For The Defense, February 2012 - DRI Today
For The Defense, February 2012 - DRI Today
For The Defense, February 2012 - DRI Today
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Retail and Hospitality<br />
Shop, Stop and Roll<br />
By Jennifer M. Herrmann<br />
and Marci D. Guevara<br />
Detaining Shoplifters<br />
Without Incurring<br />
Civil Liability<br />
Guidelines for detaining<br />
suspects and recovering<br />
stolen merchandise<br />
while avoiding claims<br />
for false imprisonment.<br />
Shoplifting. Every retailer has to deal with it. Indeed, people<br />
shoplift $35 million worth of merchandise every single<br />
day. National Association of Shoplifting Prevention, Shoplifting<br />
Statistics, http://www.shopliftingprevention.org/whatnasp<br />
offers/nrc/publiceducstats.htm (last visited<br />
December 15, 2011). Unfortunately, though,<br />
shoplifters report that they only get caught<br />
one out of every 48 times that they steal.<br />
Id. If accurate, this is a daunting reality for<br />
retailers. How should a retailer respond<br />
when he or she believes that he or she<br />
has detected a shoplifter Confront the<br />
shoplifter Call the police Do nothing<br />
This article explains the statutory rights of<br />
retailers encountering suspected shoplifters.<br />
Importantly, this article explains how<br />
retailers can exercise their rights without<br />
improperly detaining suspected shoplifters<br />
and thereby opening themselves up to<br />
false imprisonment lawsuits.<br />
Most states have enacted statutes that<br />
permit retailers to detain shoppers reasonably<br />
suspected of shoplifting. Robert A. Brazener,<br />
Annotation, Construction and Effect,<br />
in False Imprisonment Action, of Statute<br />
Providing for Detention of Suspected Shoplifters,<br />
47 A.L.R.3d 998 (1973). In general,<br />
under the statutes and the corresponding<br />
case law, for a retailer to avoid civil liability<br />
for false imprisonment of a suspected<br />
shoplifter the retailer must carry out a detention<br />
in a reasonable manner and for a<br />
reasonable time. Id. at §2[a]. <strong>The</strong> goal for a<br />
retailer, then, is to strike that balance between<br />
detaining a shoplifter and recovering<br />
merchandise with avoiding improperly detaining<br />
a shopper. To strike that balance, a<br />
retailer and the retailer’s employees should<br />
adhere to the following six guidelines.<br />
Conduct a Reasonable Investigation<br />
In many cases courts have considered a<br />
retailer’s failure to conduct a reasonable<br />
investigation an important factor in determining<br />
the reasonableness of a detention.<br />
Brazener, supra, at §6. When possible, a<br />
retailer should observe the behavior of the<br />
suspected shoplifter, question him or her,<br />
explain to the shoplifter what is happening<br />
and why, look at his or her sales receipt, and<br />
question store employees. Take the following<br />
cases on point:<br />
• A Louisiana court held a retailer liable<br />
for false imprisonment when a retailer<br />
44 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>February</strong> <strong>2012</strong><br />
■ Jennifer M. Herrmann is a partner in the Indianapolis office of Kightlinger & Gray, LLP. She focuses her<br />
practice in the areas of premises liability, product liability, contract law, and insurance defense litigation.<br />
Marci D. Guevara is an associate in the Indianapolis office of Kightlinger & Gray, LLP. She practices in the<br />
areas of business and corporate law as well as trucking law.