On our New York premises liability blog, we have written about dangerous conditions that have led to people getting hurt at commercial sites such as shopping centers. But it’s rare that we find a case where people are alleging that someone’s death was deliberately caused by people working there. But that’s just what one family is saying in a recently filed lawsuit — even though a grand jury decided that those people would not be charged criminally.
The premises liability case stems from the death of a 26-year-old man who had Down syndrome. He was attending a movie at the shopping center’s movie theater with his caregiver in January. When the movie ended, the caregiver left the man to collect the car; while the aide was gone, the man re-entered the theater to watch the movie again.
His actions were observed by a manager, who told the man — who was reported to have an IQ of 40 — to either purchase another ticket or to leave. Upon returning, the aide warned the manager and a security officer that the man would “freak out” if they touched him.
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However, the warning was not heeded. It took three security officers — all of whom were off-duty sheriff’s office employees — to wrest the man from his seat. A struggle ensued, and the officers allegedly handcuffed the man and dragged him on the floor. He stopped breathing and later died; his death was officially ruled as a homicide due to asphyxia — lack of oxygen.
The family understandably sued. This is an interesting case because of issues involved when employees commit intentional acts or crimes that may or may not be part of their normal employment responsibilities.
When an employee does something outside of his responsibilities it is referred to as “driving beyond’ the scope of their employment. So if a bus driver gets into a fistfight with a passenger it may or may not be a driving beyond situation depending on what and where and how the fight began.
In the case in Washington, it appears that this would be within the scope of the employment of security guards leaving them liable.
This is especially important because the liability insurance company that covers the security guards would have to pay if the acts were found to be in the scope of their employment and would NOT have to pay if they committed those acts outside their normal employment responsibilities.
Stay tuned for updates on this interesting case. As always we at Dansker and Aspromonte stand ready to help with all issues you may have regarding personal injuries and medical malpractice.
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Source: The Washington Post, “Parents file lawsuit in movie-theater death of 26-year-old man with Down syndrome,” Theresa Vargas, Oct. 17, 2013
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