Memorandum
To: New Associates Privileged & Confidential
Attorney Work Product
From: Senior Attorney Liston
Date: November 1, 2022
Re: Incident at Save-A-Lot Store on December 5, 2021
_____________________________
Our law firm St. Clair, Chester, and Euclid is based in Cleveland, Ohio. Our client, Save-A-Lot, Inc., owns and operates a number of variety stores, which are commonly referred to as Save-A-Lots. On December 5, 2021, an incident occurred at one of the stores. Walter Chambers, whom Save-A-Lot employs as a security guard, detained a customer that he suspected of shoplifting. Save-A-Lot is now concerned because the customer, whose name is Marsha Holt, has brought an action for false imprisonment.
Using only the material provided, please write an objective memorandum or law on the likely outcome of Holt’s claim for false imprisonment including our client’s defense of shopkeeper’s privilege. Our best argument under false imprisonment looks to be the issue of confinement. If that fails, we should be able to argue shopkeeper’s privilege. Therefore, focus your memo on those two issues.
This is a closed memo. This means you should only write your memo based on the facts you learn from the facts provided, the Ohio Detention of Shoplifters statute, and the included three Ohio cases.
DO NOT PERFORM ANY ADDITIONAL LEGAL RESEARCH TO COMPLETE THIS ASSIGNMENT.
The complete Memo is due by 5 pm on Monday, December 05, 2022 on Canvas.
Closed Memo Assignment Materials
- The complete set of facts
- The Ohio Detention of Shoplifters statute
- Ohio Rev. Code Ann. § 2935.041
- Three cases (in drafting this assignment, you are limited to the following three cases, which are attached below.)
- Kalbfell v. Marc Glassman, Inc., 2003 WL 21505264 (Ohio App. 7th Dist. 2003)
- Hodges v. Meijer, Inc., 717 N.E.2d 806 (Ohio App. 12th Dist. 1998)
- Stoffel v. Big Bear Stores Co., 1991 WL 99645 (Ohio App. 4th Dist. 1991)
The complete facts are these:
Chambers was wearing his regular outfit for working as a security guard: Save-A-Lot polo shirt with the store’s logo on the front and with the word “security” printed on the back, dark trousers, and dark shoes.
Shortly before noon, Chambers observed Holt behaving in a manner that caught his attention. She entered the store and seemed to be hurriedly moving about, picking up small items, looking around, and then replacing them. She seemed nervous. These actions—moving around quickly, picking a lot of things up and putting them down, seeming to be in a rush, and looking nervous—are, to Chambers, all indicators of a possible shoplifter. As a result, he decided to pay close attention to her.
When Chambers saw Holt head for the door but then veer towards the jewelry section, he watched from a discrete distance as she tried on several necklaces. At one point he noticed that she had at least four or five necklaces around her neck. He then saw her take all but one of the necklaces off and quickly head for the door. Chambers did not recall Holt having a necklace on when she arrived, so he quickly followed her.
As Holt left the store, Chambers called out “Miss, Miss,” but she did not stop. Chambers took a few quick steps, and tapped Holt on her right shoulder blade to get her attention. Holt stopped, whirled around with a stricken look on her face, and said what sounded like “What” but it was not clear and sounded a bit strange.
Chambers does not recall precisely whether he identified himself as a security guard. Chambers does recall saying “please come with me young lady.” Holt seemed upset, but she complied and accompanied Chambers to the designated office for shoplifting inquires. Chambers walked behind Holt and directed her to the office by touching her elbow once or twice. The office is probably about 10 by 16 feet, and is near to and visible from the sales floor.
In the office, Chambers asked Holt whether she had forgotten to pay for the necklace. She claimed it was hers, but conceded it was a gift and may have been purchased from a Save-A-Lot. Chambers asked for the necklace and Holt provided it to him for inspection. Chambers then said it looked like a Save-A-Lot necklace and asked to look at her purse. Holt handed Chambers the purse. Chambers found no merchandise or merchandise label in the purse. Although, he did ask for her driver’s license and after gaining her permission, he copied it and returned it with the purse.
Chambers then took the necklace and went to look for the jewelry sales clerk who was unavailable as she was on a half-hour break. Chambers decided to wait for the jewelry sales clerk to get back from her break.
Chambers returned the necklace back to the office, placed it on the desk and advised Holt it would be a few minutes. Chambers does not recall if he asked her to stay where she was, but she did not ask whether she could leave.
Chambers returned to the sales floor to await the clerk. During this time, Holt peered out of the office door occasionally and Chambers may have raised his index finger once or twice to indicate it would be a few more minutes. Upon the clerk’s return from her break thirty minutes later, Chambers returned to the office, took the necklace and confirmed the necklace was from Save-A-Lot but learned that it was no longer in the store’s inventory. Chambers then returned the necklace to Holt, apologized for the misunderstanding, and advised Ms. Holt she was free to go. In total, Ms. Holt was in the office for about forty-five minutes.
Again, your assignment is to please draft an office memo on the likely outcome of Holt’s claim for false imprisonment including our client’s defense of shopkeeper’s privilege. Our best argument under false imprisonment looks to be the issue of confinement. If that fails, we should be able to argue shopkeeper’s privilege. Therefore, focus your memo on those two issues.
I have provided you with three cases. First, Kalbfell v. Marc Glassman, Inc., which details the elements of false imprisonment including how the courts decide confinement. Stoffel v. Big Bear Stores Co. and Hodges v. Meijer, Inc., are the other two cases which should help clarify the courts’ analysis of key elements of shopkeeper’s privilege including probable cause and reasonable manner and time. All three cases and the shopkeeper’s privilege statute are available on Canvas. The complete Memo is due by 5pm on Monday, December 5, 2022.
