Johnson v. Target Stores, Inc.

• Decision Date: 05 June 2003
• Docket Number: No. 1-02-1368, No. 1-02-1369.
• Citation: 341 Ill. App.3d 56,791 N.E.2d 1206,274 Ill.Dec. 795
• Parties: Melissa JOHNSON, Plaintiff-Appellee, v. TARGET STORES, INC., and Ruben Garcia, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

791 N.E.2d 1206

341 Ill. App.3d 56

274 Ill.Dec. 795

Melissa JOHNSON, Plaintiff-Appellee, v. TARGET STORES, INC., and Ruben Garcia, Defendants-Appellants.

Nos. 1-02-1368, 1-02-1369.

Appellate Court of Illinois, First District, Fourth Division.

June 5, 2003.

Rehearing Denied July 11, 2003.

Franczek Sullivan PC, Chicago (David P. Radelet, Sally J. Scott, Shelli L. Boyer, of counsel), for Defendants-Appellants.

Lonny Ben Ogus, Chicago, for Plaintiff-Appellee.

Justice GREIMAN delivered the opinion of the court:

Plaintiff Melissa Johnson, a former employee of a Target store in Evanston, was arrested for retail theft from the store and was terminated from her employment. Ruben Garcia, a former Target security guard, signed the criminal complaint against the plaintiff that commenced criminal proceedings against her. After the charges were dismissed on the State's motion to strike the case off the call with leave to reinstate, the plaintiff brought suit against Target and Garcia for false arrest and malicious prosecution.

After a five-day jury trial, the jury tendered a verdict in favor of Target and Garcia on the false arrest claims and against Target and Garcia for the malicious prosecution claims. The trial court denied Target's posttrial motion for judgment notwithstanding the verdict, for a new trial, or a remittitur, and later denied Target and Garcia's motion to enter a nunc pro tunc order to correct the court's order and dismiss Garcia as a defendant. Defendants now appeal and argue: (1) that the trial court erred in denying the defendants' motion for entry of a nunc pro tunc order dismissing Garcia as a defendant; (2) the trial court erred in not granting Target's motion for judgment notwithstanding the verdict or for a new trial; (3) the jury's verdict against Target is against the manifest weight of the evidence; (4) the trial court erred in instructing the jury; and (5) the punitive and compensatory damages awarded by the jury were not supported by the evidence.

Because we find that the jury intentionally dismissed Garcia as a defendant and that Target had the requisite probable cause to arrest the plaintiff and commence prosecution against her, we reverse, whereas the dissent would have us reverse and remand. Notwithstanding the errors relating to the jury's verdict and judgment, however, we also find the plethora of evidence cited both in our decision and in the dissent does not reveal a scintilla of evidence that would allow a finder of fact to determine that Target acted with malice—another essential element to a cause of action for malicious prosecution.

By way of background, Target operates a chain of retail stores and maintains a security function at each store that it refers to as "assets protection." As to be expected, the assets protection department is responsible for preventing, investigating, and processing incidents of customer and employee theft. Positions within the assets protection department include the district assets protection team leader (DAPTL), the assets protection team leader (APTL), the senior assets protection specialist (Senior APS), and the assets protection specialist (APS). The DAPTL is responsible for assets protection at several stores within his or her district, the APTL is responsible for assets protection at a particular store, and the Senior APS and APS are hourly security employees.

Target has a general policy that requires its cashiers to separately scan the bar code of each item presented for purchase, even if a customer purchases several of the same items, and then place the item in the customer's bag. When an item is scanned, the bar code and the price are recorded by a computer and are then printed on a receipt. According to policy, therefore, when assets protection personnel observe a cashier hand-keying merchandise information into the computer instead of scanning and bagging, that raises a red flag that something is being done improperly.

On January 16, 1998, plaintiff was a supervisor for Target's in-store cafeteria, Food Avenue, and her responsibilities included food service, food preparation, and operating the cash register. Apparently because Food Avenue was a separate entity within Target, "she did not know all Target policy." Prior to that date, she had a verbal exchange with Garcia, who was a Senior APS, regarding her fiance. Specifically, she testified at trial that she was engaged to Victor, Victor has a stepmother named Alice, Alice's family did not like Victor dating the plaintiff, Garcia is friends with Alice, and Garcia told the plaintiff that she and Victor should not be dating.

