Wal-Mart Stores, Inc. v. Bathe

Decision Date03 September 1999
Docket NumberNo. 49A02-9812-CV-1001.,49A02-9812-CV-1001.
Citation715 N.E.2d 954
PartiesWAL-MART STORES, INC., Appellant-Defendant, v. Nancy BATHE and David Hedge, Appellee-Plaintiffs.
CourtIndiana Appellate Court

Thomas L. Davis, Julia Blackwell Gelinas, Robert W. Wright, Dionne Carroll McCoy, Locke Reynolds Boyd & Weisell, Indianapolis, Indiana, Attorneys for Appellant.

John C. Green, Hume Smith Geddes Green & Simmons, L.L.P., Indianapolis, Indiana, Attorney for Appellee.



Nancy Bathe and David Hedge filed tort actions against Wal-Mart Stores, Inc., seeking compensation for damages allegedly stemming from an incident in which Bathe and Hedge were detained and searched in a Wal-Mart store on suspicion of shoplifting. Wal-Mart filed a motion for summary judgment, which the trial court denied. Thereafter, the trial court granted Wal-Mart's motion to certify the ruling for interlocutory appeal. Pursuant to Ind. Appellate Rule 4(B)(6)(b), we accepted jurisdiction of this interlocutory appeal to review the trial court's ruling and to address the following novel question of law:

Does Indiana's Shoplifting Detention Act (the Act), Ind.Code Ann. § 35-33-6-2 (West 1998) et seq., preclude a customer's claims of fraud, defamation, and negligence where the conduct of the merchant's employees are authorized by the Act?

We reverse.

The facts most favorable to the nonmoving party are that on August 3, 1996, Bathe went into a Wal-Mart store in Indianapolis, accompanied by her two children and a friend, David Hedge. When the group was finished shopping, their purchases were placed in two shopping bags and they exited the store. As they were leaving, a security buzzer sounded. Two men, who did not identify themselves, approached the group, took their shopping bags, and asked them to step back into the store. The two men were Michael Bennett, a Wal-Mart manager, and Lendell Montgomery, a Wal-Mart customer service manager. Montgomery and Bennett escorted Bathe back to the checkout counter where she had paid for her items, and began unloading her bags. The bags were passed through a scanner and did not trigger the alarm. After checking the receipts against the items in the bag, Bennett stated, "they must have it on them." Record at 55. Bathe responded that she owned two businesses and was not a thief. She offered to let Bennett search her purse, but he refused. Bathe then took her purse through the scanner, and the alarm sounded. Bathe returned to the checkout counter and emptied her purse. Bennett found a Dristan box, scanned it, and the alarm sounded. The box was empty and had a white plastic tag on it. Bathe explained that she had purchased the Dristan earlier from a different store. Bennett placed Bathe's purchases back in the shopping bags and told her that she was free to leave. Montgomery, Bennett, and Hedge estimated that the entire episode—from the time Bathe and Hedge were stopped until told that they were free to leave—took no more than fifteen minutes. Bathe estimated that it took about forty-five minutes. Montgomery and Bennett testified that they did not know Hedge or Bathe, and did not recall having seen them before the incident. Bennett had not previously identified himself, but Bathe assumed he was a Wal-Mart employee because he wore a white shirt, black pants, and a tag. She expressed her intention to sue Wal-Mart and asked for Bennett's identity, which he provided.

Hedge and Bathe filed separate lawsuits against Wal-Mart, each alleging defamation, malice, fraud, gross negligence and negligence, and seeking both compensatory and punitive damages. Their causes were joined for purposes of this interlocutory appeal.

The issue we are called upon to resolve involves the scope of immunity granted to store owners under the Act for actions taken against suspected or possible shoplifters. IC § 35-33-6-2 states:

(a) An owner or agent of a store who has probable cause to believe that a theft has occurred or is occurring on or about the store and who has probable cause to believe that a specific person has committed or is committing the theft may:
(1) detain the person and request the person to identify himself;
(2) verify the identification;
(3) determine whether the person has in his possession unpurchased merchandise taken from the store;
(4) inform the appropriate law enforcement officers; and
(5) inform the parents or others interested in the person's welfare, that the person has been detained.
(b) The detention must:
(1) be reasonable and last only for a reasonable time; and
(2) not extend beyond the arrival of a law enforcement officer or two (2) hours, whichever first occurs.