2935.041 Detention of shoplifters; rights of museums and libraries; rights of motion picture facility owner or lessee
(A) A merchant, or an employee or agent of a merchant, who has probable cause to believe that items offered for sale by a mercantile establishment have been unlawfully taken by a person, may, for the purposes set forth in division (C) of this section, detain the person in a reasonable manner for a reasonable length of time within the mercantile establishment or its immediate vicinity.
(B) Any officer, employee, or agent of a library, museum, or archival institution may, for the purposes set forth in division
(C) of this section or for the purpose of conducting a reasonable investigation of a belief that the person has acted in a manner described in divisions (B)(1) and (2) of this section, detain a person in a reasonable manner for a reasonable length of time within, or in the immediate vicinity of, the library, museum, or archival institution, if the officer, employee, or agent has probable cause to believe that the person has either:
(1) Without privilege to do so, knowingly moved, defaced, damaged, destroyed, or otherwise improperly tampered with property owned by or in the custody of the library, museum, or archival institution; or
(2) With purpose to deprive the library, museum, or archival institution of property owned by it or in its custody, knowingly obtained or exerted control over the property without the consent of the owner or person authorized to give consent, beyond the scope of the express or implied consent of the owner or person authorized to give consent, by deception, or by threat.
(C) An officer, agent, or employee of a library, museum, or archival institution pursuant to division (B) of this section or a merchant or employee or agent of a merchant pursuant to division (A) of this section may detain another person for any of the following purposes:
(1) To recover the property that is the subject of the unlawful taking, criminal mischief, or theft;
(2) To cause an arrest to be made by a peace officer;
(3) To obtain a warrant of arrest;
(4) To offer the person, if the person is suspected of the unlawful taking, criminal mischief, or theft and notwithstanding any other provision of the Revised Code, an opportunity to complete a pretrial diversion program and to inform the person of the other legal remedies available to the library, museum, archival institution, or merchant.
(D) The owner or lessee of a facility in which a motion picture is being shown, or the owner’s or lessee’s employee or agent, who has probable cause to believe that a person is or has been operating an audiovisual recording function of a device in violation of section 2913.07 of the Revised Code may, for the purpose of causing an arrest to be made by a peace officer or of obtaining an arrest warrant, detain the person in a reasonable manner for a reasonable length of time within the facility or its immediate vicinity.
(E) The officer, agent, or employee of the library, museum, or archival institution, the merchant or employee or agent of a merchant, or the owner, lessee, employee, or agent of the facility acting under division (A), (B), or (D) of this section shall not search the person detained, search or seize any property belonging to the person detained without the person’s consent, or use undue restraint upon the person detained.
(F) Any peace officer may arrest without a warrant any person that the officer has probable cause to believe has committed any act described in division (B)(1) or (2) of this section, that the officer has probable cause to believe has committed an unlawful taking in a mercantile establishment, or that the officer has reasonable cause to believe has committed an act prohibited by section 2913.07 of the Revised Code. An arrest under this division shall be made within a reasonable time after the commission of the act or unlawful taking.
(1) “Archival institution” means any public or private building, structure, or shelter in which are stored historical documents, devices, records, manuscripts, or items of public interest, which historical materials are stored to preserve the materials or the information in the materials, to disseminate the information contained in the materials, or to make the materials available for public inspection or for inspection by certain persons who have a particular interest in, use for, or knowledge concerning the materials.
(2) “Museum” means any public or private nonprofit institution that is permanently organized for primarily educational or aesthetic purposes, owns or borrows objects or items of public interest, and cares for and exhibits to the public the objects or items.
(3) “Audiovisual recording function” and “facility” have the same meaning as in section 2913.07 of the Revised Code.
(4) “Pretrial diversion program” means a rehabilitative, educational program designed to reduce recidivism and promote personal responsibility that is at least four hours in length and that has been approved by any court in this state.
CREDIT(S)
(2011 H 86, eff. 9-30-11; 2003 H 179, eff. 3-9-04; 1978 H 403, eff. 7-4-78; 1969 H 49; 131 v H 395; 127 v 765)
R.C. § 2935.041, OH ST § 2935.041
Current through File 132 of the 134th General Assembly (2021-2022).
| End of Document | © 2022 Thomson Reuters. No claim to original U.S. Government Works. |
1991 WL 99645
Only the Westlaw citation is currently available.
CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY.
Court of Appeals of Ohio, Fourth District, Washington County.
Ida Mae STOFFEL, Plaintiff-Appellant,
v.
BIG BEAR STORES COMPANY, et al., Defendant-Appellees
No. 90 CA 21.
|
June 4, 1991.
L. Kent Reithmiller, Woodsfield, for appellant.
Paul T. Theisen, Marietta, Bradley Hummel, Columbus, for appellees.
DECISION
GREY, Judge.
*1 This is an appeal from a judgment of the Washington County Common Pleas Court. The court granted summary judgment in favor of Big Bear Stores and its manager Donald Ray Harris on a complaint of False Imprisonment filed by Ida Mae Stoffel. We affirm.
