Visitor Question

My Daughter was Injured by Aerosol Spray Inside a Store…

Submitted By: Denise (Norcross, GA )

My daughter & I were nearing the exit at a major box store and a guy sprayed a substance in the air upon his entry.

My daughter was about a foot from him, and received the brunt of it. I was getting my store receipt ready for the person at the exit doors to look at, when I heard this screaming sound and my daughter was bent over, gasping for breath, rubbing her eyes, and coughing violently.

I asked her was she choking on something, but by then I was coughing and approximately 10 or so people in the same area began to cough, cover their faces with their shirts, or run from the area.

My daughter, who could not see at this time, was escorted to the bathroom by staff and urged to throw cold water on her face. She began to hack into the sink, trying at the same time to throw cold water into her eyes. Her eyes were red and burning, nose running, and she was coughing violently and nonstop.

Customers/staff were also coughing, and one employee got two fans to circulate the air, and sprayed Lysol in the air. When she was able to leave the restroom area, my daughter filed an Incident Report, and identified the asst. mgr as the person who sprayed the substance.

He did not deny it, and another employee kept asking him why he sprayed it into the air.

He gave us his card, and told us to expect a call tomorrow from the company’s insurance company.

I believe surveillance cameras at the exit door area will reveal the ordeal the way it happened, the extent of her pain and suffering because of his stupidity and negligence, and the public embarrassment of it all.

She later complained of headaches, itchiness, lingering taste in her throat – received steroid shot; was advised by her doctor to stay home for a week, and return to the doctor’s office on Monday for a possible chest x- ray.

Should I get an attorney or wait to be contacted by the insurance company?

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.

Answer

Dear Denise,

This is a complicated case which may pose more than a few problems for you, but lets first begin with the theory of liability. This is a case of premises liability where the owner of the premises is liable for the injuries that occur there. If this was an employee, then it is a theory of respondeat superior (where an employer is actually responsible for the acts of his employees).

If this employee was negligent, then he and possibly his employer would be responsible for your injuries and that of your daughter, however he must owe you a duty and it must be foreseeable. You see, in the ordinary course of things, foreseeable injury gives rise to liability. However in this case, it is probably not foreseeable that this employee would spray a foreign substance into the air that would cause damage.

In that instance, he might be liable alone which is not always a good scenario since you would be suing him personally. In any case, you need to be persistent. Get the insurance adjuster’s information and contact them immediately to get a claim number as you are not completely at their liberty.

Many adjusters (and the insurance industry as a whole) like the wait-and-see game to determine how many claimants will “go away” by merely assuming that no contact equates to no claim.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney. Find a local attorney to give you a free case review here , or call (888) 647-2490.

Best of luck,

Published: June 21, 2010

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