The mother of an Indianapolis man fatally shot in December by a Kroger manager during what police determined was an attempted robbery is suing the supermarket chain for wrongful death.
Toni Atkinson filed her lawsuit July 13 in federal court in Indianapolis on behalf of her son, Jeremi Atkinson, 26, who was shot at the Kroger store at 5025 W. 71st St. on Dec. 26.
The Marion County Prosecutor’s Office in early January ruled the shooting by Kroger manager Elijah “Levi” Elliott to be justified under Indiana law to prevent a forcible felony. Elliott, 24, resigned from Kroger about a month later.
The wrongful death suit charges that the Cincinnati-based Kroger Co. was negligent for failing to supervise its employees and enforce its safety policies, which prohibit employees from carrying firearms while on duty.
“As a direct and proximate result of Kroger’s negligence,” the suit says, “Atkinson is deceased and the plaintiff has suffered harm.”
The complaint acknowledges that an “altercation” occurred between Atkinson and a Kroger employees but makes no mention of the attempted robbery.
Police, who talked to witnesses and reviewed surveillance video, said Atkinson was shot after he forced an unarmed female security guard into the store’s office by putting an object in her back and placing her in a headlock. When Elliott responded to cries for help, Atkinson released the woman and charged at Elliott, who shot Atkinson.
Atkinson was wearing a mask and and a hoodie during the incident, but police did not say if was carrying a firearm. He was taken to Wishard Hospital in critical condition and died several hours later.
Kroger spokesman John Elliott said this week that the company was unaware of the lawsuit.
“Thus, our legal department has not had an opportunity to review the filing,” he said in an e-mailed statement. “Until we complete that internal review and possibly consult with additional legal counsel, which could be a lengthy process, we are not able to comment publicly on the suit.”
Atkinson was convicted in 2009 of armed robbery for holding up a Subway restaurant on North Keystone Avenue. He was sentenced to four years in prison and was let go on work release before a warrant was issued for his arrest in February 2011 for violating terms of his release, prosecutors said.
His mother is represented by Jon C. Abernathy of the Indianapolis law firm Goodin Abernathy LLP. Abernathy said he had no comment on the lawsuit.
Drew Miroff, a partner at Ice Miller LLP whose practice includes premises liability and risk management issues, said the case will be difficult to win.
“A violation of a company policy is not necessarily negligence,” he said. “They’re going to have to prove that there was a failure to supervise their employees by not enforcing the policy.”