The Georgia Court of Appeals revived a lawsuit stemming from the 2015 murder of a contractor who saw someone in his truck in a Kroger grocery store parking lot and was shot when he ran up to investigate. 

A Fulton County judge ruled last year that the dead man, Joshua Richey, voluntarily placed himself in harm's way by approaching the truck and dismissed the case on summary judgment.

But the appeals opinion said a jury could conclude Richey had no way of knowing the person in his truck might be dangerous and "did not inject himself into imminent danger" by going to investigate.

"There were a number of arguments raised, but they ultimately ruled on the narrow issue of whether he was joining an affray, or mutual combat," said Hadden Law Firm principal John Hadden, who represents the dead man's wife along with Pete Law, Michael Moran and Denise Hoying of Law & Moran.

Their firm has a history with Kroger: Last year, a jury awarded $70 million to a Law & Moran client shot and paralyzed during a robbery at a Kroger on Moreland Avenue in Atlanta.  

"There are cases that go both ways as to what the knowledge of the plaintiff has to be as far as exercising ordinary care," said Hadden. "We argued that, under the circumstances, what Mr Ritchey did was logical. We had a Kroger executive who said he didn't think Mr. Ritchey had done anything wrong."

The defendants are represented by Gray, Rust, St. Amand, Moffett & Brieske partners Matt Moffett and Jeff Wasick; and Copeland, Stair, Kingma & Lovell partners Charles McDaniel Jr. and Ryan Kolb.

Moffett said they were "carefully reviewing and considering the decision of the Court of Appeals." 

The murder happened at the Kroger on Ponce de Leon Avenue. The store once enjoyed macabre fame as the "Murder Kroger," so called after a woman was killed in the parking lot in 1991 and a body was found in car there in 2002. 

The appellant brief quoted the trial judge, Fulton County State Court Judge Wesley Tailor, as saying "Murder Kroger. That's what everybody knows it. I grew up in Atlanta and everybody knows it as murder Kroger. I get it."

The store has since been razed and replaced with a new "Beltline Kroger" near the Ponce City Market.

In 2015, Richey and another man, Jason Shelton, were working for a construction company clearing debris on Kroger's property behind the store.

Their trucks were parked in the lot when they saw a black car park pull next to Richey's. They then saw a man behind the wheel of his truck.

Richey and Shelton both jumped down and ran toward the trucks. Richey got there first and slapped on the driver's side window.

A man later identified as Damarius Thompson shot through the window, killing Richey, while Shelton dove for cover behind his truck. 

Thompson was later convicted of murder for shooting Richey, and other crimes, and is serving two life sentences without parole. 

Richey was married with four children, and in 2016 his wife Kathy sued Kroger and its security company, Norred & Associates, for negligent security. 

The complaint argued that the store was in a known high-crime area and that Kroger was aware of several other attacks, shootings and robberies at its metro-area stores. 

Tailor denied defense motions to dismiss, and each defendant filed motions for summary judgment arguing, among other things, that Richey "voluntarily joined an affray" by confronting Thompson instead of calling the police. Tailor agreed in 2019.

According to a transcript of the oral arguments, Tailor observed that the issue "needs to be probably addressed at the appellate level," and added that he would encourage just that "because I think this will help clarify the law in this regard. So I'll be happy to see what happens." 

Court of Appeals Judge M. Yvette Miller.

In reversing Tailor, Court of Appeals Judge Yette Miller wrote that there was no evidence to conclusively determine that Richey failed to exercise "ordinary care" for his safety. 

"First, there is no evidence in the record that Richey saw Thompson with a weapon or otherwise observed or knew that he was armed," Miller said.

"Second, while we can glean that Richey ran toward Thompson after seeing him inside his truck without permission, Richey did not inject himself into an ongoing fight or situation which was violent, combative, or assaultive, such that he had a clear and palpable knowledge of the risk of being physically harmed."

"Third, the record does not show that Richey had any prior interaction or familiarity with Thompson which would have revealed that Thompson intended to harm him" or to fear a violent attack. 

Because a reasonable jury could conclude that Richey did not knowingly subject himself to harm, "the summary adjudication of this case would usurp the province of the jury," said Miller, writing with the concurrence of Judges Amanda Mercier and Christian Coomer.

Hadden, an appellate specialist, said he was impressed with the defense team's work on the appeal.

"They did an outstanding job of briefing this case," he said. "I've done a lot of these, and this is one of the most well-briefed cases I've handled."