Following her shift that day, plaintiff was shopping in the store while waiting for another Target employee, Gwen Curtis, to get off work. When Curtis's shift ended, she joined plaintiff shopping in the store and began using the same shopping cart. Unbeknownst to them, they were under surveillance by APS Corey Claybon because of what was described as their "suspicious" selection of merchandise. When they finished shopping, Curtis and the plaintiff entered the checkout line where Ronna Campos was working as a cashier. According to plaintiff, she "barely knew" Campos.

When plaintiff and Curtis entered Campos's checkout line, APS Claybon went to the assets protection office and began viewing them and recording their transaction on a video monitor. He also used a system called POSSI, which allows assets protection personnel to watch an image of the receipt of a transaction on a video monitor as the items are rung up by a cashier. This allows assets protection workers to compare what they observe with the actual receipt of the transaction. Not long after the transaction began, APS Claybon summoned Garcia to the assets protection office.

The videotape and the receipts reveal the following in the Campos/Curtis transaction: Curtis was first in line and had her merchandise rung by Campos. Campos overrode the system and hand-keyed three binders for $2.56, $1.24, and $1.24, and made no attempt to scan the binders; Campos hand-keyed the price of a shirt for $1.52, even though Target prices do not end in the number "2," and did not attempt to scan the shirt; Campos charged different amounts for two identical pink fleece pants, and then passed a third pair into Curtis's bag without scanning or keying in the price; Campos picked up a small, unidentifiable item without scanning it and handed it to Curtis, who placed it in her shopping bag; and Campos keyed a sweatshirt for $10.40, voided the transaction, and then placed the sweatshirt into Curtis's bag without charging her for it.

After Campos concluded the Curtis transaction, she began to ring the plaintiff's items. The first items on the conveyor belt were six binders of different designs and styles. Before the binders were rung, Curtis, plaintiff and Campos had a discussion while indicating toward the tag on one of the binders. Plaintiff then pointed to the register while saying something to Campos, and Campos hand-keyed the price of one binder at $1.24, hit the "quantity" key on the register, and charged plaintiff $1.24 for eight additional binders. Campos engaged in this behavior despite the fact that the binders had tags with item numbers visible that, according to Target policy, should have been individually scanned. Moreover, some binders were black with velcro closures, some had the word "Bulls" in red letters down the spine, and some were blue, leading to the conclusion that the items would have had different item numbers even if they were the same price. Plaintiff notes that during her transaction with Campos, Donna Anderson and Keena Williams, the leader on duty, were present and approved the price charged for the binders. However, neither Anderson nor Williams was present when the binders were rung.

As Garcia continued observing the plaintiff's transaction, APS Claybon allegedly went onto the sales floor to determine the retail price of the binders at issue and reported to Garcia that the binder he checked had a retail price of $13.99. After plaintiff paid $30.75 for her items, she and Curtis went to leave the store through the employee exit, and an alarm sounded. Allegedly, Claybon checked the plaintiff's receipt and bag, found that she had six binders and was charged for nine, and told her to get three more binders. After finding no additional binders, she was told by Donna Anderson, the cashier supervisor, that she should get a refund. She then went back to where Claybon was standing, talked briefly with him, and then entered the refund line. While waiting in line, she had a conversation with Garcia, who had approached her and stated that he wanted to talk with her immediately. She got off line without obtaining a refund and went with Garcia to an office.

Following the transaction, Garcia also requested that Campos and Curtis come into the assets protection office for questioning. According to Target policy, one other Target employee sat in as a witness during each interview and prepared a written report of the interviews. Campos was interviewed in the presence of employee witness Ruth Walker. When asked about the undercharge for the binders, Campos informed Garcia that plaintiff "gave her the price of the binders."

After plaintiff entered the office assigned to her, Garcia and an employee witness, Sherrice Ifelowo, entered. Garcia told the plaintiff that she had merchandise in her bag for which she had not paid the correct price. Plaintiff stated that she "selected several [binders] herself. Ask [sic] about the price, she [plaintiff] replied that it was discounted below stickered price. That is what she told the cashier. So cashier rang it up below marked price."

Based on the videotape, the receipts, and the interviews, Garcia and Claybon decided to call the Evanston police. After reviewing the videotape and the documents, the police officers spoke to the plaintiff, Curtis, and Campos, placed them...