By Marci Piltz

Record-Courier staff writer

The Supreme Court of Ohio issued a decision Wednesday stating it will hear an appeal of a lawsuit filed by the family of an Akron man who died while being restrained after shoplifting at the Rootstown Giant Eagle.

A Portage County jury in July 2006 awarded a $1 million verdict to the family of Paul Niskanen, 31, but also noted that since they felt he was 60 percent negligent in the incident the family would receive no money from the grocery chain.

The family appealed the decision, and earlier this year the 9th District Court of Appeals tossed out the jury's verdict. Attorneys for Giant Eagle appealed to the Supreme Court of Ohio in May, and Wednesday agreed to hear the case for review. Arguments by attorneys are expected to take place later this year with a decision possible in early 2009.

During the July 2006 trial, a jury voted 6-2 that Niskanen should not have died for stealing $289 in groceries. However, they also said he contributed to his death when he struggled with Giant Eagle employees who tried to stop him.

Niskanen died in January 2004 after he left the store with a cart full of groceries. Some employees and bystanders attempted to restrain him for police, but Niskanen fought back and eventually was restrained on the ground.

Portage County Coroner Roger Marcial said Niskanen died of asphyxiation due to compression of the neck and chest. A Portage County grand jury did not indict the employees and bystanders found to have been involved in the incident.

The jury awarded Niskanen's family $500,000 in damages for pain he suffered before his death and $500,000 for the loss of his life. However, under Ohio law, if you are found to be more than 50 percent negligent in an incident, then the plaintiff in the case receives nothing.

The original wrongful death suit was filed in August 2004 by Niskanen's mother, Mary Niskanen, and named the defendants as Giant Eagle Inc. of Pittsburgh, the manager of the Rootstown store, two employees of the store and at least one other participant.

The suit alleged store employees and unidentified citizens killed Niskanen by using "deadly and unreasonable force" by putting Niskanen in an "illegal chokehold over a lengthy period of time until Niskanen was fatally asphyxiated."

Defense attorneys argued Niskanen initiated the struggle by punching a store employee while attempting to flee the store.