On February 4, 1989 Stoffel was shopping at the Big Bear Store in Marietta. She contended that as she was pushing her cart along a rack of merchandise a box of Herbal Norforms Deodorant Suppositories fell into her purse without her knowledge. A Big Bear employee stated she saw Stoffel put that box in her purse. After Stoffel went through the checkout but before she left the store, Donald Ray Harris, the store manager, stopped Stoffel. When Harris looked in Stoffel’s purse he discovered the box of suppositories. The register receipt revealed that Stoffel had not paid for them.
Some Big Bear employees plus Harris took Stoffel to another part of the store and detained her for approximately thirty minutes during which time her purse was searched and the Norforms were found. The police were called. Stoffel was arrested and charged with shoplifting.
Stoffel filed a complaint against Big Bear and Harris alleging that she was wrongfully detained in an unreasonable manner and for an unreasonable length of time.
Both Big Bear and Harris answered and filed Requests for Admissions and First Set of Interrogatories. Subsequently, they moved for Summary Judgment supported by affidavits from Donald Harris and another Big Bear employee, Rhonda Neese.
Stoffel filed her Response to the Requests for Admissions as well as Memorandum Contra with an affidavit attached to the Summary Judgment motion.
The trial court granted Summary Judgment to Big Bear and Harris. Stoffel appeals and assigns one error.
“The trial court erred in granting defendant’s motion for summary judgment, there being a dispute of facts upon which reasonable minds may have differed.”
Civ.R. 56(C) provides in pertinent part:
“Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * *
“A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.”
Stoffel filed a complaint sounding in false imprisonment. She alleged that her detention by the Big Bear Store and Donald Harris after the suppositories were discovered in her purse, was unreasonable.
In support of her allegation, Stoffel cites R.C. 2935.041(A) which provides:
“(A) A merchant, or his employee or agent, who has probable cause to believe that items offered for sale by a mercantile establishment have been unlawfully taken by a person, may, for the purposes set forth in division (C) of this action detain the person in a reasonable manner for a reasonable length of time within the mercantile establishment or its immediate vicinity.” (Emphasis added)
*2 Stoffel asserts that the trial court erred in granting Summary Judgment to appellees because there was a genuine issue of fact concerning the reasonableness of the time and the manner of her detention at Big Bear. Stoffel also asserts that there is a genuine issue of fact concerning how the box of suppositories got into her purse.
We will address Stoffel’s latter assertion first. The sole issue before this court is whether Stoffel was detained in a reasonable time and manner so as to be in compliance with R.C. 2935.041. Thus, how the box of suppositories ended up in Stoffel’s purse has no bearing upon whether the appellees’ detaining Stoffel was reasonable in time and manner.
In determining what factual matters will preclude the rendering of summary judgment the Ohio Supreme Court held in Perez v. Scripps-Howard Broadcasting Co. (1988), 35 Ohio St.3d 215:
“Moreover, only factual disputes that might affect the outcome of the suit under the governing law will preclude the entry of a summary judgment.”
In this appeal Stoffel raises many factual issues which she asserts should have precluded summary judgment. Included are: as above whether the box fell in her purse, whether she voluntarily signed the statement she signed admitting her guilt and whether she was or was not permitted to contact her son. None of these issues are germane to the sole issue before this court and would not, if they were resolved, affect the outcome of Stoffel’s false imprisonment action.
In her Response to Appellees’ Request for Admissions, Stoffel admitted that she entered Big Bear, that the suppositories were not in her purse when she came into the store, that she did not pay for the suppositories, that they were found in her purse and that she gave the suppositories back to Donald Harris at his request. Thus, it is clear that pursuant to R.C. 2935.041 the appellees did indeed have probable cause to detain Stoffel.
False imprisonment occurs when a person is detained and when that detention is unlawful. Mullins v. Rink’s (1971), 27 Ohio App.2d 45. In Mullins a customer in a department store was stopped and her purse was searched. A pair of hose was found in her purse but it was later discovered that she had paid for the hose. The Mullins court determined that there was no false imprisonment because an Ohio statute permitted a store manager to reasonably detain that customer.
The facts below are similar. Stoffel had a box of suppositories in her purse which were discovered by appellee Harris. She had not paid for that item. R.C. 2935.041 permits a store manager to detain a customer under suspicion of shoplifting. Harris did just that.
The question now remains, was that detention accomplished in a reasonable manner and for a reasonable length of time. The question of reasonableness has been decided by other appellate districts in Ohio.
In Risner v. Elder-Beerman, et. al. (Dec. 18, 1985), Montgomery App. No. 9028, unreported, Risner was detained by employees of the Elder-Beerman Store when some stolen gift certificates were cashed at another Elder-Beerman store. She was questioned for forty-five minutes about her participation in the theft of those certificates. The Second District held that being detained for forty-five minutes of questioning was not unreasonable and not violative of R.C. 2935.041.
*3 Appellees cite cases from various state courts which have treated the issue of the reasonableness of the time and manner of detention. Each case was decided on the existing facts. The cases cited are persuasive, but as in any case before this court, we must look to the facts presented to the trial court to determine if its grant of summary judgment was justified.
The reasonableness of the length of time or the manner in which an individual is detained is usually a question of fact to be determined by a jury. White v. Stiegelmeyer, et. al. (Feb. 20, 1986), Franklin App. No. 85 AP-845, unreported. It would be difficult, indeed almost impossible for this court or any court to hold that a certain period was reasonable, but a longer period of time was unreasonable. What is reasonable depends on the facts, and the length of the suspect’s detention is only one factor in determining reasonableness. We decline to hold that any period of time is reasonable or unreasonable per se. If this is to be done, it should be done by the legislature as was done for example in W.Va.Code Section 61-3A-4, 30 minutes.
