INDIANAPOLIS — The Court of Appeals for Indiana recently ruled that Costco is not liable in relation to an overdose of an employee that occurred in January 2020.

According to an opinion filed earlier this month, the court ruled that Costco did not negligently hire or retain an employee who had caused the death of 28-year-old Maxwell Timbrook by selling him the drugs he overdosed on. This comes after Timbrook’s father, Bobby Timbrook, filed a civil lawsuit against the company earlier this year.

Kurt Russell, an employee at Costco, sold Maxwell Timbrook the drugs that caused him to overdose in January 2020. Officials said at the time Maxwell Timbrook died due to an overdose of “acute alprazolam, trazodone, tramadol, and fentanyl intoxication.”

Russell was sentenced to 25 years in prison in relation to this incident. According to previous reports, Russell was charged with dealing a controlled substance resulting in death.

In his civil lawsuit against Costco, Bobby Timbrook claimed that the business “negligently hired or retained an employee who had caused Maxwell’s death.” However, the appeal documents said that Bobby Timbrook conceded that Russell’s sale of the controlled substances that caused Maxwell Timbrook’s death did not occur on Costco’s premises or while using Costco’s personal property.

This concession caused the trial court to initially enter a summary judgment in favor of Costco. The appeals court said that the original decision was “correct as a matter of Indiana law.”

In the appeal, Bobby Timbrook also emphasized there was “foreseeability to Costco that Russell would engage with Maxwell and sell controlled substances to Maxwell that could cause death.” According to the documents, Maxwell Timbrook previously overdosed in 2019 on drugs provided by Russell on Costco’s premises. Costco helped him obtain access to drug rehabilitation but reportedly did not fire Russell, stating at the time they would keep the two apart, which did not ultimately happen.

“We have no qualms with Timbrook’s assessment of foreseeability, but foreseeability alone is insufficient to demonstrate Costco’s liability here,” the appeal read. “…To hold an employer liable for an employee acting outside the scope of his employment, a plaintiff must demonstrate that the employer had some ability to control the employee at the time in question.”