Barkley v. McKeever Enters., Inc.

Citation456 S.W.3d 829
Decision Date24 February 2015
Docket NumberNo. SC 94253,SC 94253
PartiesDeborah Barkley, Appellant, v. McKeever Enterprises, Inc. d/b/a Price Chopper, Respondent.
CourtMissouri Supreme Court

Barkley was represented by Robert E. Gould and Frederick G. Thompson IV of Gould, Thompson & Bucher PC in Kansas City, (816) 943-0010.

Price Chopper was represented by Jacqueline A. Cook and John G. Schultz of Franke Schultz & Mullen PC in Kansas City, (816) 421-7100.


Paul C. Wilson, Judge

Deborah Barkley (Barkley) sued McKeever Enterprises, Inc. (Price Chopper), alleging various torts arising out of her 46-minute detention at Price Chopper for suspected shoplifting. At the close of the evidence, Barkley elected to submit only her claims for false imprisonment and battery to the jury. The jury found for Price Chopper on both claims. Barkley appeals, and the judgment is affirmed.


On May 24, 2009, Barkley went to Price Chopper in Independence. While shopping, she took various items (e.g., notebooks, a book light, toothpaste, and batteries) from the shelves and placed them in a reusable shopping bag she carried next to her purse. In her other hand, Barkley carried other empty reusable shopping bags. Barkley's husband, who also went shopping with her, placed various items in a grocery cart. When they met to check out, Barkley's husband unloaded the cart onto the conveyor belt while Barkley walked past the register and handed the empty reusable bags to an employee for use in bagging their purchases. Barkley continued to carry the bag concealing her other items next to her purse. She made no effort to pay for the items in that bag, and they had not been scanned along with her husband's purchases. When the other items were paid for, Barkley headed for the exit.

Two loss prevention employees had been watching Barkley on Price Chopper's surveillance system. When they saw Barkley head for the exit without paying for the items in the bag next to her purse, they stopped her. They confiscated the bag containing the unpurchased items, escorted her to the store's security office, and told her she was being detained on suspicion of shoplifting. Barkley's husband waited for her in the nearby customer service area.

Inside the security office, Barkley and the two male loss prevention employees were joined by a female employee in accordance with Price Chopper's policy for female shoplifting suspects. Barkley was told to sit on a bench in the office while the employees searched her purse, itemized and photographed the merchandise Barkley had concealed in the reusable shopping bag, and began preparing their report. Approximately four minutes after Barkley was first detained, the employees summoned the police when they determined that the price of the items in Barkley's bag exceeded the store's threshold for prosecution.

As the employees were processing the items and preparing their report, Barkley stood and approached two of the employees from behind. The third employee, who could see her approaching, told Barkley to stay seated on the bench. Barkley refused and continued to approach the other employees. When they turned and saw her, one of them moved to handcuff her. Barkley resisted and, during the scuffle, she was pushed up against a file cabinet. When the employee cuffed one of her hands and started to handcuff the other hand behind her back, Barkley complained that this would be too painful. The employee acquiesced and handcuffed Barkley's hands in the front instead. He told Barkley to return to the bench, but she refused again.

At this point, one of the employees reached out to guide Barkley back to the bench. She evaded this employee and ran for the door. Barkley was able to open the door because her hands were cuffed in front of her. But, before she could get the door open enough to escape, the employees caught up to her. While one of them pushed the door shut and tried to pull Barkley's hands from the door handle, the other employee knocked Barkley's legs out from under her. With Barkley on the floor, the employees were able to move her handcuffs to the back so she would not be able to use her hands again. Then, they attempted to help Barkley up and over to the bench. She refused their assistance, however, and remained sitting on the floor until the employees completed their report.

When the report was finished, the employees moved Barkley's handcuffs back to the front and, again, tried to help her off the floor. Barkley did not resist this time, and the employees assisted her to the bench. Approximately eight minutes later, or about 46 minutes after Barkley was first detained near the store's exit, the police arrived to arrest Barkley and escort her from the store. She was charged with shoplifting in Independence Municipal Court but later was acquitted of this charge.

