Radloff v. National Food Stores, Inc.

• Decision Date: 04 June 1963
• Citation: 20 Wis.2d 224,121 N.W.2d 865
• Parties: Alma RADLOFF et al., Respondents, v. NATIONAL FOOD STORES, INC., a foreign corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 865

121 N.W.2d 865

20 Wis.2d 224

Alma RADLOFF et al., Respondents, v. NATIONAL FOOD STORES, INC., a foreign corporation, Appellant.

Supreme Court of Wisconsin.

June 4, 1963.

James C. Schalow, Daniel L. Costello, Milwaukee, for appellant.

Jack J. Gimbel, Milwaukee, for respondents.

WILKIE, Justice.

There are three separate issues to be resolved on this appeal. They are:

1. What duty does a storekeeper owe to a customer to protect that customer from injuries caused to him by the intentional acts of an escaping shoplifter?

2. Did the trial court err in not granting a nonsuit?

3. Did the trial court err in not granting a directed verdict?

First: What duty does a storekeeper owe to a customer to protect that customer from injuries caused to him by the intentional acts of an escaping shoplifter? Before considering the nature of a storekeeper's duty to protect customers from injuries caused by the intentional acts of an escaping shoplifter, it is first necessary to emphasize the legal rule governing the authority of storekeepers in dealing with shoplifters detected in the act of shoplifting on their premises.

In Stittgen v. Rundle (1898), 99 Wis. 78, 80, 74 N.W. 536, this court established the principle that 'An arrest without warrant has never been lawful except in those cases where the public security requires it; and this has only been recognized in felony, and in breaches of the peace committed in the presence of the officer.' This rule was reaffirmed in Gunderson v. Struebing (1905), 125 Wis. 173, 104 N.W. 149.

Thus, when Young spotted the shoplifter putting the cigarettes under his coat, it would have been unlawful, at that time, for him to make an arrest. This is especially true when we consider the fact that the alleged shoplifter could well have paid for the items at the time that he went to the check-out counter.

The defendant's employees were not negligent per se in stopping the shoplifter to recover the goods he had stolen, for certainly these employees had the right to recover their employer's goods. But they had no right to arrest the shoplifter, as the alleged crime was a misdemeanor and the employees of the National Food Store did not have a warrant to arrest the shoplifter. Furthermore, it is quite obvious that under existing and well-established legal rules the supermarket employees had to be extremely careful in apprehending a customer suspected of shoplifting because if subsequent events showed that the person suspected had not in fact been shoplifting, then a suit for false imprisonment would be inevitable. For these reasons, Erickson and Young asked the shoplifter to return to the store voluntarily, and the testimony established that the shoplifter consented to return without compulsion.

The respondent contends that the instant case is governed by Weihert v. Piccione (1956), 273 Wis. 448, 78 N.W.2d 757, which is cited by the trial court.

The appellants assert that the case is controlled by Knight v. Powers Dry Goods Co., Inc. (1948), 225 Minn. 280, 30 N.W.2d 536.

In the Weihert Case, supra, the defendant Piccione was the proprietor of a small restaurant in the city of Janesville. The plaintiff Eleanor Weihert, her husband, and one Donald Tischer, went to the defendant's restaurant late one evening. While at the restaurant a fight broke out between Mr. Tischer and one John Powers. After Powers had succeeded in knocking Tischer out, he purportedly twisted Mrs. Weihert's arm and thereby injured her. Piccione was in the back of the restaurant cooking, and had no knowledge that there was a fight or that one was about to break out. The whole incident took place in a very short period of time, and the evidence established that although Piccione knew Powers, he did not have knowledge that Powers was the type of man to act as he did. The court concluded that a nonsuit was properly granted and relied upon the following statement (at p. 455, 76 N.W.2d at p. 761) which was also used by the trial court here as the basis for its decision in the case at bar, namely:

'While it is the general rule that a restaurateur is not an insurer of a guest or patron against personal injuries inflicted by other persons on the premises, who are in no manner connected with the business, Annotation, 106 A.L.R. 1003 et seq., nevertheless the proprietor of a place of business who holds it out to the public for entry for his business purposes, (including a restaurant) is subject to liability to members of the public while upon the premises for such a purpose for bodily harm caused to them by the accidental, negligent, or intentionally harmful acts of third persons, if the proprietor by the exercise of reasonable care could have discovered that such acts were being done or were about to be done, and could have protected the members of the public by controlling the conduct of the third persons, or by giving a warning adequate to enable them to avoid harm.' (Emphasis added.) ¹

