Hainz v. Shopko Stores, Inc.

• Decision Date: 03 October 1984
• Docket Number: No. 83-2129,83-2129
• Citation: 121 Wis.2d 168,359 N.W.2d 397
• Parties: Howard A. HAINZ and Paul E. Fremlin, Plaintiffs-Respondents, * v. SHOPKO STORES, INC., Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 397

359 N.W.2d 397

121 Wis.2d 168

Howard A. HAINZ and Paul E. Fremlin, Plaintiffs-Respondents, ^* v. SHOPKO STORES, INC., Defendant-Appellant.

No. 83-2129.

Court of Appeals of Wisconsin.

Submitted on Briefs July 31, 1984.

Opinion Released Oct. 3, 1984.

Opinion Filed Oct. 3, 1984.

Russell M. Ware and Robert T. Ward of Schoone, McManus, Hankel, Ware & Fortune, S.C., Racine, for defendant-appellant.

John F. Kerscher of Constantine, Christensen, Krohn & Kerscher, S.C., Racine, for plaintiffs-respondents.

Before SCOTT, C.J., BROWN, P.J., and ROBERT W. HANSEN, Reserve Judge.

BROWN, Presiding Judge.

This case interprets sec. 943.50(3), Stats., the statute immunizing merchants from such claims as false imprisonment for shoplifting detentions. ¹ Merchants are protected from liability as long as they have probable cause to detain and as long as they detain only for a reasonable manner and a reasonable time. The issue here is whether "reasonable manner" means that a merchant has a duty to fully investigate each charge including the alleged shoplifter's side of the story. We hold that the statute does not place that duty upon the merchant, and, therefore, the merchant in this case, Shopko Stores, should have been granted dismissal of the case. We reverse.

On October 15, 1981, plaintiffs Hainz and Fremlin went into the Racine Shopko store to buy some hunting arrows and other items. While in the sporting goods department, a store employee allegedly saw Fremlin remove the price tags from arrows marked two for $1.29 and place the tags on higher priced arrows. Hainz and Fremlin then proceeded to the checkout counter and purchased the arrows. The two were stopped by Shopko security personnel and taken to a room. Hainz and Fremlin were asked to sign a confession. They refused, and the police were called. The total detention time was approximately fifteen minutes. Both Hainz and Fremlin were charged with shoplifting but were acquitted after court trials.

The plaintiffs then brought this action, claiming they had been falsely imprisoned by the employees of Shopko. Shopko claimed immunity from civil liability for the actions of their employees under sec. 943.50(3), Stats. At the close of the plaintiffs' case, Shopko moved to dismiss on the ground that there was no credible evidence to support the claim that the plaintiffs were unreasonably detained. The trial court denied the motion. The jury found Hainz and Fremlin had been unreasonably detained and awarded compensatory damages in the amounts of $182.68 and $75.00, respectively. The jury further found the conduct of Shopko's employees was in wanton, willful or reckless disregard of the plaintiffs' rights and awarded each of them $6,250 in punitive damages.

Section 943.50(3), Stats., affords civil and criminal immunity to a shopkeeper for detaining a suspected shoplifter under certain circumstances. It reads:

(3) A merchant or merchant's adult employe who has probable cause for believing that a person has violated this section in his or her presence may detain the person in a reasonable manner for a reasonable length of time to deliver the person to a peace officer, or to his or her parent or guardian in the case of a minor. The detained person must be promptly informed of the purpose for the detention and be permitted to make phone calls, but he or she shall not be interrogated or searched against his or her will before the arrival of a peace officer who may conduct a lawful interrogation of the accused person. Any merchant or merchant's adult employe who acts in good faith in any act authorized under this section is immune from civil or criminal liability for those acts. [Emphasis added.]

Shopko maintains their employees acted in accordance with the statutory directive and that they were improperly denied immunity from liability. Hainz and Fremlin, on the other hand, assert that they were not detained "in a reasonable manner," and, therefore, Shopko cannot take advantage of the immunity statute. They testified that after they were informed of the "ticket-switching" accusation, they were asked to sign a confession. They refused and vehemently denied their guilt. They then asked the Shopko employees to check the price tags in the sporting goods department to verify their innocence. This was not done.