Barkley sued Price Chopper for actual and punitive damages arising out of her detention in the store. She alleged that:

(1) Price Chopper had been negligent in supervising its loss prevention employees; (2) Price Chopper committed malicious prosecution by instigating criminal charges that ended in her favor; and (3) Price Chopper's employees invaded her privacy and committed assault, battery, and false imprisonment. Price Chopper pleaded that the merchant's privilege and section 537.1251 protected it from all liability to Barkley for the acts alleged.

In October 2012, the case was tried to a jury. At the close of the evidence, Barkley abandoned all of her claims except false imprisonment and battery. These were submitted to the jury, together with Price Chopper's affirmative defense to each count. The jury found for Price Chopper on both counts. Barkley sought a new trial on the grounds that the trial court erred in submitting an affirmative defense to the charge of battery and that the trial court erred in admitting and excluding certain evidence. Her motion was overruled. Barkley appeals, and this Court has jurisdiction. See Mo. Const. art. V, § 10.

The Court rejects Barkley's argument that the merchant's privilege does not extend to claims of battery and her argument that the privilege ends when the merchant's property is recovered. Instead, a merchant is privileged to detain a person—in a reasonable manner and for a reasonable period—if the merchant has reasonable suspicion or probable cause to believe that person is shoplifting. The merchant is entitled to recover the property but may continue the detention to determine whether the person actually was shoplifting and—if so—to summon the police and instigate criminal proceedings. This privilege is not limited to claims of false imprisonment. Instead, as long as the detention is conducted in a reasonable manner and for a reasonable time, the privilege protects the merchant from all liability to the person detained, civil or criminal, including liability for an assault or battery committed to effectuate the detention. Accordingly, the judgment in favor of Price Chopper is affirmed.


The privilege of a merchant to detain a suspected shoplifter has long been recognized in Missouri. At first, the privilege applied only if the suspect in fact was guilty of the crime. See Pandjiris v. Hartman, 196 Mo. 539, 94 S.W. 270, 272 (1906) (the “only plea of justification or excuse is that plaintiff was guilty of the crime for which he was arrested”). As a result, no matter how reasonable the merchant's suspicion may have been, only a subsequent conviction would protect the merchant from civil liability to the person detained. See, e.g., Titus v. Montgomery Ward & Co., 232 Mo.App. 987, 123 S.W.2d 574, 578 (1938) (concluding that, because the employee “acted indiscreetly, or with bad judgment, or through mistake, and arrested, restrained and searched a person not guilty, her employer is responsible”).

In 1941, however, this Court abandoned this restriction. Expressly overruling Pandjiris, this Court held:

In an effort to harmonize the individual right to liberty with a reasonable protection to the person or property of the defendant, it should be said in such a charge of false imprisonment, where a defendant had probable cause to believe that the plaintiff was about to injure defendant in his person or property, even though such injury would constitute but a misdemeanor, that probable cause is a defense, provided, of course, that the detention was reasonable.

Teel v. May Dep't Stores Co., 348 Mo. 696, 155 S.W.2d 74, 78 (1941) (quoting Collyer v. S.H. Kress & Co., 5 Cal.2d 175, 54 P.2d 20, 23 (1936) ) (quotation marks omitted).

Based on the evidence in that case, Teel holds as a matter of law that there was no “unreasonable or unlawful detention of plaintiff ... up to the time of obtaining the return of the goods.” Id. at 79. But, rather than let the plaintiff go when they recovered the stolen merchandise, the store employees detained her until she signed a confession admitting to the attempted theft. The Court held that this was actionable. Id. at 80.

If the employees did not believe plaintiff's explanation, the Court noted that the employees “might have been within their rights if they had called the authorities to take [Plaintiff] into custody and preferred charges against [Plaintiff]....” Id. at 79. But Teel holds it is “well settled that unreasonable delay in releasing a person, who is entitled to be released, or such delay in calling, taking him before or turning him over to proper authorities ... would thereafter amount to false imprisonment.” Id. As a result, the Court remanded the case for a new trial because “neither the privilege to restrain plaintiff for the purpose of obtaining return of the goods or in order to turn her over to the proper authorities ... would give [a merchant] any authority to hold plaintiff to compel her to give a confession in violation of her civil rights under the Constitution of this State.” Id. at 80.

The General Assembly codified Teel in 1961 in what is now section 537.125 (later amended in ...

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