Summary judgment is proper if there is no genuine issue of material fact and when the evidence is construed most strongly in favor of the non-moving party, reasonable minds must be able to come to but one conclusion, making the moving party entitled to judgment as a matter of law. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64.
A corollary to the rule in Harless, supra, is that a party may not rely on the bare assertions in the complaint but must on summary judgment assert facts which show the existence of a genuine issue of fact. Riley v. Montgomery (1984), 11 Ohio St.3d 75. For example, one cannot simply claim the statute of limitations has not run; one must assert facts showing why it has not run. The reason for the rule in Riley is demonstrated here on the question of reasonableness, which of course is a vague concept. Appellee filed a motion for summary judgment supported by affidavits which said appellant was detained until a report could be made out and then the police were called. It was incumbent on appellant to assert by affidavit or otherwise some set of facts from which a jury might conclude that this detention was not reasonable. All there is here is the allegation that it took half an hour and was not reasonable. There is no allegation of facts on why it was unreasonable, and so appellant’s affidavit is not sufficient to create a question of fact. Without some allegation as to why the detention was unreasonable, how could a jury find that it was unreasonable?
The trial court properly granted appellees’ Motion for Summary Judgment. Stoffel’s assignment of error is not well taken and is overruled. The judgment of the Common Pleas Court is affirmed.
STEPHENSON, P.J., concurs in judgment & opinion
HARSHA, J., concurs in judgment only.
Not Reported in N.E.2d, 1991 WL 99645
| End of Document | © 2019 Thomson Reuters. No claim to original U.S. Government Works. |
129 Ohio App.3d 318
Court of Appeals of Ohio,
Twelfth District, Butler County.
HODGES et al., Appellants,
v.
MEIJER, INC., Appellee.
No. CA97–11–222.
|
Decided Aug. 10, 1998.
Store customer who was mistakenly stopped for shoplifting sued the store for false imprisonment and defamation. The Court of Common Pleas, Butler County, granted summary judgment in favor of store. Customer appealed. The Court of Appeals, William W. Young, P.J., held that: (1) genuine issues of material fact precluded summary judgment on customer’s false imprisonment claim, and (2) customer failed to establish element of publication for defamation claim.
Affirmed in part, reversed in part and remanded.
Powell, J., dissented with opinion.
Procedural Posture(s): On Appeal; Motion for Summary Judgment.
***Headnotes Removed.
**808 *320 Davidson Law Offices, David T. Davidson and Sara E. Chesher, Hamilton, for appellants.
Green & Green, Jane M. Lynch and Bobbie L. Flynt, Dayton, for appellee.
WILLIAM W. YOUNG, Presiding Judge.
Plaintiff-appellant, Alladean Hodges, appeals the Butler County Court of Common Pleas decision granting the motion of defendant-appellee, Meijer, Inc., for summary judgment on her false imprisonment and defamation claims.
Appellant’s deposition reveals that on May 20, 1996, appellant entered the Hamilton Meijer store. She intended to do some grocery shopping and hoped to *321 replace two Hoover vacuum sweeper belts. She brought her used belts in an Elder–Beerman bag with her for this purpose. Appellant showed the belts to a Meijer employee in the vacuum cleaner department. He advised her that Meijer did not carry them and suggested another store. Appellant continued with her shopping; at the end of an aisle she decided to put the bag containing the belts into her purse as she was afraid she might lose them. At that moment, appellant did not see the employee she had spoken with earlier.
After purchasing her groceries, but before exiting the store, appellant was approached by two Meijer employees. One stood in front of her and one stood in back. They said, “We’re going to take you back into the room.” Appellant asked, “Why?” and they said, “Don’t you know?” While walking to the office, appellant attempted to open her purse to produce her used belts. She was ordered not to take her hands off the cart.
In the office, appellant was permitted to show her belts and it was determined that they were not Meijer property. However, one of the belts was retained until the following week. Appellant was in the office for fifteen or twenty minutes. When she left, appellant was told not to return to Meijer. She was not touched by any Meijer employee. She did not see anyone she knew at the store, and she testified that, to her knowledge, no Meijer employee had discussed the incident with anyone.
On September 18, 1996, appellant filed her complaint against Meijer, raising claims sounding in false imprisonment and defamation. Her husband, John Hodges, filed a claim for loss of consortium. Following discovery, Meijer filed a motion for summary judgment, asserting that appellant was detained only for such time as was necessary to determine if she had Meijer merchandise and that the detention was permitted under the shopkeeper’s privilege, as it was with probable cause. Meijer also asserted that there was no evidence that Meijer had engaged in the publication of defamatory statements about appellant. The trial court granted the motion, stating:
“Although this was an unfortunate and traumatic experience since Mrs. Hodges was in fact not guilty of shoplifting, the issue is not whether [she] actually stole from the store, but whether the security personnel had probable cause to suspect [her] of shoplifting. * * * [I]t is clear that security personnel had probable cause to suspect her of shoplifting and no reasonable jury could find otherwise.”
The trial court also found that summary judgement for Meijer was appropriate on the defamation claim as there was no publication to third parties.
Appellant complains under a single assignment of error that the trial court improperly granted the motion for summary judgment. She specifically argues that **809 she was falsely imprisoned in that her actions were not voluntary and that *322 Meijer was not entitled to a privilege because the issue of probable cause was in dispute. Appellant also argues that customers in the checkout lanes were led to believe that she was a shoplifter, thus constituting publication of defamatory matter.
