A Trucker Was Shot at a Dayton Truck Stop. The Guard Took the Fifth. The Family's Lawsuit Moved Forward (Sojic v. Karp)

Published October 9, 2015 · Ohio Appeals Courts

On the evening of December 8, 2013, Goren Sojic, an independent owner-operator truck driver, pulled into the Love's Travel Stop on South Edwin C. Moses Boulevard in Dayton. Inside the store, a security guard drew his gun and shot him in the arm and chest. Mr. Sojic died at the hospital. A Montgomery County grand jury declined to indict the guard. His family sued, and last month our local court of appeals issued a decision that will shape how that case, and others like it, get proven. The case is Sojic v. Karp, 2015-Ohio-3692 (2d Dist.).

No criminal charges does not mean no civil case

The first thing families in this position need to understand is that a grand jury's refusal to indict is not a finding that the shooting was justified, and it has no binding effect in a civil lawsuit. Criminal cases require proof beyond a reasonable doubt. Civil cases are decided by the greater weight of the evidence. The circumstances of this shooting are disputed, and a civil jury will be the one to decide what happened.

According to the appellate opinion, the Sojic family's lawsuit named the guard, the security companies that employed and placed him, and Love's itself. The claims include assault and battery against the guard; liability of the employers for his conduct; negligent hiring, training, retention, and supervision; negligence against Love's and the security companies; wrongful death; and a survivorship claim for Mr. Sojic's own injuries before he died.

Negligent hiring, training, and retention

The claims against the companies are the ones that make this a case worth watching. A business that puts an armed guard in a store full of customers is responsible for who it chooses, how it trains him, and whether it keeps him on after warning signs appear. A negligent-hiring claim asks: did the employer know, or should it have known through a reasonable background check, that this person was unfit to carry a weapon around the public? A negligent-retention claim asks whether there were earlier incidents, complaints, or uses of force that should have led the employer to remove him. Negligent training asks whether he was taught when force is and is not permitted.

Those claims are proven with the guard's personnel file, his training records, his prior employment history, any prior criminal history, and, critically, his own testimony about his background. Which brings us to the dispute the court of appeals had to resolve.

The guard pleaded the Fifth to everything

At his deposition in January 2015, the guard gave his name, confirmed his lawyers were present, and said no medication would prevent him from testifying truthfully. Then he invoked his Fifth Amendment privilege against self-incrimination in response to every other question. Not just questions about the shooting, but questions about his birth date, his education, his family, his prior security jobs, his training, whether he had received job-site rules from Love's, whether he had social-media accounts, and his interrogatory answers.

The family asked the trial court to compel answers. The Montgomery County judge went through the deposition question by question. He ruled that the guard could refuse to answer five questions that genuinely touched the shooting or his state of mind that night: whether he was armed at the deposition, whether he had discussed the shooting with family, friends, colleagues, or a particular individual, and whether he was on medication on December 8, 2013. He ordered the guard to answer everything else.

The Second District's ruling

The court of appeals affirmed. Its reasoning is a clear statement of how the Fifth Amendment works in a civil case.

The privilege is real, and it applies in civil proceedings. A person cannot be forced to give testimony that might incriminate him in a future prosecution, and a grand jury's no-bill does not eliminate that possibility. But the privilege is not a blanket. In the court's words, "The Fifth Amendment must be invoked on a question-by-question basis." The witness has to have reasonable cause to fear that a direct answer to that particular question could furnish a link in a chain of evidence against him, and the trial judge decides whether the fear is objectively reasonable.

Applying that test, the court held that questions about the guard's identity, family, and education were not incriminating. Questions about his prior security jobs, his training, and the rules he received from his employers had no obvious bearing on his state of mind at the moment of the shooting, which is what any prosecution would turn on. Whether he had any social-media accounts could be answered yes or no without furnishing evidence against him, though the court noted he might still be able to object to follow-up questions about specific accounts. Questions about his medical treatment and prescriptions before December 8 likewise posed no real danger.

The court also rejected the argument that the family already had enough information from the police file, fourteen other depositions, and the guard's personnel records. A party's right to discovery does not disappear because the information might be available elsewhere.

Why this matters for wrongful-death families

Defendants in serious cases sometimes try to use the Fifth Amendment as a shield against the entire civil lawsuit. Sojic confirms they cannot. The questions a family most needs answered to prove negligent hiring and retention, who trained you, where did you work before, what rules were you given, what was your history with force, are exactly the questions this ruling requires a defendant to answer. And when a defendant does properly refuse to answer a question in a civil case, the jury is generally permitted to draw an adverse inference from that silence, something a criminal jury may never do.

The decision is also a reminder of what wrongful-death damages are meant to compensate. Under R.C. 2125.02, Ohio's wrongful-death statute, a family may recover for the loss of the decedent's financial support, the loss of his services, the loss of his society and companionship, the loss of prospective inheritance, and the mental anguish of the surviving spouse, children, parents, and next of kin, together with funeral expenses. A survivorship claim separately recovers for the decedent's own pain and suffering before death. For a working truck driver with a family, the loss of support alone over a lifetime can be substantial, and it must be proven with his earnings records and the testimony of an economist.

Truck drivers are at particular risk

Owner-operators spend their nights in truck stops, rest areas, and shipper lots, often carrying cash, often alone. The businesses that profit from that traffic owe their customers reasonable security, which means competent, properly supervised personnel, not simply an armed presence. When security itself becomes the danger, the property owner and the security contractor both have to answer for it. We represent truck drivers and their families in crash cases, and the same principles of corporate responsibility apply when the harm comes from a business's own agents rather than another vehicle.

What this means for you

This decision resolved a discovery dispute. It did not decide who was at fault, and the Sojic family's case remains pending. But it tells families facing a defendant who refuses to talk that silence has limits, that the civil courts will require answers to the questions that establish a company's responsibility, and that a prosecutor's decision not to charge is not the end of accountability. If you have lost a family member to violence at a business, the evidence that proves the company's role, hiring files, training records, incident reports, surveillance video, begins disappearing immediately. Preserving it is the first job.