Coker v. K-Mart Corp.
| Decision Date | 08 November 1990 |
| Docket Number | K-MART,No. A90A0872,A90A0872 |
| Citation | 399 S.E.2d 249,197 Ga.App. 701 |
| Parties | COKER v.CORPORATION. |
| Court | Georgia Court of Appeals |
D. William Garrett, Jr., Alpharetta, for appellant.
Chambers, Mabry, McClelland & Brooks, John C. Stivarius, Atlanta, for appellee.
Plaintiff Coker filed this action for malicious prosecution against defendant K-Mart Corporation. The case was tried before a jury which returned a verdict in favor of plaintiff in the amount of $202,000 general damages and $310,833 aggravated damages. Thereafter, based on its conclusion that the evidence demanded a finding that defendant had probable cause to conclude that plaintiff had committed the offense of shoplifting, the trial court granted defendant's motion for judgment notwithstanding the verdict. Plaintiff appeals, seeking a judgment consistent with the verdict. Held:
On December 15, 1984, plaintiff and her husband went to defendant's retail store to pick up layaway merchandise. There was a delay at the layaway department so plaintiff looked around the store while her husband waited in line. First, plaintiff looked in the nearby record and tape department, found a tape she was interested in buying and carried it back over to her husband. After they decided not to purchase the tape, she returned it to the record and tape department, then walked over to the ladies department where she talked to her aunt and uncle for about 10 minutes before walking over to the menswear department. After looking around the menswear department plaintiff walked back to layaway to see if her husband had gotten the layaway merchandise. After finding that her husband was still waiting, plaintiff walked over to the cosmetics department.
While browsing in the cosmetics department plaintiff saw a lipstick which appeared from the packaging to be a color she would like. The package had a color card but did not permit plaintiff to see the color of the lipstick itself. After removing a lipstick package from a wire display rack, plaintiff noticed that another package had been torn apart. Plaintiff removed the torn package from the display and put the first package back. Plaintiff then took the lipstick out of the torn package as she walked over to the cologne counter and laid the package down on the counter. After she rolled the lipstick up and looked at the color, plaintiff sprayed some cologne samples on herself and then walked, with the lipstick in her hand, towards the automotive department, past the toothpaste to some displays of Christmas decorations that she stopped to look at. From the Christmas decorations, plaintiff walked back through toys, by the jewelry counter, by the cash registers and service desk to the handbag department. Plaintiff was in the handbag department when she saw her husband out in the parking lot. At that time, plaintiff saw an open handbag on display nearby, threw the lipstick in the handbag, and proceeded to leave the store, leaving the handbag containing the lipstick behind.
As plaintiff walked out of the store, she was stopped at the door by defendant's security officer and voluntarily accompanied him back into the store. In the store, an assistant manager had the lipstick package and asked plaintiff if she knew where the lipstick was. Plaintiff, who had been joined by her husband, answered affirmatively and proceeded to point out the handbag where she had thrown the lipstick. Defendant's security officer recovered the lipstick from the handbag.
Plaintiff and her husband then accompanied defendant's security officer and assistant manager to an office where they were joined by a female employee of defendant. At the office, plaintiff's purse was searched and then her person was searched by the female employee. Neither of these searches disclosed any property belonging to defendant.
While in the office, plaintiff was subjected to repeated verbal abuse in the course of defendant's employee's attempt to persuade plaintiff to sign a statement confessing shoplifting. Plaintiff refused to sign and a police officer was summoned. The police officer issued plaintiff a "citation" charging her with shoplifting and took her into custody. As plaintiff was escorted by police from the store in handcuffs, defendant had all of its employees lined up on each side of the center aisle of the store so that they could watch her come down the aisle.
Upon the trial of the criminal shoplifting charge, plaintiff's motion for directed verdict of acquittal was granted. Plaintiff then filed this action against defendant.
" Munford, Inc. v. Anglin, 174 Ga.App. 290(1), 291, 329 S.E.2d 526 (1985). K Mart Corp. v. Griffin, 189 Ga.App. 225, 226, 375 S.E.2d 257 (1988). See also in this regard, OCGA § 51-7-60.
K Mart Corp. v. Griffin, 189 Ga.App. 225, 226, 227, 375 S.E.2d 257, supra. See also Wilson v. Wheeler's, Inc., 190 Ga.App. 250, 252(1), 378 S.E.2d 498 (1989). The case sub judice is one of those in which the material facts are undisputed. Defendant did not present any evidence at trial and relies upon the theory that plaintiff's evidence shows that defendant did not lack probable cause to conclude that plaintiff was shoplifting.
The test of probable cause stated in OCGA § 51-7-60 is whether plaintiff "had so conducted [herself] or behaved in such manner as to cause a man of reasonable prudence to believe that [she], at or immediately prior to the time of the detention or arrest, was committing...
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K-Mart Corp. v. Coker
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...McClelland & Brooks, John C. Stivarius, Atlanta, for appellee. McMURRAY, Presiding Judge. Our prior judgment in Coker v. K-Mart Corp., 197 Ga.App. 701, 399 S.E.2d 249, wherein this Court reversed the trial court, having been reversed by the Supreme Court of Georgia in K-Mart Corp. v. Coker,......
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