you wanted to try to make some money, probably though an out-of-court settlement, would you sue a fired grocery store employee or a large corporation?

 

[SHR970]

The shyster thinks he has found away around the Florida Supreme Court's ruling on how cases of self defense will be handled.

Irrelevant. The original incident occurred in Indianapolis Indiana. Unless there is a city of Indianapolis in Marion County Florida with a Wishard Hospital the laws of Florida do not apply.

If we are to have an intelligent conversation about the criminal / civil defense laws and their application, we must keep the conversation focused on the applicable laws of the location where the incident and subsequent lawsuit(s) occur. The only laws that apply here are those of the state of Indiana.

 

[Warp]

Tort reform is in reality a VERY simple thing. Just apply the same rules of evidence to civil proceedings that are required in criminal.

Prove your case to exclusion of any doubt........course that approach would dramatically reduce the amount of trial lawyers (substitute fleas), if that's any disadvantage.

That would be "beyond a reasonable doubt". Not exclusion of any doubt.

 

[Kleanbore]

Irrelevant. The original incident occurred in Indianapolis Indiana. Unless there is a city of Indianapolis in Marion County Florida with a Wishard Hospital the laws of Florida do not apply.

Very true, but the Indiana code would seem to contains a similar provision regarding civilliability. It is wrapped up in the phrase "no person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary." Emphasis added.

The procedure may differ from that of FL, but the legal principles should be about the same...defendant shows that a preponderance of the evidence, etc.

Again, however, that would not apply to suites against Kroger, and again, the individual can be sued in either jurisdiction.

 

[SHR970]

For the suit to be successful against Kroger, the plaintiff will first have to establish that Kroger had violated a duty of care by not searching each and every employee either randomly or routinely. They are prohibited by law from singling out an employee without cause or the corporation is in violation of the harassment laws.

Kroger will have as grounds for defense any Union contact agreement that stipulates "cause" as a prerequisite to conduct any search of an employee. If no contract is in force, then their next line would be any company policy that establishes a causal requirement to effect a search of employees or their possessions. Then we go into the specific employment laws of the State and Fed.

In short, the plaintiff would have to show that Kroger had a duty and failed to perform it. As I said earlier, when Kroger found out about a violation they fired the employee. They upheld their policy. Unless it can be shown that they knew before hand or should have known beforehand that the employee was armed in violation of company policy there is no case.

 

[Frank Ettin]

For the suit to be successful against Kroger, the plaintiff will first have to establish that Kroger had violated a duty of care by not searching each and every employee either randomly or routinely....

Please cite some applicable, legal authority for the proposition that is the applicable standard of care.

 

[SHR970]

In business, "the duty of care addresses the attentiveness and prudence of managers in performing their decision-making and supervisory functions."

Alan R. Palmiter, Corporations: Examples and Explanations, 5th ed. (New York: Aspen Publishers, 2006), Pg 192.

Tort law varies in all 50 states but here is some fun reading: Torts

This case will need to show vicarious liability; ie Kroger knew or should have known their employee was armed in violation of company policy.

Currie, S., & Cameron, D. (2000), "Your Law", Nelson Thomson Learning, Melbourne, p. 225

Edit: To show that they knew or should have known; search of the employees and their possessions would need to be performed unless it can be shown that the employee in question stated to someone in a supervisory or management position that they are armed.

 

[Frank Ettin]

In business, "the duty of care addresses the attentiveness and prudence of managers in performing their decision-making and supervisory functions."

Alan R. Palmiter, Corporations: Examples and Explanations, 5th ed. (New York: Aspen Publishers, 2006), Pg 192.

Tort law varies in all 50 states but here is some fun reading: Torts...

All of that is nice, but it doesn't establish that your statement:

...the plaintiff will first have to establish that Kroger had violated a duty of care by not searching each and every employee either randomly or routinely...

is correct.

...Currie, S., & Cameron, D. (2000), "Your Law", Nelson Thomson Learning, Melbourne, p. 225...

Which says what? If you're going to cite a book, we shouldn't need to search out that book to find our what you're trying to say.

...This case will need to show vicarious liability; ie Kroger knew or should have known their employee was armed in violation of company policy....

That reflects a misunderstanding of the principle of vicarious liability. A key attribute of vicarious liability is that the party held liable has no fault, but rather the fault of the actor is imputed by the law to the party held liable. Some definitions of "vicarious liability":

• Legal-Explanations.com;

  (n). A vicarious liability can be defined as the liability created by an action or non action by a person, working on behalf of him when he is responsible for all the action or inaction of such person within the limits of their association. So when an employee or worker cause a loss to somebody in the normal course of his duty then the employer will be responsible for such loss.

  
  
• The Free Dictionary:

  The tort doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship (such as Parent and Child, employer and employee, or owner of vehicle and driver), to exercise such care as a reasonably prudent person would use under similar circumstances.
  
  Vicarious liability is a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently....

