Bryant v. Livigni

Diana Bryant (plaintiff) sued Mark Livigni (defendant) for injuring her son outside the grocery store where Livigni was employed for 17 years by National Super Markets, Inc. (defendant). There had been no previous customer complaints about Livigni, who was a manager at the store. One day while Livigni was off duty, he stopped by to check on the store, which he was authorized to do even when he was not on duty. Livigni was drunk. When Livigni saw a 10-year-old boy urinating on the side of the building, he chased him back to Bryant’s car. Livigni pulled a different child out of the car, Bryant’s four-year-old son, Farris, and threw the child while screaming profanity and racial epithets. Farris was hospitalized for four days and under medical care for a month. Bryant filed suit on Farris’s behalf and as an individual against Livigni for invasion of privacy and for battery. Bryant filed suit against National for Livigni’s behavior on the basis of respondeat superior and for negligent retention of an employee, among other claims. A claim for negligent retention had to show that an employee’s particular unfitness established a risk of harm to others of which the employer was aware or ought to have been aware when continuing to employ the employee in a setting in which he could hurt others. At trial, evidence was presented that while an assistant manager, seven years prior to this incident, Livigni had once thrown an empty milk crate at a subordinate, injuring the subordinate’s arm. That matter was settled via workers’ compensation, and soon after, National promoted Livigni to store manager. There was also evidence that two years prior, Livigni had committed battery on his 13-year-old son when he threw the child, breaking his collarbone. In that case, Livigni pleaded guilty to aggravated battery to a child. Livigni told coworkers who were on his level or subordinate to him about the incident. A jury found in favor of Bryant. National appealed, seeking a directed verdict and moving for judgment notwithstanding the jury’s verdict. A trial court denied the motions, and National appealed. On appeal, National argued that National was not aware of Livigni’s battery on his son and the knowledge of Livigni’s coworkers should not be imputed to National.