For The Defense, February 2012 - DRI Today

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Retail and Hospitality Shop, Stop and Roll By Jennifer M. Herrmann and Marci D. Guevara Detaining Shoplifters Without Incurring Civil Liability Guidelines for detaining suspects and recovering stolen merchandise while avoiding claims for false imprisonment. Shoplifting. Every retailer has to deal with it. Indeed, people shoplift $35 million worth of merchandise every single day. National Association of Shoplifting Prevention, Shoplifting Statistics, http://www.shopliftingprevention.org/whatnasp offers/nrc/publiceducstats.htm (last visited December 15, 2011). Unfortunately, though, shoplifters report that they only get caught one out of every 48 times that they steal. Id. If accurate, this is a daunting reality for retailers. How should a retailer respond when he or she believes that he or she has detected a shoplifter Confront the shoplifter Call the police Do nothing This article explains the statutory rights of retailers encountering suspected shoplifters. Importantly, this article explains how retailers can exercise their rights without improperly detaining suspected shoplifters and thereby opening themselves up to false imprisonment lawsuits. Most states have enacted statutes that permit retailers to detain shoppers reasonably suspected of shoplifting. Robert A. Brazener, Annotation, Construction and Effect, in False Imprisonment Action, of Statute Providing for Detention of Suspected Shoplifters, 47 A.L.R.3d 998 (1973). In general, under the statutes and the corresponding case law, for a retailer to avoid civil liability for false imprisonment of a suspected shoplifter the retailer must carry out a detention in a reasonable manner and for a reasonable time. Id. at §2[a]. The goal for a retailer, then, is to strike that balance between detaining a shoplifter and recovering merchandise with avoiding improperly detaining a shopper. To strike that balance, a retailer and the retailer’s employees should adhere to the following six guidelines. Conduct a Reasonable Investigation In many cases courts have considered a retailer’s failure to conduct a reasonable investigation an important factor in determining the reasonableness of a detention. Brazener, supra, at §6. When possible, a retailer should observe the behavior of the suspected shoplifter, question him or her, explain to the shoplifter what is happening and why, look at his or her sales receipt, and question store employees. Take the following cases on point: • A Louisiana court held a retailer liable for false imprisonment when a retailer 44 ■ For The Defense ■ February 2012 ■ Jennifer M. Herrmann is a partner in the Indianapolis office of Kightlinger & Gray, LLP. She focuses her practice in the areas of premises liability, product liability, contract law, and insurance defense litigation. Marci D. Guevara is an associate in the Indianapolis office of Kightlinger & Gray, LLP. She practices in the areas of business and corporate law as well as trucking law.
detained a shopper without questioning her or investigating the incident. Derouen v. Miller, 614 So. 2d 1304 (La. Ct. App. 1993). • An Iowa court held that detentions of customers selected at random for searches were not protected by the shoplifting statute. Zohn v. Menard, Inc., 598 N.W.2d 323 (Iowa Ct. App. 1999). • An Oregon court held that store employees were not justified in detaining a 13-year-old plaintiff based on a security guard’s description of the shoplifter as being a young, white male, around five foot three inches tall, weighing 120 pounds, with brown hair, blue eyes, and wearing blue jeans, a green jacket, a baseball cap, and the stolen new white tennis shoes, when the plaintiff was not wearing the baseball cap, he was not wearing or carrying a pair of new white shoes, and he was two blocks from the store in the opposite direction from where the shoplifters had run. Wolf v. Nordstrom, 626 P.2d 953 (Or. Ct. App. 1981). End the Detention as Soon as Possible Often a retailer will detain a suspected shoplifter, but after a quick investigation, the merchant determines that a theft has not occurred. Brazener, supra, at §7[a]. In such cases, a retailer no longer has justification for detaining a shopper and should release the shopper immediately. Id. The following cases illustrate this principle: • A Florida court held that detaining two girls momentarily and searching