1. Was there respondeat superior liability in this case?

2. Should National have reasonably known about Livigni’s violence-related problems? If so, did it act negligently in retaining him as an employee?

3. From Judge Welch’s dissent, will the Livigni case hurt the employment prospects of other individuals who have criminal records involving violence?

Mark Livigni was manager of the National Super Markets, Inc., store in Cahokia, Illinois. After drinking alcoholic beverages one evening, he stopped by the store to check the premises when he observed a 10-year-old boy’s unacceptable behavior outside the store. Livigni chased the boy to a car, where he pulled another child, a 4-year-old named Farris Bryant, from the car and threw him through the air. A multicount lawsuit was brought against National and Livigni.

A verdict was rendered against National for $20,000 under a respondeat superior theory of the battery of Farris Bryant. A verdict was also rendered against National for $15,000 in negligent retention of Livigni and for $115,000 punitive damages for willful and wanton retention. National appealed the trial court’s denial of its motions for directed verdicts on these counts.

JUDICIAL OPINION

MAAG, J.… On March 18, 1987, while off duty, Livigni stopped by the Cahokia National store. As manager, he was authorized to check and supervise the operation of the store even during off-duty hours. He was intoxicated at the time of this visit, which was a violation of National rules.… Livigni observed a young man urinating on the store wall outside the east exit doors. He hollered at the young man and followed the fleeing youth to the parked vehicle of Diana Bryant.

Livigni pulled four-year-old Farris Bryant from the automobile,…throwing the child through the air. Farris was taken to Centreville Township Hospital’s emergency room for medical treatment. Farris was admitted to the hospital and was released after four days. He was released from all medical treatment approximately one month after the battery.…

At trial, Livigni’s supervisor testified that during Livigni’s 17-year tenure with National, Livigni had been a good employee. This supervisor never received any reports from customers or employees that Livigni had “violentrelated” problems, although he was aware of a report that Livigni threw an empty milk crate which struck a coworker. Evidence was offered of two batteries committed by Livigni prior to his attack of Farris. In 1980, Livigni had a disagreement with a subordinate employee resulting in Livigni throwing an empty milk crate at the employee striking him on the arm and necessitating medical treatment.

At the time of this battery, Livigni was an assistant store manager. A workers’ compensation claim was filed against National by the injured employee. A short time after the workers’ compensation claim was resolved, Livigni was promoted to store manager by National in spite of this incident.

The second battery occurred in 1985 when Livigni, while disciplining his 13-year-old son, threw the boy into a bed causing the boy to sustain a broken collar bone. In June 1986 Livigni pleaded guilty to aggravated battery to a child and was sentenced to two years’ probation. He was still on probation at the time he attacked Farris.

Livigni testified at trial that he had not told any of his supervisors at National about the battery of his son. He admitted to telling employees of equal or lesser positions than himself about the battery. He considered these people to be his friends.… ……………………