Horn v. Village Supermarkets, Inc.

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: DREIER
• Citation: Horn v. Village Supermarkets, Inc., 615 A.2d 663, 260 N.J.Super. 165 (N.J. Super. App. Div. 1992)
• Decision Date: 10 November 1992
• Parties: Curtis HORN and Evelyn Horn, Plaintiffs-Respondents, v. VILLAGE SUPERMARKETS, INC., a New Jersey Corporation, t/a Shop-Rite, Edward Price and Fred Milteer, Defendants-Appellants.

Page 165

260 N.J.Super. 165

615 A.2d 663

Curtis HORN and Evelyn Horn, Plaintiffs-Respondents, v. VILLAGE SUPERMARKETS, INC., a New Jersey Corporation, t/a Shop-Rite, Edward Price and Fred Milteer Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Oct. 6, 1992.

Decided Nov. 10, 1992.

Robert F. Gold, Roseland, for defendants-appellants (Gold, Haggerty & Adams, attorneys; Robert F. Gold, on the brief).

Angelo R. Bianchi, Nutley, for plaintiffs-respondents (Angelo R. Bianchi, on the brief).

Before Judges ANTELL, DREIER and SKILLMAN.

The opinion of the court was delivered by

DREIER, J.A.D.

Defendants Village Supermarkets, Inc., trading as Shop-Rite, and its security investigator, Edward Price, appeal from a malicious prosecution judgment entered in favor of plaintiffs, Curtis Horn and Evelyn Horn, his wife. The jury awarded compensatory damages of $40,000 to Mr. Horn and $5,000 to Mrs. Horn, punitive damages of $125,000 to Mr. Horn and $1,500 in legal fees. The jury returned a verdict for defendants on plaintiffs' additional claims of false arrest and false imprisonment.

The parties assert significantly different versions of the incident which led to the arrest of Mr. Horn at the Shop-Rite Supermarket on February 9, 1987. According to defendants, Mr. Price, the security officer, observed the plaintiff look around and put two twinpacks of vitamins into the pockets of his down jacket. Plaintiff then collected several more items in his shopping basket and went to the checkout line and paid for the merchandise in the basket. At that point, Mr. Milteer another security officer, was standing several persons behind plaintiff in the checkout line. Mr. Price had positioned himself outside of the windows opposite the checkout line and made eye contact with plaintiff. Plaintiff then walked quickly out of the line, through the persons waiting in line and dumped the concealed vitamin packets, one into a display container on one aisle and the other onto a shelf near the bleach on another aisle. Mr. Milteer and Mr. Price then moved in on Mr. Horn and detained him, using handcuffs part of the time, until the police arrived.

Plaintiff disputes this account and claims that he never had any merchandise concealed in his pockets. After paying for the merchandise in his basket, he asked the checkout person to hold his bag. He went back through the line of waiting persons at a quick pace because he had forgotten to get a bottle of bleach. While in the bleach aisle, he was asked to go with Mr. Price and Mr. Milteer for questioning.

Both plaintiff and defendants agree that at the time Mr. Horn was brought to a room for questioning he had no merchandise in his pockets. All agree that he was booked by the Maplewood Police and that this procedure entailed removing his clothes, fingerprinting and taking mug shots. Mr. Horn had no prior criminal record and was released on his own recognizance. He was acquitted of shoplifting in the ensuing municipal court trial.

I

Defendants assert that since the jury found that they were not liable for the false arrest or false imprisonment of Mr. Horn, they cannot be liable for maliciously prosecuting him for shoplifting under N.J.S.A. 2C:20-11e. The statute provides:

A law enforcement officer, or a special officer, or a merchant, who has probable cause for believing that a person has willfully concealed unpurchased merchandise and that he can recover the merchandise by taking the person into custody, may, for the purpose of attempting to effect recovery thereof, take the person into custody and detain him in a reasonable manner for not more than a reasonable time....

* * * * * *

A merchant who causes the arrest of a person for shoplifting, as provided for in this section, shall not be criminally or civilly liable in any manner or to any extent whatsoever where the merchant has probable cause for believing that the person arrested committed the offense of shoplifting.