[1] Under Civ.R. 56, summary judgment is proper when (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 628 N.E.2d 1377.
[2] [3] It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The Supreme Court of Ohio has stressed that trial courts should award summary judgment with caution, being careful to resolve doubts and construe evidence in favor of the nonmoving party. Leibreich v. A.J. Refrigeration, Inc. (1993), 67 Ohio St.3d 266, 269, 617 N.E.2d 1068, 1071–1072. This court must independently review the record available to the trial court and review the lower court’s granting of summary judgment without deference to the trial court’s determination. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1157–1158.
[4] [5] Two requisites are essential to maintain a claim for false imprisonment: (1) the intentional detention of the person and (2) the unlawfulness of the detention. Mullins v. Rinks, Inc. (1971), 27 Ohio App.2d 45, 56 O.O.2d 218, 272 N.E.2d 152. To establish a claim for false imprisonment, appellant must prove by a preponderance of the evidence that she was intentionally detained or confined without lawful privilege and against her consent.
Ohio’s shopkeeper privilege, R.C. 2935.041, provides:
“(A) A merchant, or his employee or agent, who has probable cause to believe that items offered for sale by a mercantile establishment have been unlawfully taken by a person, may, for the purposes set forth in division (C) of this section, detain the person in a reasonable manner for a reasonable length of time within the mercantile establishment or its immediate vicinity.
“ * * *
“(C) [A] merchant or his employee or agent * * * may detain another person for any of the following purposes:
*323 “(1) To recover the property that is the subject of the unlawful taking, criminal mischief, or theft:
“(2) To cause an arrest to be made by a peace officer;
“(3) To obtain a warrant of arrest.
“(D) [T]he merchant * * * shall not search the person, search or seize any property belonging to the person detained without the person’s consent or use undue restraint upon the person detained.” (Emphasis added.)
[6] [7] Thus, summary judgment on the false imprisonment claim is not appropriate unless reasonable minds would necessarily conclude from the evidentiary materials submitted that Meijer acted with probable cause to believe appellant had committed theft and, further, that the detention was conducted reasonably. The record evidence does not clearly detail what prompted the Meijer employees to initially stop appellant.1 Appellant was apparently **810 observed placing the Elder–Beerman bag containing the used belts in her purse. The record contains absolutely no evidence that any Meijer employee saw appellant place any Meijer property into that bag. Furthermore, although appellant acknowledges that she had left the employee she had spoken with, an inference could also be drawn that she had been observed earlier speaking with the employee. If so, a jury could find that detaining her without checking with the employee was unreasonable.2 Finally, Meijer’s refusal to allow appellant to explain the circumstances when she first attempted to demonstrate that the belts were hers could be found to be unreasonable.3
[8] Although R.C. 2935.041 gives a merchant authority under certain circumstances to temporarily detain a suspected shoplifter, “that authority does not preempt all later claims for false imprisonment where there is evidence of unreasonable or improper continuation of the detention. * * * [E]ven if the initial detention (stopping plaintiff for investigation) be reasonable, the continuation *324 thereof by compelling her to go and remain in the office may not.” Gates v. Kroger (Apr. 30, 1991), Franklin App. No. 90AP–837, unreported, 1991 WL 70139.
[9] The question of what constitutes an unreasonable detention is one for the jury to determine under the facts and circumstances of each particular case. Garland v. Dustman (1969), 19 Ohio App.2d 292, 299, 48 O.O.2d 408, 412, 251 N.E.2d 153, 157. The length of time involved here, fifteen to twenty minutes, was not per se unreasonable under all circumstances. However, a jury could find the detention unreasonable because the belts were not Meijer property and this information could have been immediately ascertained. A jury could also reasonably find that keeping one of the belts was unreasonable, especially because the statute prohibits such retention.
Thus, viewing all the facts and inferences in this case in a light most favorable to appellant, we find that questions of fact exist as to whether Meijer had probable cause to detain appellant and whether the ensuing detention was conducted reasonably. Accordingly, the trial court erred in granting summary judgment on this issue.
[10] The trial court also granted summary judgment to Meijer on appellant’s defamation claim. The elements of defamation are:
“ ‘(a) a false and defamatory statement concerning another;
“ ‘(b) an unprivileged publication to a third party;
“ ‘(c) fault amounting at least to negligence on the part of the publisher; and
“ ‘(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.’ ” Akron–Canton Waste Oil v. Safety–Kleen Oil Serv. (1992), 81 Ohio App.3d 591, 601, 611 N.E.2d 955, 962, quoting 3 Restatement of the Law 2d, Torts (1977) 155, Section 558.
[11] Here, the trial court granted summary judgment because appellant had pointed to no evidence to establish the element of publication. Appellant’s own deposition indicates no publication of defamatory **811 matter. She admitted that nothing was said accusing her of theft; rather, she was told to accompany the store personnel to the office. Furthermore, even assuming that a statement was made, there was no evidence presented that the statement was heard by anyone or that any other method of publication was employed. We find that the trial judge correctly granted summary judgment to Meijer on the defamation claim.
Therefore, the assignment of error is sustained as to the false imprisonment claim and overruled as to the defamation claim. The decision of the trial court is *325 reversed in part, and affirmed in part and the cause is remanded for further proceedings.
Judgment accordingly.
WALSH, J., concurs.
POWELL, J., dissents.
POWELL, J., dissenting.