  
  
• USLegal:

  Vicarious liability refers to liability for the negligent or criminal acts of another person that is assigned to someone by law. Vicarious liability exists when liability is attributed to a person who has control over or responsibility for another who negligently causes an injury or otherwise would be liable. Whenever an agency relationship exists, the principal is responsible for the agent's actions....

...To show that they knew or should have known; search of the employees and their possessions would need to be performed unless it can be shown that the employee in question stated to someone in a supervisory or management position that they are armed.

[1] That might be one way to show notice, if notice is required here, but it's not the only way.

[2] And notice or constructive notice might be necessary if the theory of liability is simple negligence. How do you know that is the theory the plaintiff is pursuing here?

 

[SHR970]

Alright..according to the definitions posted, it can be argued that Kroger has vicarious liability in that their relationship is one in which they are required to supervise their employee and enforce their policy. Their (Kroger) negligence is in that they failed to adequately supervise aforementioned employee. Said employee during the normal course of employment and in violation of company policy committed an act caused the damages to the plaintiff.

Vicarious liability is a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently

The employee caused the injury. The plaintiff needs to show the causal relationship that Kroger (the "person" in this case is a corporate entity) did not adequately take affirmative action to prevent the employee from being armed and that failure resulted in their employee to have the firearm on or about his / her person during the course of routine employment duties. This would imply that they search their employees to ensure that they are compliant with company policy.

The prudent person would reject the notion that the average employer search their employees. As such, the tort liability will be hard to prove.

How do you know that is the theory the plaintiff is pursuing here?

I don't; one never knows for sure what novel concept a lawyer may try to pursue. I'm sure in your many years you have seen some interesting permutations.

More Reading
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[barstoolguru]

They are expecting a payoff so it doesn’t to go to trial, she is in the wrong but you can see they are not filing against the employee (shooter) and there is no mention of the robbery at all in the suit!

 

[SHR970]

Of course they can also take a shot at strict liability or negligence.

In negligence they still have to prove a breach of duty. To do that they would have to prove that Kroger had a duty to prevent an employee from being armed.

Even more legalese

In any of these courses, they are going to have a hard time passing the prudent person test.

The question that remains is how willing Kroger management will be to bring their legal team bear? If you have them on the payroll, you might as well use them. God forbid the families of deceased robbers find out that this company will make you the winner of the lawsuit lottery.

 

[wildbilll]

The employer/employee relationship precludes Kroger from any successful legal action against the employee. The only recourse for Kroger was to fire him, they did that. Then later they wanted to kiss and make up. Not a strong case for recovery of economic damages.
Plus, they can't just settle with, or have a judgement entered against them and THEN go after the employee. They would have had a need (and a want) to make the employee a third party defendant early on as discovery began.
It would be at that point the court would rule the employer was responsible for the actions of the employee, since his actions were not criminal. (He was doing his job on the jobsite, he decided that he preferred not to be dead, so he did what any of us would do)

 

[Frank Ettin]

Alright..according to the definitions posted, it can be argued that Kroger has vicarious liability in that their relationship is one in which they are required to supervise their employee and enforce their policy. Their (Kroger) negligence is in that they failed to adequately supervise aforementioned employee. Said employee during the normal course of employment and in violation of company policy committed an act caused the damages to the plaintiff....

...The employee caused the injury. The plaintiff needs to show the causal relationship that Kroger (the "person" in this case is a corporate entity) did not adequately take affirmative action to prevent the employee from being armed and that failure resulted in their employee to have the firearm on or about his / her person during the course of routine employment duties. This would imply that they search their employees to ensure that they are compliant with company policy...

I'm sorry, but you still fail to understand the applicable concepts. It fully appears to me that you are not a lawyer. However, I am, and I was in successful practice for more than 30 years before I retired five years ago.

Vicarious liability is a form of liability imposed without fault. An employer can be held vicariously liable for the wrongful conduct of an employee, within the course and scope of his employment, without the employer having any fault in the matter. The policy reasons the doctrine evolved relate to the fact that an employer has control over the employee's performance of his responsibilities. But in a given case, employer fault becomes irrelevant. The employer is simply liable for the wrongful conduct of an employer, within the course and scope of his employment, by operation of law and without any fault of the employer.

However, if the harm allegedly wrongfully caused by the employee is the result of the employee's failure to follow an policy of the employer, and the plaintiff seeks to impose liability on the employer for its failure to properly assure that the employee adhered to policy, we've left the realm of vicarious liability. Now it's a matter of attempting to impose liability on the employer for its own alleged misconduct -- failure to properly enforce a company policy.

At that point if becomes a question of whether the employer acted as a reasonable and prudent employer in like circumstances and with reasonable consideration of the nature and likelihood of foreseeable harm. Does that mean in the case of a policy that employees are not permitted to have guns at work, the reasonable and prudent employer will implement a policy of period and random searches, or would a reasonable and prudent employer simply take appropriate disciplinary action upon discovery that the policy had been violated?

That will be up to a court to decide. And if a court in a particular jurisdiction has not yet ruled on that question, it is impossible to be glib about that the applicable standard of care is.