Terry v. Zions Co-op. Mercantile Institution
| Decision Date | 07 December 1979 |
| Docket Number | No. 16065,16065 |
| Citation | 605 P.2d 314 |
| Parties | Doris G. TERRY and Paula Jean Terry, Plaintiffs and Respondents, v. ZIONS COOPERATIVE MERCANTILE INSTITUTION and John Does I and II, Defendants and Appellants. |
| Court | Utah Supreme Court |
Tim Dalton Dunn of Hanson, Russon, Hanson & Dunn, Salt Lake City, for defendants and appellants.
Ronald R. Stanger, Provo, for plaintiffs and respondents.
This appeal is from an order of the District Court denying defendant's motions for a judgment notwithstanding the verdict and for a new trial. Following a jury verdict in favor of the plaintiff, Doris G. Terry, for malicious prosecution, false arrest and false imprisonment, the defendant, Zions Cooperative Mercantile Institution (hereinafter "Z.C.M.I."), requested a judgment notwithstanding the verdict or in the alternative for a new trial or a remittitur of the damages. The District Court denied the motions for a judgment notwithstanding the verdict and for a new trial, but granted the remittitur motion on condition that the plaintiff accept a reduction of the punitive damages or the court would order a new trial. The plaintiff, Doris G. Terry, accepted the reduced amount in lieu of a new trial. Following defendant's appeal, however, plaintiff cross-appealed the granting of the remittitur motion and the reduction of the punitive damage award. We affirm the denial of the judgment notwithstanding the verdict and the new trial motion, but reverse the remittitur and reinstate the jury award. All statutory references are to Utah Code Annotated, 1953, as amended.
On December 22, 1976, the plaintiff and her daughter, Paula Jean Terry, 1 arrived at the Orem Branch of defendant's store with the express purpose of consummating the plaintiff's Christmas shopping. 2 Upon entering the store, the pair, proceeded to the men's department where they purchased several articles of clothing. This merchandise was properly paid for, wrapped and secured in distinctively marked bags. From the men's department, which is located on the first floor, the pair went to the third floor to examine certain household items as possible gifts for one of the plaintiff's sons.
Upon reaching the third floor, Paula Jean became interested in a display of specially pre-wrapped fondue sets. 3 Paula Jean picked up one of the sets and asked her mother, the plaintiff, if the set would be an appropriate gift for her brother. The plaintiff's reply was to the effect, "whatever you (Paula Jean) want to buy" would be fine.
With this pre-wrapped fondue set in hand, Paula Jean and the plaintiff moved to another part of the third floor to examine the store's selection of vacuum cleaners. Finding none satisfactory, the pair decided to return to the first floor to look at the watches displayed there. While the pair moved about the store, the plaintiff was carrying her package from the men's department and Paula Jean was openly carrying the pre-wrapped fondue set and a package from the men's department.
During her initial examination of the fondue sets, two Z.C.M.I. security operatives were alerted to Paula Jean's activities. Although one of the operatives left the area in response to a prior problem, the second, Richard W. Goddard (hereinafter "Goddard"), initiated covert surveillance of Paula Jean. This surveillance led Goddard to the first floor following the two women.
What subsequently transpired on the first floor represents the crucial factual dispute of the case. While Goddard testified that he intercepted the pair outside the boundary of the store, 4 the plaintiff and her daughter testified that they both were within the store when first approached by Goddard. According to the plaintiff's testimony, upon reaching the first floor she moved away from her daughter searching for the watch displays. As she found the displays and turned to summon Paula Jean, she saw Goddard approach her daughter and say something to her. The plaintiff further testified she then walked over to where the two were talking and upon inquiring as to what was going on was asked to go upstairs with her daughter and the security operative Goddard.
