The surviving family of Warren Keith White has sued a Clear Lake area Food Town grocery store. The family claims that Mr. White was fatally shot while in the course of his employment for Food Town, while allegedly “attempting to investigate the conduct of suspicious persons…in the parking lot, at the request or direction of his employer”. They claim that the negligence of defendant Gerlands (doing business as Food Town) was the cause of the incident, in that it allegedly failed to provide White a safe place to work, directed him to investigate the persons in the parking lot, failed to warn him of the risk he was being exposed to, failed to provide adequate security and failed to establish/implement adequate policies and procedures. They request actual and punitive damages.
As a result of recent Texas “tort reform legislation”, persons filing suits such as this face enormous roadblocks to recovery. For instance:
1. Food Town is entitled to ask the judge and jury to consider the responsibility of the person(s) that actually attacked Mr. White, even if his identity is unknown. So at trial the jury will be asked whether the negligence of Food Town, the attacker, or both caused the incident. If the jury finds that both were responsible they will then be asked to assign percentages of responsibility to each. If the jury finds, for instance, that the attacker was 90% responsible, and Food Town was 10% responsible, Food Town will only have to pay 10% of the damages the jury awards the family. So if the jury were to award one million dollars, Food Town would only be responsible for paying $100,000.
2. Food Town will not be held responsible for punitive damages, as a law passed by the Texas Legislature says that, barring several exceptions, a company does not have to pay punitive damages as a result of a suit arising from the criminal act on its premises.
Another tremendously important issue will be whether Food Town maintains workers compensation insurance. If it does, then the family can only recover if they prove that Mr. White died as a result of an intentional act or omission or gross negligence on the part of Food Town. If, on the other had, Food Town was not a subscriber to the workers’ compensation system, then Mr. White’s family may freely sue it.
If the case proceeds, a huge issue will be what instructions, if any, Food Town gives its employees about how to deal with criminal activity on the premises. Several retail establishments I represent have a strict “do not confront” policy, based on the theory that nothing in the store is worth the danger incurred by employees in confronting or chasing a criminal attempting to steal from it.
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