I must respectfully dissent from the decision of the majority because I believe that the trial court correctly found as a matter of law that the appellee had probable cause to initiate a limited detention of appellant to inquire into the circumstances presented. The shopkeeper’s privilege is designed to alleviate the dilemma faced by a merchant observing suspected shoplifting: whether to ignore the activity and absorb the possible loss, or detain a suspect and risk a false imprisonment suit if his suspicions are later shown to be erroneous.
The view of most jurisdictions is that the question of what constitutes probable cause is in essence a construction of the statute, which sets a standard to measure the rights and obligations of the parties, and is essentially a question of law to be determined by the court. Annotation, Construction and Effect, in False Imprisonment Action, of Statute Providing for Detention of Suspected Shoplifters (1973), 47 A.L.R.3d 998. See, also, Ashcroft v. Mt. Sinai Med. Ctr. (1990), 68 Ohio App.3d 359, 588 N.E.2d 280 (summary judgment proper where reasonable minds could only conclude that guards had probable cause to detain). It was undisputed that appellant placed a bag in her purse. The trial court correctly found that this placed appellee’s actions under the protection of R.C. 2935.041. The hindsight fact that it was another store’s bag that contained possibly stolen Meijer merchandise changes nothing in the analysis. I would affirm the decision of the trial court.
129 Ohio App.3d 318, 717 N.E.2d 806
| Footnotes | |
| 1 | Although appellant has cited depositions of Meijer’s employees in her brief, these depositions are not in the record and clearly were not considered by the trial court. It is well established that “[a] reviewing court may not add matter to the record before it, which was not a part of the trial court’s proceedings, and then decide the appeal on the basis of the new matter.” State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500, paragraph one of the syllabus. Because these depositions were not before the trial court, this court sua sponte strikes from appellant’s brief any reference to them. |
| 2 | See Weissman v. K-Mart Corp. (Fla.App.1981), 396 So.2d 1164 (although statute did not explicitly require investigation, failure to verify information should have been taken into account in determining the existence of probable cause). |
| 3 | See Derouen v. Miller (La.App.1993), 614 So.2d 1304 (merchant who detained but failed to question or investigate liable for false imprisonment). |
| End of Document | © 2019 Thomson Reuters. No claim to original U.S. Government Works. |
KeyCite Yellow Flag – Negative Treatment
- Distinguished by Saucedo-Carrillo v. U.S., 6th Cir.(Ohio), August 13, 2015
KeyCite Overruling Risk – Negative Treatment
- Overruling Risk Welling v. Weinfeld, Ohio, June 6, 2007
2003 WL 21505264
CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY.
Court of Appeals of Ohio,
Seventh District, Columbiana County.
Tammy S. KALBFELL, Plaintiff-Appellee,
v.
MARC GLASSMAN, INC. dba Marc’s, Defendant-Appellant.
No. 02 CO 5.
|
Decided June 26, 2003.
Customer who was falsely accused of being a shoplifter brought action against store for false imprisonment, defamation, invasion of privacy. A jury of the County Court, Columbiana County, No. 97CVF587, found for customer and awarded $10,000 in compensatory damages, $5,000 in punitive damages, plus attorney fees. Store appealed. The Court of Appeals, Vukovich, J., held that: (1) sufficient evidence supported finding that store falsely imprisoned customer; (2) store defamed customer; (3) sufficient evidence supported finding that store acted with actual malice; and (4) award of $10,000 in compensatory damages was not excessive.
Affirmed.
***
Civil Appeal from County Court NW, Case No. 97CVF587.
Ian Robinson, Salem, OH, for plaintiff-appellee.
Marshall Buck, Youngstown, OH, for defendant-appellant.
VUKOVICH, J.
*1 { ¶ 1} Defendant-appellant Marc Glassman, Inc., d.b.a. Marc’s, appeals the judgment entered in favor of plaintiff-appellee Tammy Kalbfell in the Northwest Area County Court of Columbiana County. Appellant raises arguments concerning the trial court’s denial of its motion for judgment notwithstanding the verdict or new trial on various claims and on compensatory and punitive damages; appellant also presents a remittitur argument and makes an evidentiary argument. For the reasons stated below, the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
{ ¶ 2} This case arose as a result of an incident that occurred in Marc’s Salem, Ohio store on September 25, 1997. When Tammy Kalbfell entered the store, some employees began stating amongst themselves that she had been banned from the Alliance store for shoplifting and was to stay away from all other stores. One of these employees called the operations manager and related this story. (Tr. 168). The operations manager later revealed in an affidavit as part of defendant’s discovery packet that she believed that Kalbfell has previously been watched at the Lisbon Sparkle for theft; however, the manager of Sparkle rebutted this statement in testimony for Kalbfell.
{ ¶ 3} The operations manager relayed the rumors about Kalbfell to the security guard. (Tr. 168). She informed the security guard that she received a call from the customer service girls and “they had stated that there was someone out there that had been barred from the Alliance store and was told to stay away from the Alliance store and all other Marc’s stores.” (Tr. 168). The security guard was allegedly called over the public address system to the customer service desk where Kalbfell was standing. (Tr. 171). And then, the employees who first made the accusations repeated their story to the security guard. (Tr. 168-169). He described these employees as being “very emphatic that this was the girl.” (Tr. 168, 171). When he pressed, these employees “insisted,” stating there was “[n]o doubt about it.” (Tr. 171).