Prior decisions of this court have clarified that a merchant is not liable for claims of false imprisonment, false arrest, and malicious prosecution where the conduct of the employer is authorized by the Act. See Duvall v. Kroger Co., 549 N.E.2d 403 (Ind.Ct. App.1990)

(pursuant to the Act, detention is lawful if probable cause exists to detain a person, and lawful detention cannot constitute false imprisonment). Bathe and Hedge impliedly acknowledge this decision by pointing out that they have not sued upon those theories, but instead upon the theories of negligence, fraud, and slander per se, or defamation.

Because we are called upon to address a pure question of law, i.e., the scope of a merchant's immunity under the Act, we review the matter de novo. Aide v. Chrysler Financial Corp., 699 N.E.2d 1177 (Ind.Ct. App.1998), trans. denied. When construing the meaning of a statute, our primary goal is to ascertain and effect the intent of the legislature in enacting the statute. Sullivan v. Day, 681 N.E.2d 713 (Ind.1997). We accomplish this by giving effect to the ordinary and plain meaning of the language used in the statute. Clifft v. Indiana Dep't of State Revenue, 660 N.E.2d 310 (Ind.1995).

In Haltom v. Bruner and Meis, Inc., 680 N.E.2d 6 (Ind.Ct.App.1997), this court examined the history, purpose, and operation of the Act. To summarize, the Act was a response by our legislature to an epidemic of shoplifting. It was designed "to provide some measure of immunity from liability for a merchant whose agent detains someone suspected of theft." Id. at 8. A merchant's authority to detain under the Act is triggered in specific instances. Once triggered, the merchant's authority extends to the exercise of certain enumerated powers, as set out in subsections (a)(1) through (5) of IC § 35-33-6-2. Unlike the situation in Haltom, Bathe and Hedge do not challenge the existence of probable cause sufficient to justify Wal-Mart's decision to detain them. Accordingly, they do not challenge (1) the fact of the detention, (2) Wal-Mart's verification of their identities, or (3) the fact that Wal-Mart sought to determine whether they had in their possession unpurchased merchandise taken from the store. Seemingly, then, Bathe and Hedge concede that Wal-Mart had authority under subsection (a) to so act.

Bathe's and Hedge's complaints, however, are not brought under subsection (a), but instead under subsection (b), which provides that the detention must be reasonable and last only for a reasonable time. May a merchant be liable in tort for exercising authority granted under subsection (a), but doing so in an unreasonable manner or for an unreasonable amount of time? Although no Indiana court has addressed the question, we agree with the reasoning and conclusions in two cases from other states that have decided the issue.

In Jury v. Giant of Maryland, Inc., 254 Va. 235, 491 S.E.2d 718 (1997), employees of a Giant Food store in Virginia suspected that Carlotta Jury had shoplifted. As she was preparing to pay for items at the checkout, two men grabbed her arm and ordered her to accompany them. When she refused, one of the men struck her in the chest, causing her to fall to the floor. The men yanked Jury roughly to her feet, twisted her arm behind her back, and marched her into a storage room at the back of the store. Once there, one of the men kicked Jury in the back of the leg, causing her to fall face first into a pile of dirt. The men pushed her face into the dirt, then pulled her to her feet by grabbing her hair. They accused her of being a thief, called her obscene names, and stomped on her foot. They refused to let her go to the restroom, or to check on the two young children she had left locked in her car in the store's parking lot. They told Jury that she could not leave until she signed a confession, which she refused to do.

Jury filed suit against Giant, alleging assault and battery, negligence, and intentional infliction of emotional distress. Giant filed a motion for summary judgment, claiming immunity based upon Code § 18.2-105, which provided, in pertinent part:

A merchant, agent or employee of the merchant, who causes the arrest or detention of any person pursuant to the provisions of § 18.2-95 or § 18.2-96 or § 18.2-103, shall not be held civilly liable for unlawful detention, if such detention does not exceed one hour, slander, malicious prosecution, false imprisonment, false arrest, or assault and battery of the person so arrested or detained, whether such arrest or detention takes place on the premises of the merchant, or after close pursuit from such premises by such merchant, his agent or employee, provided that, in causing the arrest or detention of such person, the merchant, agent or employee of the merchant, had at the time of such arrest or detention probable cause to believe that the person had shoplifted or committed willful concealment of goods or merchandise. The activation of an electronic article surveillance device as a result of a person exiting the premises or an area within the premises of a merchant where an electronic article surveillance device is located shall constitute probable cause for the detention of such person by such merchant, his agent or employee, provided such person is detained only in a reasonable

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