K-Mart sued over pepper spray incident www.privateofficer.com

Mishawaka Indiana DEc. 24, 2007

It didn't seem that Bob Forsberg was doing anything especially risky that day in January 2006. He went to the Mishawaka Kmart about noon and bought some puzzles for his ailing wife, Shirley.But as he walked back to his car in the parking lot, trouble was brewing.Matthew E. Mark, then 29, and Tonya R. Wright, then 30, had just stuffed some new pillow cases and sheets into their shirts and walked out of the store without paying for them, Kmart loss prevention associate Steve Kruszka later told police.

The pair refused to stop when Kruszka confronted them, and they ran out to Wright's maroon 1991 Pontiac Grand Am, Kruszka told police. With Mark in the driver's seat and Wright in the front passenger's seat, Kruszka shot pepper spray into the car at both of them, Kruszka later told Mishawaka police officer Matt Porter, according to Porter's report on the incident.Wright, yelling at Mark to drive away, threw three packages of the sheets at Kruszka, Kruszka told police. Mark, with the pepper spray presumably burning his eyes, then backed the car quickly out of the parking space, his still-ajar door knocking Kruszka to the ground, police said.The car, while backing up, struck Forsberg, who happened to be walking by, knocking him and his puzzles to the pavement. The car then rolled completely over Forsberg's leg before Mark threw it into drive and sped away to a nearby Burger King, Kruszka told The Tribune.Washing off the sprayAt Burger King, Mark jumped out of the still-moving car and ran inside, where his shirt and a package of the sheets were later found in a restroom, police said. Wright jumped into the driver's seat and headed west down the McKinley Avenue strip, she would later tell police.

Mishawaka police officer Larry Burcham, having heard a radio alert about the vehicle, spotted the maroon Grand Am on the Bethel campus, just south of McKinley. A witness told police he had seen Wright run into a bathroom at the McKinley Avenue McDonald's.Porter arrived at McDonald's and saw Wright leaving the women's restroom, wearing white pants with yellowish spots that Porter believed resulted from pepper spray. She also had redness in her face, which was possibly chemical irritation from the spray, and had tried washing the spray from her face in the restroom, Porter wrote in his report.Back at Kmart, Kruszka, after having obtained the last four digits of the Grand Am's license plate number, tried to comfort Forsberg as he lay on the pavement, Kruszka told The Tribune. He said he used his cell phone to call 911, while a store manager brought a pillow out and placed it under Forsberg's head.Later, Kruszka said he visited Forsberg in the hospital, taking him a bouquet of flowers, a card and more puzzles. He said he felt bad about what had happened to Forsberg.But Kruszka declined to say whether he had used pepper spray on Mark and Wright as Mark tried to drive away."I don't think I'm at liberty to say anything right now," Kruszka said. "That's what's alleged."Seeking damagesForsberg worked hard his whole life, raised eight children and enjoyed 35 years of marriage with Shirley.At age 74, he should have been allowed to enjoy retirement, or at least take care of Shirley as she died of cancer, their children say.Instead, she had to take care of him during her last days, an injustice the children hope will be righted by a lawsuit that Bob Forsberg recently filed.The St. Joseph Circuit Court suit names defendants Kmart, Kruszka and Mark. But Forsberg won't see the case resolved. He died of congestive heart failure Nov. 20, six days after his attorney, Charles Lahey, filed suit.Lahey said the lawsuit will proceed. An estate will be opened in Forsberg's name, and his estate will replace him as the plaintiff, along with the estate of Shirley, who died in February, about 13 months after the Kmart incident.Lahey said he is confident that case law will hold that Kruszka, by pepper-spraying a shoplifting suspect as he prepared to drive across a parking lot full of bystanders, acted negligently. Kmart had a legal duty to better safeguard Forsberg while he was a customer on its property, and it is partially liable for its employee's actions, Lahey said."Bob, who had been her complete support (as she suffered from cancer), was no longer available," Lahey said. "When Bob came home, it was Shirley who had to take care of Bob. While they were alive, they were damaged by the reckless acts of this security guard."Chris Brathwaite, spokesman for Sears Holdings, Kmart's corporate parent, declined to comment on pending litigation. He also declined to speak in general about whether Kmart policies allow security personnel to use pepper spray on fleeing suspects.Chasing a shoplifter out of the store, let alone pepper-spraying him when he is behind the wheel of a vehicle, would go against best practices of the International Association of Professional Security Consultants, said Ralph Witherspoon, a Cleveland-based retail security expert."You never use more force than what is being used against you," said Witherspoon, who has served as an expert witness for both stores and people who have sued them. "There was no force used against him. They were just trying to get away. On the limited information I have, it appears to be an overreaction when his life and safety weren't being threatened."Forsberg's injuries consisted primarily of a badly broken leg, Lahey said. Kruszka said Kmart already has paid Forsberg's medical expenses. But Cheryl Hendricks Bowers, the Forsbergs' daughter, said she wasn't sure whether that was true. She said it was Bob's automobile insurance carrier that paid at least part of his medical bills.When Kruszka visited their far-east-side South Bend home shortly after Forsberg was released from the hospital, a few days after the incident, Shirley talked about their financial difficulties, partly caused by their need to replace their home's termite-damaged roof, Kruszka said.He added that he thinks the Forsberg children are the ones who are really behind the lawsuit.Robert Forsberg Jr., 54, denied that allegation."For me it's not a monetary gain," the younger Forsberg said. "It's more of justice prevailing over wrongdoing."Kruszka should not have pursued Mark and Wright so aggressively, he said."For God's sake, they had them on video camera, they had the make and model of the car, they had a partial license plate... because people can get hurt out there."I just wish my father could have enjoyed it instead of it going to his estate," he said of any judgment the lawsuit might yield. "I was hoping, if anything, that he would have some compensation to enjoy the later part of his life. Some kind of justice. But that's unfortunately been denied."

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