{ ¶ 4} The security guard, dressed in a shirt displaying the word, “Security,” approached Kalbfell. According to Kalbfell, the guard said, “Come with me,” but the security guard claims that he asked her if she would come with him. (Tr. 99, 172). He then followed Kalbfell down a store aisle, through employee-only doors, into a corridor, to the last office, and allegedly repeated the accusations in front of the operations manager. Kalbfell heard the security guard make a phone call which she thought was to the police; she believed the police would be coming to arrest her. Kalbfell states that she was in the office for approximately twenty minutes; the guard believes it was less than one minute.
{ ¶ 5} The manager advised in his affidavit that the security guard called him and told him that he had a customer in the office who was banned from the Alliance store and that he was in the process of banning her from the Salem store. After being told that he cannot ban patrons from the store, the security guard apologized to Kalbfell. Kalbfell left the office crying and remained in the store to complain to the manager who refused to meet with her until she actively sought him out. The manager stated in his affidavit that Kalbfell approached him twenty-five minutes after he received the call from security. She was unhappy with the results of this conversation so she called the police. The employees related to the police their story that they had thought that Kalbfell had been arrested for shoplifting in Alliance. (Tr. 163). We note that only after Kalbfell left the office did the security guard think to ask a trusted employee, who had been a long-time employee of the Alliance store, whether Kalbfell had been banned for shoplifting. This employee responded, “Absolutely not. She’s not the one.” (Tr. 177).
*2 { ¶ 6} In July 1998, Kalbfell sued Marc’s for false imprisonment, defamation, invasion of privacy, negligent employment, and negligent infliction of emotional distress; Kalbfell voluntarily dismissed the latter two claims during trial. The complaint, which she filed in the local county court, asked for $15,000 in compensatory damages, costs, and attorneys’ fees. On March 31 and April 1, 1999, the jury heard the case and then, returned a general verdict for Kalbfell. The jury awarded $10,000 in compensatory damages, $5,250 in punitive damages, and attorneys’ fees. On April 15, 1999, the court entered judgment on the verdict but entered a $250 remittitur with Marc’s consent since the verdict exceeded the county court’s $15,000 jurisdictional limit.
{ ¶ 7} Marc’s filed timely motions for JNOV, new trial, and remittitur. From the trial court’s May 6, 1999 denial of these motions, Marc’s filed timely notice of appeal. However, such was not transmitted to this court and was not assigned an appellate case number at that time. A hearing on attorneys’ fees was held, and on August 9, 1999, the trial court ordered Marc’s to pay $4,940 in fees. Marc’s filed an appeal on September 9, 1999. Once again, the appeal was not transmitted to this court or assigned a case number. The trial court stayed execution of judgment pending a ruling on Kalbfell’s motion for prejudgment interest. The court did not deny this motion for prejudgment interest until February 12, 2002. At this time, Marc’s refiled its two pre-stamped notices of appeal and received case number 2002-CO-05. We filed an entry noting this strange procedure but conceding that the original appeal was timely filed, and thus, we allowed an extremely untimely submission of briefs.
{ ¶ 8} As an aside, the clerk’s failure to transmit the appeal does not allow an appellant to wait indefinitely to file a brief. App.R. 4(B)(5) allows appellant to file the appeal after the original judgment or after the remainder of the claims are disposed. By filing notices of appeal after three different judgments, appellant chose the former choice and thus was required to transmit the record and file a brief with this court in a timely fashion or seek a stay with this court. App.R. 14(C) speaks of dismissal for failure to cause timely transmission of the record. But it mentions doing so upon appellee’s motion, which we do not have in this case.
***
ASSIGNMENT OF ERROR NUMBER ONE
{ ¶ 12} Marc’s sets forth seven assignments of error, the first of which alleges:
{ ¶ 13} “THE TRIAL COURT ERRED BY FAILING TO GRANT A JUDGMENT NOTWITHSTANDING THE VERDICT/NEW TRIAL ON PLAINTIFF’S FALSE IMPRISONMENT CLAIM.”
{ ¶ 14} Contrary to Marc’s argument, they never sought JNOV based on the alleged legal insufficiency of evidence for the false imprisonment claim. The reference to false imprisonment in their post-trial motions was specifically placed under the heading related to a motion for a new trial pursuant to Civ.R. 59(A)(6), which deals with weight of the evidence. Any mention of false imprisonment in the JNOV motion was only to complain that the court and the plaintiff used the phrase “false arrest” at one point instead of “false imprisonment;” however, this complaint is not raised on appeal.
{ ¶ 15} We also note that we cannot construe any general sufficiency arguments as meaning that directed verdict should have been granted on this claim because they never renewed their motion for directed verdict at the close of their case and thus waived that argument. Helmick v. Republic-Franklin Ins. Co. (1988), 39 Ohio St.3d 71, 74, 529 N.E.2d 464. See, also, Chemical Bank of New York v. Neman (1990), 52 Ohio St.3d 204, 556 N.E.2d 490 (noting that Helmick reaffirmed a long-standing rule).
[1] { ¶ 16} As aforementioned, Marc’s did seek a new trial on the false imprisonment claim under Civ.R. 59(A)(6), on the grounds that the verdict was against the weight of the evidence. A trial court’s decision to deny a motion for a new trial is entitled to deference where the court exercised discretion in reaching its decision and is reviewed de novo where the decision was based on a question of law. Wagner v. Roche Labs. (1999), 85 Ohio St.3d 457, 460, 709 N.E.2d 162. Marc’s concedes that the court’s decision in this scenario was an exercise of discretion, but they argue that the court abused its discretion in failing to find that the verdict in favor of Kalbfell on her false imprisonment claim was against the weight of the evidence. Marc’s motion for new trial on this claim mentions some conflicting testimony such as that Kalbfell estimated she was in the office for twenty minutes, whereas the security guard estimated the time to be only one minute. The motion also disputes Kalbfell’s claim that she did not voluntarily enter the office. Although sufficiency arguments have been waived, we shall continue our review to determine whether there was competent and credible evidence to support the verdict for the plaintiff.