The above-quoted portions of the statute, upon which defendants rely, were interpreted by Judge Pressler in Carollo v. Supermarkets General, 251 N.J.Super. 264, 597 A.2d 1105 (App.Div.1991), certif. denied, 127 N.J. 559, 606 A.2d 371 (1992). That case involved a similar summary judgment motion in a malicious prosecution and false arrest action. Specifically, the court determined that the immunity from subsequent liability for "a merchant who causes arrest" does not apply to:

a merchant who thereafter initiates criminal proceedings as a complaining witness. Indeed, such proceedings are beyond the self-help recovery of stolen goods which the arrest authorization of the statute is expressly designed to effect. See Cooke v. J.J. Newberry & Co., 96 N.J.Super. , 14-15 [232 A.2d 425 (App.Div.1967) ].

[Carollo, 251 N.J.Super. at 269, 597 A.2d 1105].

See also De Angelis v. Jamesway Dept. Store, 205 N.J.Super. 519, 525, 501 A.2d 561 (App.Div.1985). The court in Carollo "conclude[d] therefore that the [arrest authorization of the] statute does not afford qualified immunity from a malicious prosecution action instituted by the merchant." 251 N.J.Super. at 269, 597 A.2d 1105.

The probable cause necessary to sustain a valid arrest is quite different from that necessary to prosecute. As stated in Carollo:

It appears, therefore, that ordinarily the same set of facts which constitute probable cause for a merchant to detain will also constitute probable cause for his initiating of criminal proceedings. Consequently as a practical matter, the probable cause which confers immunity from false arrest will ordinarily also defeat malicious prosecution claims. But this is not necessarily so. It is clearly possible that following an arrest based on sufficient probable cause, circumstances might ensue or facts might become known to the merchant which would so undermine the reasonableness of an initial belief in the patron's guilt as to make the subsequent signing of the complaint unjustified. [Id. at 270, 597 A.2d 1105 (emphasis added) ].

In the case before us the jury verdict evidences that the jury believed that such a change in circumstances was present. During deliberations the jury asked for an answer to the question: "What point was he considered arrested and imprisoned, A; in the aisle, B; back room, C; taken to police station." The judge and both attorneys agreed the answer was "in the aisle." The next response from the jury was that it had reached a verdict. The jury verdict found no cause for the false arrest and imprisonment and yet found malicious prosecution. It is reasonable to surmise from this that the jury found probable cause to detain (arrest) because in the aisle Mr. Price and Mr. Milteer had "probable cause for believing" that plaintiff had "willfully concealed unpurchased merchandise" and that defendant's employees could "recover the merchandise by taking [plaintiff] into custody." N.J.S.A. 2C:20-11e. By store policy defendants did not conduct searches in the aisle, and since they needed to take the plaintiff into custody in a room off the main shopping area to determine whether or not he had any concealed merchandise that he had not discarded, the jury found that the defendants had probable cause in the aisle to detain him. Therefore, the jury found the defendants not guilty of false arrest or false imprisonment.

It appears that the jury found against defendants on the malicious prosecution claim on the grounds that once the security officers found no concealed merchandise on Mr. Horn, they should have released him. Therefore, defendants at that point had no probable cause to prosecute Mr. Horn. On the facts of this case, and consistent with the reasoning in Carollo, the jury could properly find liability for malicious prosecution but no liability for false arrest or false imprisonment.

II

Defendants allege that the trial judge should have charged the jury that it could infer that a person who conceals unpurchased merchandise intends to deprive the merchant of possession, and that finding of such merchandise on the person of a shopper permits the inference of purposeful concealment. N.J.S.A. 2C:20-11d provides:

Presumptions. Any person purposely concealing unpurchased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise.

Since the facts were undisputed that Mr. Horn had no concealed merchandise "upon [his] person or among [his] belongings," ibid, failing to charge the permissive inferences did not amount to reversible error "clearly capable of producing an unjust result." R. 2:10-2.

III

Defendants next claim that the trial judge should not have permitted proof that plaintiff had been acquitted of the municipal court charges. Malicious prosecution arising out of a criminal prosecution requires proof:

(1) that the criminal action was instituted by the defendant against the plaintiff, (2) that it was actuated by malice, (3) that there was an absence of probable cause for the proceeding, and (4) that it was terminated favorably to the plaintiff. Prosser, Law of Torts, § 119 at 835 (4th ed. 1971); Evans v. Jersey Central Power, etc., Co., 119 N.J.L. 88 [91, 194 A. 144] (E. & A.1937). The plaintiff must establish each element. Upon failure to prove...