Adams v. Zayre Corp.

• Decision Date: 20 October 1986
• Docket Number: No. 2-85-0576,2-85-0576
• Citation: 148 Ill.App.3d 704,499 N.E.2d 678,102 Ill.Dec. 121
• Parties: , 102 Ill.Dec. 121 Mary ADAMS, Plaintiff-Appellee, v. ZAYRE CORPORATION, a foreign corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 678

499 N.E.2d 678

148 Ill.App.3d 704, 102 Ill.Dec. 121

Mary ADAMS, Plaintiff-Appellee, v. ZAYRE CORPORATION, a foreign corporation, Defendant-Appellant.

No. 2-85-0576.

Appellate Court of Illinois Second District.

Oct. 20, 1986.

Gates W. Clancy, James S. Mills, Geneva, for defendant-appellant.

Lindner, Speers & Reuland, P.C., Jon Yambert, Aurora, for plaintiff-appellee.

Justice STROUSE delivered the opinion of the court:

This suit was brought by a shopper for compensatory damages for false imprisonment. Defendant denied all material allegations and pleaded an affirmative defense of comparative negligence. The plaintiff, over defendant's objection, was permitted to amend her complaint four days before trial to pray for punitive damages. A judgment for $2,500 in general damages, plus $30,000 in punitive damages was entered for plaintiff. A prompt post-trial motion was filed, argued and denied. This appeal timely followed.

On December 4, 1983, Mary Adams was detained by the security staff of the Zayre store in Aurora, Illinois. On December 13, 1983, she filed suit against Zayre Corporation seeking damages in the amount of $15,000 for false imprisonment. She demanded a jury trial. On March 27, 1985, four days before trial, plaintiff moved, over defendant's objection, to file an amendment to the complaint realleging the essential elements of the first count, and in addition, the fact that plaintiff continued to be wrongfully detained after she had presented to the security staff her sales receipt for the items of merchandise in her possession. This count sought the sum of $15,000 in punitive damages. Defendant, four days thereafter, on the first day of trial, filed a second affirmative defense of lawful detention under the retail theft statute (Ill.Rev.Stat.1983, ch. 38, pars. 16A-5, 16A-6). The statute empowers a merchant who has reasonable grounds to believe that a person has committed retail theft to detain such person in a reasonable manner for a reasonable length of time.

Terry Jo Buckner, the security manager at the store, testified that Mary Adams entered the store with her daughter and son. They went straight to the domestics department where they split up. Terry continually observed Mary as she picked up a pink radio, walked across two aisles and put it into her purse. Mary then walked to the front of the store. From there, Mary went to the boy's department where she was met by her son and daughter. Terry twice paged security while watching Mary in the boy's department.

Mary picked up some insulated underwear to buy and then went to the domestics department where she picked up two blankets. From domestics, Mary went with her daughter to the check-out lanes. Terry searched for the radio in the domestics department while still watching Mary.

Mary was in the store approximately one-half hour. She went through the check-out line and paid cash for her purchases. Terry and three security personnel confronted Mary after she exited the store. They testified they courteously asked her to return to the store. While Mary initially declined the request to return, she later did, in fact, walk back into the store on her own. Nobody from Zayre touched her. They escorted Mary and her daughter to a security room where, without being asked, Mary opened her blouse, pulled down her slacks and dumped her purse contents onto the floor. Her purchases were in her bag and she had a sales receipt in her hand. After nothing was found, apologies were made to Mary and she left.

When she left, she asked if she could use the side door. In her written report, Terry had recorded that Mary had asked if she could use the side door because she was too embarrassed to face the public. Mary was in the security room for not more than five minutes.

Terry testified that she watched Mary every time Mary came into the store because she caught her in 1981 trying to steal items in the health and beauty aids department. On that occasion, Mary had called her a "black bitch" and complained to the store manager. No reports were made of that incident. On a later occasion, Terry caught Mary stealing toothbrushes and toothpaste. Again, Mary made reference to her as being a "black bitch." No report was made of that incident either. Terry wrote in her report of December 4, 1983, that the Aurora police department had told her that Mary was known to do things such as shoplifting and stealing.

