Judge dismisses wrongful death suit against Kroger

A federal judge has dismissed a wrongful death lawsuit brought against Kroger Co. by the mother of an Indianapolis man who was fatally shot in 2011 by a store manager during what police determined was an attempted robbery.

Judge Tanya Walton Pratt of the U.S. District Court, Southern District of Indiana, dismissed the suit Wednesday, ruling that the Cincinnati-based supermarket chain could not be held accountable for the death of Jeremi Atkinson.

Toni Atkinson filed the suit in July 2012 on behalf of her son, who was 26 when he was shot Dec. 26, 2011, at the Kroger store at 5025 W. 71st St.

The suit charged that Kroger was negligent for failing to supervise its employees and enforce its safety polices, which prohibit employees from carrying firearms while on duty.

But the judge disagreed, siding with Kroger’s argument that it had no legal obligation to institute or enforce the policy that store manager Elijah “Levi” Elliott didn't follow.

“Mr. Elliott secretly carried a concealed gun without Kroger’s consent, and testified that he used the gun in self-defense for his own protection,” Walton Pratt wrote in her decision. “Simply put, there is no record of evidence that Kroger willfully and wantonly caused harm to Mr. Atkinson.”

Kroger spokesman John Elliott said the company is pleased with the decision.

“The Kroger Co. places the highest possible priority on the safety of our associates and our customers,” Elliott said in an email. “We invest heavily in a variety of security systems and procedures in our stores. Kroger cooperated fully with all legal proceedings related to the original police investigation and the subsequent lawsuit.”

Police, who spoke with 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 to 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 hoodie during the incident, but police did not say if he was carrying a firearm. He was taken to Wishard Hospital in critical condition and died several hours later.

Elliott, 24 at the time, resigned from Kroger about a month later.

Attorney Jon C. Abernathy of Indianapolis based Goodin Abernathy LLP, who represented Toni Atkinson, did not return phone calls seeking comment on the decision.