Another former employee of the Chesapeake Walmart at which six people were killed in November has filed a lawsuit for $25 million against the retail giant, accusing its management of repeatedly ignoring complaints that the shooter was dangerous.
Sarah Merlo was shot seven times, according to her complaint filed this month in Chesapeake Circuit Court, including once in both her face and neck, and twice in the upper chest while hiding behind a table on her hands and knees. She describes the shooter, Andre Bing, who killed himself after his shooting spree, finding her hiding and pointing his gun at her head. She shouted “Please, Andre, no!, but Bing smiled as he pulled the trigger, initially hitting her in the face and continuing to fire after she survived the first shot.
Merlo says this was the culmination of years of harassment and working in a toxic environment under Bing’s authority, whom she said had a “personal dislike, hatred and/or animus” against her. The complaint details the extent of his specific targeting of Merlo in an effort to show that her injuries were sustained due to personal motivations, not because she happened to be a Walmart employee.
This distinction has implications for whether Walmart is liable for damages associated with the killings or whether the survivors, victims and their families are only entitled to workers’ compensation. Three other surviving employees — Briana Tyler, James Kelly, and Donya Prioleau, along with the estate of Randall Blevins have sued Walmart on similar grounds. Only Tyler’s case is currently moving forward.
Kelly, Prioleau and the Blevins estate dropped their lawsuits earlier this year, though their attorneys previously indicated to The Virginian-Pilot that they plan to refile.
“Before shooting Sarah, Bing specifically recognized another individual who he told to leave the area so that she would not be shot or injured,” reads Merlo’s complaint. “By allowing this individual to escape unharmed, Bing demonstrated that his attack and attempt to kill Sarah was due to personal animus he held against her rather than being based on a condition inherent to Sarah’s employment.”
“His decisions on who to shoot were motivated, at least in part, by his personal animus toward that individual fueled by his longstanding paranoia and delusions,” the complaint continues.
Walmart argues that because the shooting was in the store, the employees and Bing had access to the break room where the shooting began, and the victims being there because they worked at Walmart, their injuries should be covered by workers’ compensation which would preclude them from seeking further damages. The store has not yet replied to Merlo’s filing, but explained their position in response to Tyler’s complaint filed in April.
“Ms. Tyler was working in a location where she was expected to be at the time Bing opened fire on his co-workers, and therefore her injuries occurred in the course of her employment,” Walmart said.
Merlo says that Walmart had known about Bing’s behavior for more than two years but failed to take action. Merlo reported his “abusive conduct and sadistic and violent comments” but said the store’s response to hers and others’ complaints was “utterly dismissive of their concerns and completely supportive of Bing’s abusive conduct.”
Among her complaints were that the shooter would tell her how he liked to kill animals and described what the dead animal carcasses smelled like. He also allegedly subjected her to difficult tasks under tight deadlines knowing she wouldn’t be able to complete them in time, then criticized her for not completing the tasks.
“On the evening of Nov. 22, Bing’s known and foreseeable propensities for violence came to fruition,” the complaint reads.
The complaint charges Bing’s estate with battery and willful and wanton negligence, and charges Walmart with negligent retention.
J.H. “Rip” Verkerke, a University of Virginia professor specializing in labor law, told The Pilot earlier this year that most U.S. jurisdictions make exceptions in their workers’ compensation statutes for “intentional tort” — a wrongful act leading to civil liability — the Virginia Supreme Court and General Assembly have not embraced this. Instead, Virginia’s lower courts have held that “injury by accident” includes violent assaults like Bing’s, so current law leans toward a conclusion that the employees’ injuries “fall within the Virginia Act’s coverage of accidental injuries arising out of and in the course of employment.”
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