## Facts

- A four-year-old child, Farris Bryant, and his mother sued a grocery store manager, Mark Livigni, and his employer, National Super Markets, Inc., after Livigni assaulted the child at the store.
- Livigni had risen to store manager and was authorized to stop by and check on the store even when not scheduled to work.
- Evidence showed prior violence by Livigni:
  - He threw an empty milk crate at a subordinate, injuring the subordinate’s arm; the matter was handled through workers’ compensation, and he was later promoted.
  - He pleaded guilty to aggravated battery to a child after throwing his 13-year-old son and breaking the child’s collarbone; he discussed this incident with coworkers who were on his level or subordinate.
- On the day at issue, Livigni came to the store while off duty and intoxicated.
- Seeing a child urinating near the building, he chased the child to a nearby car with multiple children.
- Mistaking Farris Bryant for the child he had seen, Livigni pulled Farris from the car, threw him, and yelled profanity and racial epithets.
- Farris was hospitalized for four days and treated for about a month.

## Issues

1. Whether sufficient evidence supported submitting negligent retention and willful and wanton retention claims against the employer to the jury.
2. Whether the employer could be held vicariously liable under respondeat superior where the manager, off duty and intoxicated, committed an intentional battery on store premises while reacting to perceived misconduct affecting store property.
3. Whether the employer knew or should have known of the employee’s dangerous propensities such that continued employment in a customer-facing managerial role created a foreseeable risk of harm.

## Decision

- The appellate court affirmed the judgment for the plaintiffs.
- The court held there was sufficient evidence to support verdicts against the employer for negligent retention and willful and wanton retention.
- The court held there was sufficient evidence for the jury to find the assault occurred within the scope of employment, supporting respondeat superior liability.
- The court affirmed denial of the employer’s motions for a directed verdict and for judgment notwithstanding the verdict under the applicable sufficiency standard.

## Legal Principles

- Negligent retention requires evidence that an employee’s particular unfitness created a risk of harm to others of which the employer knew or should have known when continuing the employment in a setting where the employee could injure others.
- Willful and wanton retention may be found where the employer’s continued retention reflects reckless disregard for the safety of others in light of known or knowable dangerous propensities.
- Under respondeat superior, an employer may be liable for an employee’s torts when the conduct is of the kind the employee is employed to perform, occurs substantially within authorized time and space limits, and is motivated at least in part by a purpose to serve the employer.
- Intentional torts can fall within the scope of employment when connected to authorized managerial functions and not so unforeseeable, given the employee’s duties and history, that liability must be denied as a matter of law.
- A directed verdict or judgment notwithstanding the verdict is improper unless the evidence, viewed most favorably to the nonmovant, so overwhelmingly favors the movant that no contrary verdict could stand.

## Conclusion

The court upheld employer liability where evidence permitted a jury to find that a manager’s violent history made harm foreseeable for negligent and willful retention, and that his off-duty, intoxicated assault of a child was sufficiently connected to protecting store property and maintaining order to fall within the scope of employment for respondeat superior purposes.


Bryant v. Livigni, 619 N.E.2d 550 (Ill. App. Ct. 1993)