Store Liability When Chemical Spray Injures a Bystanding Customer

Attorney Answer

Yes, you can sue. A store owes its customers ordinary care, and spraying a chemical irritant into an area with customers in it — without warning anyone to move back — is exactly the kind of conduct that duty covers.

Cal. Civ. Code § 1714(a) states California's general rule: everyone is responsible for injury caused to another by their want of ordinary care in the management of their person or property. Because the employee was acting in the course of employment, the store is liable for that conduct through respondeat superior, which is what matters practically — the business, not the employee, is the one with insurance.

The negligence here is not only the spraying. It is the failure to warn or clear bystanders when the employee knew customers were nearby. Your respiratory reaction being more severe than an average person's does not reduce the claim; a negligent defendant takes the injured person as they find them.

California is a pure comparative fault state. If a jury found you partly responsible — for example by moving toward the confrontation rather than away — your damages would be reduced by that percentage, but not eliminated. You are not barred from recovering the way you would be in a contributory negligence state.

What you can do

1. Send the store a written evidence preservation letter today asking it to preserve all surveillance video of the incident, and get it to the manager and the corporate office. Store footage is routinely overwritten in as little as two to four weeks, and it is the whole case. 2. Report the incident to the store in writing and ask for a copy of the incident report. 3. Get medical care and make sure the records state the cause — chemical exposure — and note any respiratory device or treatment that failed or was needed. 4. Photograph the location, and write down what the employee said and did and whether any warning was given. 5. Get names and numbers of other customers who were there. Police may also have responded to the shoplifting call; request that report. 6. Do not give a recorded statement to the store's insurer or sign a release before your treatment and prognosis are settled.

⏱ Time limits apply. A personal injury negligence claim in California must be brought within two years under Cal. Code Civ. Proc. § 335.1, running from the date of injury. Your exact deadline depends on your specific facts.