Friday, July 20, 2012

Estate Sues Kroger For Employee's Shooting of Robber

The Indianapolis Star reports:
Nearly six months after Jeremy Atkinson was shot and killed by a Kroger store manager during an attempted robbery, his mother is seeking more than $75,000 in damages in a wrongful-death lawsuit filed against the supermarket chain.
Jeremy Atkinson
The complaint filed July 13 in U.S. District Court argues that Kroger neglected to enforce its own policy that prohibits employees from carrying firearms while on duty. Experts are saying this could be a tough battle for the plaintiffs to win.
... Toni Atkinson’s lawyers are alleging that Kroger’s “negligence” by not enforcing its gun policy directly resulted in Atkinson’s death.

The complaint further states, “Kroger owed Atkinson a duty to exercise reasonable care for his safety, refrain from wantonly or willfully harming Atkinson, and/or acting in a way that would increase the peril to Atkinson as a result of being on the premises. By failing to supervise its employees, enforce its own policies, and failing to properly train its employees, Kroger breached its duty of care to Atkinson.”

But experts say Atkinson’s own actions trump the allegations.

Miroff said even if there is, in fact, negligence on Kroger’s part for not enforcing its gun policy, it would still be hard to prove that the supermarket chain is at fault.
“To me, I don’t see any connection between the policy and the incident at hand,” Miroff said. “They can’t simply win by just showing that there was a violation of the policy. They’re going to have to overcome his (Atkinson’s) own actions.”
To see the rest of the article, click here.

I don't understand why any attorney would take that case.  First, I applaud when people robbing stores get shot.  They deserve it.  But setting that aside and putting on my attorney hat, this is a case that would have to be taken on a contingency, would involve an enormous amount of work, and is highly unlikely to result in even a token settlement.  It is difficult to tell from the coverage of the lawsuit all the legal theories that are involved, but the fact that the case was filed in federal court does not help.  Our local federal district court is well known by local attorneys for summary dismissal of cases.  It's hard to ever get a case to trial in federal court.  Defense attorneys know this too, which is why if the case is in federal court you often won't have any meaningful settlement discussions until after summary judgment.  The only way this case, in my opinion, has of succeeding is as a negligence case filed in state court and then the plaintiff negotiating a settlement should the defendant lose summary judgment, which is highly disfavored in negligence cases . But even then the defense attorneys know that you can never win in front of a jury, so what is the motivation for more than a token settlement?


Cato said...

How is a common-law negligence case a federal matter?

Paul K. Ogden said...

Cato, I am not sure what their federal claim is. Maybe they're using diversity. I don't know why you'd want to be in federal court though.

Jeff Cox said...

Careful. I said the same thing once and was called "uncivil." ;-)