Later that day, after they had been released from police custody, Hainz and Fremlin returned to the Racine Shopko store and purchased the same arrows they had previously purchased. They were charged the lower price. The plaintiffs maintain that their detention was conducted in an unreasonable manner due to the unwillingness of the Shopko employees to return to the sporting goods portion of the store and check the price of the arrows in question.

Before addressing the merits, we must first explain the proper standard of review. The sole question here is whether the phrase "in a reasonable manner" includes the affirmative duty to investigate. Thus, we are concerned with construction of the statute. Construction of a statute is a question of law as is the application of a statute to a particular set of facts. Bitters v. Milcut, Inc., 117 Wis.2d 48, 49, 343 N.W.2d 418, 419 (Ct.App.1983). It is uncontroverted that there was a failure to investigate. Where there is no conflict in the evidence regarding the length of time and the circumstances under which the customer was held, the reasonableness of the detention is one for the court. See Lindsey v. Sears, Roebuck and Co., 389 So.2d 902, 904-05 (La.Ct.App.1980). We conclude this issue is a question of law that we may review independent of the the trial court's determination.

In interpreting a statute, we must first look to the plain meaning of the statute. State ex rel. E.R. v. Flynn, 88 Wis.2d 37, 42, 276 N.W.2d 313, 316 (Ct.App.1979). If the statute is still ambiguous after reading it for its plain meaning, we must then look to intrinsic and extrinsic aids in order to determine legislative intent. Id.

At common law, a merchant was without privilege to detain a shoplifter without a warrant, even if the misdemeanor was committed in his presence. Radloff v. National Food Stores, Inc., 20 Wis.2d 224, 228, 121 N.W.2d 865, 867, reh'g denied, 20 Wis.2d 237a, 123 N.W.2d 570 (1963). Suits such as false imprisonment, which is the unlawful restraint by one person of the physical liberty of another, predominated in those instances. See Lane v. Collins, 29 Wis.2d 66, 69, 138 N.W.2d 264, 266 (1965).

The plain meaning of sec. 943.50(3), Stats., is to immunize the merchant from such suits as long as two prongs are satisfied. First, the merchant must have had probable cause to believe that a person committed the crime of shoplifting. Second, the qualified privilege of detention without fear of liability may be lost by the manner in which it is exercised. Although probable cause gives the merchant a right to detain, such person may only be detained in a reasonable manner and only for the reasonable length of time necessary. Therefore, we know from the plain meaning of the statute that probable cause will give the merchant the immunity desired but that the immunity can be lost if the detention is unreasonable in time or manner.

There is no dispute that the merchant had probable cause. The dispute is whether the immunity was lost by reason of the merchant's subsequent action. The plain meaning of the statute does not help us with this question, and we must turn to extrinsic aids for guidance.

An extrinsic aid which helps in analyzing statutes is the use of judicial interpretation of similar statutes in other states. Flynn, 88 Wis.2d at 44, 276 N.W.2d at 316. In examining case law of other jurisdictions where the reasonableness of a customer's detention is raised, we find that the inquiry focuses on two major components: (1) whether the merchant's behavior was rude to the point of public embarrassment, and (2) the physical environment of detention. Specifically, the inquiries include: whether the employee's manner was harsh, loud or abusive; ² whether the questioning took place in a public or private area; ³ whether unreasonable force was used in detaining the suspect, ⁴ and whether there was a general showing of ill treatment toward the suspect. ⁵ As summarized by one court, "the qualified privilege under the statute does not give the merchant the right to embarrass or harass individuals suspected, in public view of every one, in a rude manner." J.C. Penney Co. v. Cox, 246 Miss. 1, 148 So.2d 679, 685 (1963). No case contains, as one of its elements, the affirmative duty of the merchant to investigate the customer's recitation of events.

We are further impressed by the early case of Collyer v. S.H. Kress Co., 5 Cal.2d 175, 54 P.2d 20 (1936). In that case, the doctrine of probable cause for detaining a shoplifter was first introduced. Comment, Shoplifting: Protection For Merchants In...