While acknowledging certain initial embarrassment, both women testified they originally thought Goddard merely wanted them to return to the third floor to pay for the fondue set. The subsequent attempt by Paula Jean to pay for the item was thwarted by Goddard, who shepherded them into Ronald M. Farley's office. 5 After waiting there a short time Ronald M. Farley (hereinafter "Farley") entered the office, addressed the two women and then retired to the hallway to confer with Goddard. The specifics of Farley's initial exchange were actively disputed at trial but concerned the possibility of the store lodging a shoplifting charge against the women, a search of Paula Jean's purse and the presentation to the women of certain forms which they were requested to sign. 6
Farley testified that at no time did he ask the women whether they were guilty of shoplifting, or had been shoplifting or make any other inquiry concerning their version of the preceding incident. In fact, Farley testified it was not a prerequisite to an arrest to discuss directly with the parties involved the questioned incident but rather he could act upon the report and impressions of the store's security operatives.
After a brief conversation with Goddard in the hallway, Farley returned to the room and reported Z.C.M.I. was arresting the pair for shoplifting. Upon hearing this the women remonstrated to Farley the situation, their intent to spend the entire evening shopping and their innocence. Farley was unresponsive to these efforts.
By the time the police arrived the plaintiff was experiencing a noticeable emotional reaction to the arrest and activities incident to it. As Paula Jean testified, ". . . my Mom just came unglued." When the police handcuffed the plaintiff she was extremely upset and weakened by her emotional state. Upon Farley's suggestion the police escorted the women down the back stairway and out of the store by the most inconspicuous route. The plaintiff was so weakened by her emotional reaction that she required physical aid to get down the stairway.
As the handcuffed women left the store in the company of the police, Doris Terry was recognized by a co-worker who approached Doris to inquire about her well-being. The co-worker was rebuffed by the policeman and told that she could not talk to the plaintiff. The women were taken to the police station, booked, fingerprinted, photographed and incarcerated. Because of the plaintiff's emotional state the pair were released on their own recognizance.
Following the above incident the plaintiff surrendered her job due to embarrassment and humiliation and undertook psychiatric therapy. Her psychiatrist, Dr. Delbert Perry Peterson testified the plaintiff was suffering from severe depression and was suicidal. He further testified that as a result of this depression Doris Terry was 70 to 90 percent disabled and that he had written a letter to the Disability Determination Unit of Social Security to this effect in an effort to get the plaintiff disability payments. Although he explained the plaintiff had reason to be depressed prior to the incident in question 7 and had suffered some mild depression, it appeared to him, "that the arrest at Z.C.M.I. caused this severe depression."
The pivotal issues in this case resolve into the following categories: (A) The existence of probable cause to arrest the plaintiff; (B) Which party has the burden of proving reasonableness of action or the existence of probable cause to arrest; (C) The exclusion of certain evidence; (D) The limitation on defendant's cross-examination of plaintiff and her expert witness; (E) The right of plaintiff to cross-appeal, after accepting the remittitur award; and (F) The availability of punitive damages. Our analysis of defendant's claims concerning the alleged District Court errors will follow this division.
The Utah Legislature has responded to the pervasive problems that merchants experience in relation to the protection of their goods from shoplifting by granting the merchants certain statutory immunity from civil suits growing out of the detention and arrest of suspected shoplifters. Specifically, Section 77-13-32 provides:
A peace officer or a merchant, merchant's employee, servant or agent who causes such detention of a person as provided in Section 77-13-30, 8 or who causes the arrest of a person for larceny of goods held or displayed for sale shall not be criminally or civilly liable where the peace officer, or merchant, merchant's employee, servant or agent has reasonable and probable grounds for believing that the person detained or arrested committed larceny of goods held or displayed for sale.
The statutes 9 incorporate and apply the common law defense of good faith and probable cause, which is usually granted exclusively to peace officers, 10 to detentions and arrests undertaken by merchants, merchant's employees, servants and agents. The standard governing such conduct (in civil suits for wrongful arrest) is composed of two elements. The first is subjective and the second is objective. The officer or merchant must allege and prove not only that he believed in good faith that his conduct was lawful, but also that his belief was reasonable. 11 Therefore, under Section 77-13-32, even if the crime was not in fact being committed or attempted, 12 if the defendant, "in good faith believes that such facts are present as to lead him to an honest conclusion that a crime is being committed by the person to be arrested," then he may not be held liable for false arrest. 13 In determining the reasonableness of the conclusion, the test to be applied is one that is practical under the circumstances, i. e., whether a reasonable and prudent man in his position would be justified in believing facts which would warrant...
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