In the Knight Case, supra, a book thief (Ingall) was spotted browsing in a bookstore in Minneapolis. The proprietor of that store recognized the thief and called other bookstores to warn them that he was in the area. He later turned up at the defendant's store and was quickly spotted by two women floor detectives while he was in the process of stealing books. He then went outside the store and was confronted by one of the detectives who asked him, "Pardon me, sir, but don't you think you had better pay for those books?" He answered, "I guess I will' in a very gentle, soft voice.' (30 N.W.2d p. 537) He then proceeded back to the manager's office with the two ladies escorting him. As they approached the elevator he suddenly turned around and tried to escape. The 67-year-old plaintiff, Mrs. Knight, tried to stop him and was knocked down and injured.

The trial court instructed the jury as follows: (30 N.W.2d p. 538)

"* * * The defendant in this case was bound to use reasonable care to protect plaintiff as its customer from injury at the hands of vicious or lawless persons who it might bring in to its store."

The jury returned a verdict for the plaintiff, but on appeal this order was reversed and judgment was ordered for the defendant on his motion for a judgment notwithstanding the verdict.

The court observed, 30 N.W.2d at p. 538:

'* * * Until Ingall started to run, there is no evidence that defendant knew or should have known that he was vicious. * * *

'* * * If defendant was negligent, that negligence must have taken place before Ingall started to run. * * *' And 30 N.W.2d at p. 539:

'It is evident from the above [testimony] that defendant's employes did not know they were dealing with a vicious or violent person, and there is nothing in the record to indicate that they should have so known. * * * Knowledge of the fact that Ingall was a shoplifter, a type of sneak thief, was not knowledge that he was vicious, violent, or dangerous as well.'

In ruling that the lower court should have directed a verdict for the defendant, the Minnesota supreme court concluded, 30 N.W.2d at p. 539:

'In Christianson v. C., St. P., M. & O. Ry. Co., 67 Minn. 94, 97, 69 N.W. 640, 641, Mr. Justice Mitchell states the rule: '* * * If a person had no reasonable ground to anticipate that a particular act would or might result in any injury to anybody, then, of course, the act would not be negligent at all; * * *. Otherwise expressed, the law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did happen.'

'In Seward v. Minneapolis St. Ry. Co., 222 Minn. 454, 25 N.W.2d 221, adherence to this rule was stated. In view of all the circumstances disclosed by the evidence, it cannot be said that defendant's employes had any reasonable ground to anticipate that the act of taking Ingall over to the elevator would or might result in any injury to anybody. Consequently their act would not be negligent.'

Discussing the responsibility of shopkeepers where persons are injured by the unexpected conduct of third persons in a store. Anno. 20 A.L.R.2d p. 40, sec. 15, citing the Knight Case, supra, states:

'Unexpected conduct of other customers. It has been stated as a general rule that when an injury occurring on the proprietor's premises is the result of the negligence of a customer or customers, no liability attaches to the proprietor unless the circumstances are such that liability can be predicated on the theory of the existence of a dangerous condition known to or foresceable by him which he failed to tkae reasonable precautions to alleviate.' (Emphasis added.)

The crucial factors to be considered in determining whether a party is guilty of negligence has been stated recently by this court in Wisconsin Power & Light Co. v. Columbia County (1962), 18 Wis.2d 39, at page 43, 117 N.W.2d 597, at page 599, as follows:

'* * * Harm must be reasonably foreseen as probable by a person of ordinary prudence under the circumstances. Mondl v. F. W. Woolworth Co., supra [12 Wis.2d 571, 107 N.W.2d 472]; Osborne v. Montgomery (1931), 203 Wis. 223, 234 N.W. 372; Barnes v. Murray (1943), 243 Wis. 297, 10 N.W.2d 123. To constitute negligence, not only must the act involve a risk which the actor realizes or should realize but the risk must be unreasonable. The test of unreasonableness is well stated in 2 Restatement of Torts, page 785, paragraph 291, as follows:

"1. Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done."

In both Weihert and Knight, the appellate court ruled that as a matter of law there was no negligence on the...