their pocketbooks were reasonable. Meadows v. F. W. Woolworth Co., 254 F. Supp. 907 (D. Fla. 1966). • The Eighth Circuit, applying Arkansas law, held that detaining a customer who was suspected of hiding cologne in her halter top was unreasonable after the customer proved that she had not hidden cologne in her halter top. Murray v. Wal- Mart, Inc., 874 F.2d 555 (8th Cir. 1989). • A Montana court held that once a security guard questioned a suspected shoplifter and was satisfied that she had not shoplifted, a second store employee no longer could legitimately further detain and question the shopper. Turner v. Hudson Salvage, Inc., 709 So. 2d 425 (Miss. 1998). • An Illinois court held that a retailer’s detention of a suspected shoplifter was not reasonable when the retailer detained the shopper for 15 minutes after the search was concluded when the search determined that the retailer did not have grounds to continue holding the shopper. Adams v. Zayre Corp., 499 N.E.2d 678 (Ill. App. Ct. 1986). Do Not Detain Solely for a Confession or Release from Liability The shoplifting statutes that protect a retailer from liability for false imprisonment will not protect a retailer if the retailer prolongs a detention solely either to obtain a confession or to execute a release of the store from liability relating to the detention. Brazener, supra, at §10[a]. The following case illustrates this point: • A Minnesota court held that when a retailer’s purpose in detaining a customer was not to deliver him to police but rather to have him sign a confession, the retailer was not protected from liability for false imprisonment. Altman v. Knox Lumber Co., 381 N.W.2d 858 (Minn. Ct. App. 1986). Stay Professional It is easy to imagine how a frustrated retailer may act unprofessionally when dealing with a suspected thief. However, if a retailer fails to keep his or her cool, behaves rudely, harasses a suspected shoplifter, unnecessarily embarrasses someone, or uses excessive force, the merchant may have to assume liability for an unreasonable detention. Brazener, supra, at §10[b]. Note the following cases on this point: • A Minnesota court held that excessive force was used when a 28-year-old bodybuilder security guard pinned a 73-yearold man’s arms behind him while the shopper was seated in a chair. Altman v. Knox Lumber Co., 381 N.W.2d 858 (Minn. Ct. App. 1986). • A North Carolina court held that a retailer unreasonably detained suspected shoplifters when the retailer refused to search the shoppers’ pocket books, call police, or to explain why the shoppers could not leave the store. Ayscue v. Mullen, 336 S.E.2d 863 (N.C. Ct. App. 1985). • A Texas court held that a retailer’s detention of a shopper was unreasonable when a guard refused to retrieve a shopper’s receipt from the shopper’s car, verbally taunted the shopper, refused him a cup of water, and, after police arrived, placed the shopper on the floor with the guard’s knee in the shopper’s back to exchange handcuffs with the police. Dillard Department Stores, Inc. v. Silva, 148 S.W.3d 370 (Tex. 2004). Shoplifting statutes… will not protect a retailer if the retailer prolongs a detention solely either to obtain a confession or to execute a release of the store from liability. Be Careful When Relying on Third-Party Information Retailers often detain suspected shoplifters after receiving tips from employees or other shoppers. Information from a third party alone, however, will not protect a retailer from civil liability. Brazener, supra, at §5. If a third party was unreasonable in believing that shoplifting had occurred, a court can hold a retailer liable for false imprisonment of the suspected shoplifter. Id. A retailer, then, should not detain a suspected shoplifter unless the retailer has verified the information provided by the third party, as exemplified by the following cases: • A Mississippi court held that a retailer unjustifiably detained a suspected shoplifter when the retailer detained the shopper after someone in the store told one of the clerks that he suspected the shopper of shoplifting, and then that clerk reported the information to the assistant manager of the store, who then detained the suspected shoplifter. J.C. Penney Co. v. Cox, 148 So. 2d 679 (Miss. 1963). Play It Safe Retailers wanting to do everything in their Shoplifters, continued on page 68 For The Defense ■ February 2012 ■ 45
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