*4 { ¶ 17} False imprisonment entails intentionally confining a person without lawful privilege and against her consent within a limited area for any appreciable time, however short. Bennett v. Ohio Dept. of Rehab. & Corrections (1991), 60 Ohio St.3d 107, 109, 573 N.E.2d 633; Feliciano v. Kreiger (1977), 50 Ohio St.2d 69, 71, 362 N.E.2d 646. The legislature has enacted a statute to protect shopkeepers by providing a defense in certain cases. Pursuant to R.C. 2935.041(A), a merchant, who has probable cause to believe that items have been unlawfully acquired, may detain the person in a reasonable manner for a reasonable length of time. However, the merchant shall not use undue restraint or search the person or search or seize the person’s property without that person’s consent. R.C. 2935.041(D).
{ ¶ 18} Here, the shopkeeper’s privilege statute is not asserted as a defense by Marc’s on appeal because they admit that they did not question Kalbfell with probable cause that she unlawfully took items from the Salem store. Rather, Marc’s takes issue with the confinement element of false imprisonment. Marc’s argues that confinement requires force or threat of force and that no testimony established force or threat of force. Marc’s cites a recent case from our district which interpreted confinement as meaning a total detention or restraint on the plaintiff’s freedom by way of force or threat of force. Ferraro v. Phar-Mor, Inc. (Apr. 7, 2000), 7th Dist. No. 98CA48. We held that “mere submission to verbal direction, unaccompanied by force or threat cannot constitute confinement or detention.” Id., citing Condo v. B. & R. Tire Co. (May 29, 1996), 7th Dist. No. 95CA166. Marc’s concludes that there is no confinement unless the customer is physically restrained or expressly threatened to be physically restrained.
{ ¶ 19} Such a holding would negate the requirements of the shopkeeper’s privilege defense because as long as the threat was implicit, the shopkeeper would be able to avoid the requirements of probable cause, reasonable method, and reasonable time. Support for Kalbfell’s position can be found in the Ohio Jury Instructions dealing with false arrest and false imprisonment. Pursuant to O.J.I. 309.01, number 1, both false arrest and false imprisonment are defined as the unlawful restraint or control by one person over the physical liberty of another. Then, O.J.I. 309.01, number 3 states that the restraint can be actual or implied. This section lists “threat of force” or “display of authority” as methods of implied restraint. Then, it pronounces that restraint occurs if the words, conduct, or display of authority are such as to cause or give rise to a fear or apprehension of force and to overcome the plaintiff’s will.
{ ¶ 20} The addition of “display of authority” to the test means that ordering plaintiff to follow, in such a manner and under such circumstances that plaintiff reasonably believes she must so follow, is sufficient to establish confinement. Similarly, the Ninth Appellate District has held that there is sufficient evidence of an employer’s false imprisonment where a police officer, after being informed by the store that the plaintiff was suspected of theft, asked the plaintiff, “Will you come with me?” Mitles v. Young (1978), 59 Ohio St.2d 287, 291. The court mentioned that the plaintiff “would hardly be brave enough to resist such a display of authority.” Id.
*5 { ¶ 21} The present case is distinguishable from Ferraro as Ferraro did not involve a security guard but merely an employee, whereas here, we have a public announcement for security to come to the front desk followed by a man wearing a “Security” shirt approaching a woman and ordering her to come with him. Thus, the threat of force or restraint is stronger. Additionally, the defendant in Ferraro would have been protected by the shopkeeper’s privilege, even though we did not apply it. Moreover, Ferraro was believed to be shoplifting, but Kalbfell was not. Finally, our use of the word “threat” in Ferraro did not necessarily include only an express or explicit threat and preclude an implied or implicit threat which could be projected through the existing circumstances including a display of authority.
{ ¶ 22} In conclusion, we find that a reasonable person could believe that confinement occurred. This conclusion is based upon Kalbfell’s testimony that a security guard who had just been called over the public address system ordered her to come with him, walking behind her the entire way to the back office. Further, even if the initial encounter did not initiate a confinement, a reasonable person could find that the time spent in the back office became a confinement when the security guard started accusing her of shoplifting and being banned from Alliance and when he made a phone call which appeared to have been placed to the police.
{ ¶ 23} Regardless, the court instructed the jury using the pattern jury instruction declaring that a display of authority is sufficient for confinement, and Marc’s did not object to this instruction. Hence, any argument is waived. As for weight of the evidence in general on whether Kalbfell’s will was sufficiently overcome due to the display of authority, the jury obviously found Kalbfell to be a credible witness as opposed to the various inconsistent statements of the store employees. We refuse to second-guess the jury’s credibility and weight determinations. For all of the above reasons, this assignment of error is overruled.
[Portion of Opinion Removed]
*15 { ¶ 74} For the foregoing reasons, the judgment of the trial court is hereby affirmed.
Judgment affirmed.
WAITE, P.J., and DeGENARO, J., concur.
Not Reported in N.E.2d, 2003 WL 21505264, 2003 -Ohio- 3489
| End of Document | © 2019 Thomson Reuters. No claim to original U.S. Government Works. |