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Griffin v. KMart Corp.

11/28/2000

AMENDED AND AFFIRMED.


This is a personal injury suit in which plaintiffs sought recovery from Kmart Corporation for actions of one of its employees. All parties have appealed from a judgment that found Kmart liable and awarded damages. We amend and affirm.


On December 2, 1996 Leeta Howard Griffin and her adult daughter, Beverlee Griffin Chivleatto, were shopping at the Kmart store on Lapalco Boulevard in Marrero. They went up to the counter in the sporting goods department, where Kmart employee Robbie E. Brown was working, and asked Brown to perform a price check on an item. Brown did so, but then he removed an air pistol from a display case and fired it at Griffin. Brown fired the weapon directly at Griffin's right side, creating a loud noise and causing both plaintiffs to believe that Griffin had been shot. Brown then pressed the barrel of the gun to the chest of Chivleatto and fired it, causing a loud noise and striking her with sufficient force to result in a bruise on her chest. Both plaintiffs believed that Chivleatto had been shot.


Chivleatto is a heart patient who has a pacemaker. The concussion to her chest from the air pistol damaged the settings on her pacemaker and required her to get the pacemaker reset. In addition, however, Chivleatto suffered extreme anxiety because the incident revived memories of the death of her son, who was killed by a gunshot wound to the head in 1988.


Griffin, Chivleatto, and Chivleatto's husband, Kermit Chivleatto, Sr. filed suit on February 7, 1997 against Kmart. Griffin and Chivleatto alleged they suffered emotional damage and distress caused both by the gun being pointed and fired at them and by each witnessing the apparent shooting of the other. Kermit Chivleatto, Sr. claimed loss of consortium. Plaintiffs sought recovery against Kmart both for negligent hiring and for vicarious liability for its employee.


At trial there was testimony from Evelyn Callaway, who was human resources manager at the Kmart store when Robbie Brown applied for employment there. Callaway testified she did not want to hire Brown because there were a couple of "red flags" against him; specifically, he had been terminated from his previous job at Wal-Mart relatively close to Christmas and he had a poor work record. However, her reluctance to hire Brown was overruled by the store's hard lines manager, Chris Prinz, because they needed someone in the sporting goods department.


Callaway also stated that employment applicants were required to complete a pre-employment questionnaire designed to provide a suitability rating, but that Brown did not fill out the questionnaire until after he had already been hired. Callaway said that Kmart policy required that the form be completed and graded prior to hiring. There was no such questionnaire in the records provided by Kmart at trial, however.


Callaway admitted that, of the past employers listed by Brown on his application, she checked with only the last employer, Wal-Mart. Brown stated on the application that he had been fired by Wal-Mart for returning from lunch ten minutes late. When she telephoned Wal-Mart, however, the only information given her was that Brown had been employed there, the dates his employment started and ended. Wal-Mart records provided at trial showed the reason for his termination from Wal-Mart as insubordination.


Callaway stated further that it was not Kmart's practice to check for criminal records of prospective employees; she said Kmart only did what they were required by law. She also admitted she did not contact any of the personal references he listed.


Marilyn D. Davis testified she was the sporting goods manag

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