Mother of Man Allegedly Killed by Store Employee Sues for Battery

3cowboy.jpgA Chicago pharmacy is liable for the alleged acts of its employee that resulted in a man’s death, according to a lawsuit filed by the victim’s mother. The employee allegedly choked the man to death after chasing him outside the store, suspecting him of shoplifting. Police did not prosecute the matter at the time, but new evidence has led to calls to reopen a criminal investigation and renewed interest in the civil lawsuit.

On May 8, 2010, 35 year-old Anthony Kyser allegedly tried to shoplift a tube of toothpaste and some crayons from a CVS Pharmacy in Chicago’s Little Village neighborhood. According to footage from a surveillance camera recently leaked to the media, a store manager, Pedro Villanova, chased Kyser out of the store and caught him in the alley. The video appears to show Villanova knock Kyser to the ground and remain on top of him. Three other individuals also hold Kyser down, until eventually he stops moving. The video shows police arriving several minutes later, followed by an ambulance. The emergency responders could not revive Kyser, and he was pronounced dead.

The official cause of death, as determined by the Cook County Medical Examiner’s Office, was homicide. The police, however, declared that the death was an accident and did not make any arrests or file any charges. A spokesperson for the Chicago Police Department stated that detectives reviewed the surveillance footage in 2010 and “determined that criminal charges were not warranted.”

Kyser’s mother, Ann Marie Kyser, filed a civil lawsuit for battery in Cook County Circuit Court against CVS. She alleges that CVS is liable for the acts of its employee, Villanova, and possibly other individuals. Villanova reportedly acknowledged in a deposition that he held Kyser down, that he made contact with Kyser’s throat, and that Kyser told him he couldn’t breathe. CVS maintains, however, that Villanova was acting in self-defense after Kyser hit him in the face. Kyser’s mother states that the video proves that CVS’ version of the story is incorrect. She is demanding $400,000 in damages for her son’s death.

The general rule regarding an employer’s liability for an employee’s tortious acts, known as respondeat superior or vicarious liability, is that an employer is liable for negligent and intentional acts of an employee acting in the course of employment. The test in Maryland for determining whether a particular act was within the scope of an individual’s employment is whether the employee was acting “in furtherance” of “the master’s business.” Felland Lid Partnership v. Digi-Tel, 864 A.2d 1027, 1034 (Md. Ct. App. 2004), quoting Hopkins Chemcial Co. v. Read Drug & Chemical Co., 92 A. 478, 479-80 (Md. 1914). The CVS manager was allegedly acting to prevent a theft, which could reasonably be considered a part of his duties as an employee, and could be legally sufficient to confer vicarious liability.

The personal injury lawyers at Lebowitz & Mzhen are skilled at pursuing justice for people in Maryland who have been injured due to the illegal or negligent acts of others. Contact us today online or at (800) 654-1949 for a free and confidential consultation.

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Photo credit: By Plij1 (Own work) [CC-BY-SA-3.0 or GFDL], via Wikimedia Commons.

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