Karen Lasocki, an employee of the store, testified on behalf of the defendant. She stated that she was working at Zayre on December 4, 1983, and was called from the cash room to the security room. She saw a lady standing outside the doorway with her shirt in the air and her pants down. The lady was asked to pull her pants up and pull her shirt down, and was then taken to the security room where she again started to pull her shirt up. The lady was screaming that she didn't have any merchandise and she turned her purse upside down. Karen was not a part of the security department, did not write a report of the incident and only remained in the security room for about two minutes. She had talked to defense counsel and Terry the day before her testimony and, other than that, had no contact with the case since the occurrence.

Mary testified that she is 53 years old; has a 10th-grade education; has never tried to steal anything from Zayre; does not know any of the security people at the store; and has never called anyone there a "black bitch." She arrived at the store at 2:30 p.m. with her daughter, age 31, and son, age 22. Mary and her daughter went to the children's department. There she selected some insulated underwear for a grandchild and left the department after 15 minutes. She and her daughter went to the drapery department where they stayed 10 or 15 minutes. Larry was at the pinball machines at this time. Mary and her daughter picked out two blankets and went to the check-out lanes with Lisa Dodge, a friend whom she had met in the children's department. Mary paid cash and received her receipt.

Her son walked out the doors about 10 feet in front of her. As she walked out of the door, two men, a black man and a white man, stopped her. The white man grabbed her daughter by the arm. The black man grabbed Mary by the arm and told her that she had to come back to Zayre because she had something that belonged to Zayre that she did not pay for. She told him to leave her alone and pulled her arm away from him. He grabbed it again and said "[C]ome on, you're going back with me in Zayre's [sic ]." So she did, being held by the arm until she got through the entrance of the store where she was released and escorted into the security room. No one had asked her for a receipt before she was taken inside. People outside the front doors had been looking and laughing.

In the security room, there were two women from Zayre, one black and one white. They searched Mary's purse. After a short while, Mary grabbed her purse and dumped the contents to show them that she did not have anything. Next, she unbuttoned her blouse and pulled down her pants to show them she did not have any unpaid-for merchandise. Zayre personnel were asking about a pink radio. They then searched her daughter's purse. Mary and her daughter had been in the room about 15 minutes when a black man came in with her blankets and receipt. He gave the receipt to Mary and stated that the pink radio was not in the blankets.

Mary asked to leave, but the store personnel ignored her request. They were writing their report. She felt nervous and sick and again asked if she could leave. They told her she would have to wait until they were done processing. They told her that somebody had told them she had stolen a pink radio. After another 15 minutes the black man came back in and told her she could leave. She asked if they had a back door because she did not want to leave in front of the public.

As she was leaving the store, she saw her ex-husband. He now lives in Rochelle, Illinois. She does not speak to him. She came back to return the merchandise she had bought but kept the receipt. She felt hurt, embarrassed and sick for three days.

Plaintiff called Cecil Hart, a lieutenant and 20-year veteran with the Aurora police department. He is the keeper of the Aurora criminal records. He searched the records for arrests of Mary Adams and found nothing to suggest any thefts, theft-related activities or shoplifting.

Mary's son, Larry Potochney, also testified. His testimony was essentially cumulative to Mary's testimony. Outside the presence of the jury, defense counsel stated that he intended to impeach Larry with prior criminal convictions. Defense counsel produced various records which he asserted were convictions. Plaintiff's counsel reviewed the records and pointed out to the trial judge that the documents contained only a complaint, not a conviction, of Larry. Other records produced by defense counsel were convictions of another person named Thomas Lee Potochney.

The trial judge informed defense counsel that he was not to impeach the witness with those criminal records unless he was prepared to assure the court that he had evidence that the witness was the person convicted. Defense counsel was not able to give the court any such assurance. Without offering any certified court documents into evidence, defense counsel made a verbal offer of proof regarding the criminal convictions but did not offer proof that they involved the witness on the stand.

Lisa Dodge, a friend of the family, testified that she was shopping at the Zayre store on the relevant date and saw Mary and her daughter in the children's clothing department. She never saw Larry that day. She later saw Mary in the check-out lanes. A short while later she saw a black man holding Mary by the elbow, bringing her back into the store. Eight or 10 people were crowded around and laughing.

Mary's daughter, Sophie Potochney, testified...