Thursday, August 16, 2012

Lawsuit v. Kroger Should be Bagged

Lawsuit v. Kroger Should be Bagged
Commentary by Sanford D. Horn
August 16, 2012

In a world where the guilty blame anyone but themselves, this is the frivolous lawsuit of all frivolity, and perhaps a strong case as to why the United States ought to consider adopting the British system of jurisprudence, known as the English Rule, where the loser pays the court costs, legal fees and other expenses.*

In a money-grubbing lawsuit, the mother of a man who was killed during the commission of a robbery is suing the store her son was attempting to rob for failure to enforce its own gun policy. This should be a no-brainer; case dismissed, and stop wasting the court’s time.

On December 26, 2011 Jeremy Atkinson attempted to rob the Kroger supermarket on W. 71st Street in Indianapolis by forcing a store security guard into the office while pressing a hard object against the guard’s back. The Kroger store manager Elijah Elliott bravely shot and killed Atkinson, hitting the convict in the face.
This was not Atkinson’s first foray into the world of crime. In 2009 Atkinson was convicted of armed robbery of a Subway sandwich shop on North Keystone Avenue. Demonstrative of the poverty of the criminal justice system, Atkinson violated his work release amidst a four-year sentence. Clearly, prison was not a rehabilitative experience for Atkinson. Additionally, Atkinson faced an outstanding warrant for robbery and criminal confinement from 2011 that predated the Kroger robbery attempt.

While Atkinson’s criminal record could not possible be known to Elliott, he handled the situation with aplomb, acting in the best interest of the innocent customers and employees in the Kroger – their lives spared while that of a thug’s was dispatched.

A robbery thwarted, a criminal prevented from taking any innocent lives, and yet, Toni Atkinson, Jeremy’s mother, is suing Kroger claiming “negligence by not enforcing its gun policy.” (Indianapolis Star, July 20)

Further adding to the ludicrousness of the claim by Atkinson, her lawsuit’s complaint says “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.” (Indianapolis Star, July 20)

If anyone reading this is not completely apoplectic, then nothing will ever make them apoplectic – EVER. Did Kroger invite Atkinson to arrive at the store with the intent of committing armed robbery? No. This was fully the responsibility of Atkinson and an exercise of his free will.

If anything, Elliott is a hero for protecting the shoppers and store employees – all of whom were legitimately in the supermarket with no plans of malice. Kroger owed nothing to Atkinson and everything to their clientele and workers – providing a safe place in which to shop and work.

But for a moment, let’s explore Atkinson’s mother’s lawsuit calling for Kroger to have protected the felon’s safety. Should Elliott have done nothing, potentially allowing for the security guard to be murdered by Atkinson? Should Atkinson have been given free rein to rob the Kroger, take hostages, or commit multiple homicides? Is anyone buying this malarkey?

Why should Atkinson’s safety take precedence over that of innocent shoppers and employees? It should not – ever. Elliott’s act of self-defense should be protected without any deleterious effects on his legal or employment status.

There is, in fact, a self-defense statute in Indiana, cited Zionsville attorney Guy Relford, specializing in gun-related issues. “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,” reads the statute. (Indianapolis Star, July 20)

Jeremy Atkinson brought this incident on himself and no one should lose minute one of sleep except his mother. In turn, Toni Atkinson deserves not one penny of the $75,000 she is attempting to extract from Kroger, and ought to sue her own attorney for suggesting she should profit from her son’s criminal activities which ultimately caused his death.

Sanford D. Horn is a writer and educator living in Westfield, IN.

*The English Rule: “the principle that fees and costs of litigation should be shifted to the loser--known as the English rule….

The theory of the English rule is uncomplicated: Whichever side prevails in a legal action is entitled to recover its reasonable litigation expense--court costs, legal fees and other expenses, such as expert witness fees--from the losing side.

In England, the loser pays the winner's legal costs even in settlements, regardless of whether a formal action was filed; the typical settlement agreement includes a statement as to what costs will be paid.” (Kritzer, Herbert M. “The English Rule,” ABA Journal, Nov. 1992, p. 55)

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