Wal-Mart Stores, Inc. v. Odem

• Decision Date: 21 August 1996
• Docket Number: WAL-MART,No. 04-94-00693-CV,04-94-00693-CV
• Citation: 929 S.W.2d 513
• Parties: STORES, INC., and Maria Inez Saenz, Appellants, v. Brandy ODEM, Appellee.
• Court: Texas Court of Appeals

Page 513

929 S.W.2d 513

WAL-MART STORES, INC., and Maria Inez Saenz, Appellants, v. Brandy ODEM, Appellee.

No. 04-94-00693-CV.

Court of Appeals of Texas San Antonio.

Aug. 21, 1996.

Rehearing Overruled Sept. 16, 1996.

J. Preston Wrotenbery, Magenheim, Bateman, Robinson, Wrotenbery & Helfond, Houston, for appellants.

William J. Tinning, Law Offices of William J. Tinning, Corpus Christi, for appellee.

Before STONE, DUNCAN and CANTU, ¹ JJ.

ON APPELLANTS' MOTION FOR REHEARING

CANTU, Justice.

We withdraw our judgment and opinion of May 22, 1996, and substitute the following.

Brandy Odem [Odem] appellee, brought suit against appellants Wal-Mart Stores, Inc. [Wal-Mart] and its store managers and against Maria Inez Saenz [Saenz aka Maggie], a Wal-Mart store greeter, for defamation, false imprisonment and assault. By unanimous verdict, a Brooks County jury awarded Odem $10,000 in actual damages and $800,000 in punitive damages. The trial court subsequently reduced the punitive damage award to $200,000. For reasons hereinafter set out, we reform the trial court's judgment, and as so reformed, we affirm.

On March 14, 1992 appellee Odem, then sixteen years old, accompanied by her male friend, Tony Chapa [Chapa], went to the Wal-Mart Store in Falfurrias, Texas for the single purpose of purchasing a particular cassette tape. When they entered the store, they proceeded directly to the section of the store displaying cassettes, and when they did not locate the particular tape they were looking for, they began to leave the premises. On the way out of the store, as Chapa walked ahead of her, Saenz, working as a store greeter, confronted Odem in the presence of other customers, as she exited through the store's door.

Odem had a purse looped over her bent arm as she walked out the door when Saenz suddenly grabbed Odem by the arm, turned her around, and reached into her purse to retrieve a blue package readily visible in Odem's purse, and which Saenz believed was store merchandise [a blue shirt]. Odem described Saenz's act as a pull or a touch of either her elbow or hand. Simultaneous with Odem turning around, Saenz told her that she suspected Odem had a blue and white shirt in her purse that had not been paid for.

Chapa, who was ahead of Odem, turned around and witnessed the encounter. As he walked back towards the two, Chapa overheard Saenz tell Odem "take out the item you have in your purse" or "you have something in your purse." After seeing Saenz reach into Odem's purse, Chapa overheard Saenz apologize to Odem and explain to her that she had seen something in Odem's purse that resembled unpaid merchandise. Only then did Saenz release Odem. According to Odem, she did not feel free to go, "because if I was free to go, I would have left, but I wasn't. I was halted there and I stayed there."

The entire incident lasted about fifteen minutes, with most of the time spent in Saenz apologizing to Odem. As Odem and Chapa left the premises, Odem related how she had been embarrassed by the incident. The following day, Odem's mother [Villa] went to the Wal-Mart store to speak to David Perez, the store manager. At a conference held at the store, Saenz was called in and Perez offered to terminate Saenz if that was what Ms. Villa desired.

On July 15, 1993, after Odem turned eighteen, suit was filed. In response to jury issues, the jury found that Odem had been assaulted, slandered and falsely imprisoned; that Saenz made a defamatory statement with malice, and that such statement was not qualifiedly privileged. The jury further found that Wal-Mart's negligence proximately caused the incident, that Wal-Mart had ratified Saenz's actions, and that Wal-Mart had been grossly negligent.

Appellants assign ten points of error, all of which attack the findings of the jury, as well as the awards made.

The False Imprisonment

Point of error one challenges the legal and factual sufficiency of the evidence to support the jury's finding that Odem was falsely imprisoned without legal authority.

The following jury question and instructions were submitted to the jury.

Question No. 2

Do you find from a preponderance of the evidence, on the occasion in question that the Defendant falsely imprisoned BRANDY ODEM?

"FALSE IMPRISONMENT" is the willful detention of another against her consent and when it is not expressly authorized by law, whether such detention be affected by an assault, by actual violence to the person, by threats, or by any other means which restrain a party so detained from moving from one place to another. False Imprisonment may be committed by words alone or by acts alone, or both.

"RESTRAINT" means detention from which a person cannot ordinarily relieve himself. A threat which is alleged to have resulted in false imprisonment must be calculated to detain the person. It must result in more than intimidation, such that a person cannot by ordinary means relieve himself from restraint or detention.

"WILLFUL DETENTION" means detention resulting from an intent to confine. You are instructed that the willful detention of another, without such a person's consent, is expressly authorized by the laws of the State of Texas when a person reasonably believes another has taken or is attempting to take property if the detention of such other person is effected in a reasonable manner and for a reasonable period of time for the purpose of investigating ownership of property.

Instruction RE: False Imprisonment/Detention: In regard to Special Issue No. 2 you are instructed that, by law, any merchant, his agent or employee, who has reasonable ground to believe that a person has wrongfully taken or has wrongful possession of merchandise, may detain such person in a reasonable manner and for a reasonable length of time for the purposes of investigating the ownership of such merchandise. Such reasonable detention shall not constitute false imprisonment.

The jury answered, "We do."

In support of appellants' position two arguments are advanced. First, it is claimed that there was no restraint to constitute a detention and alternatively, if there was a detention, that appellants possessed legal authority to do so.

The essential elements of false imprisonment are 1) a willful detention, 2) without consent, and 3) without authority of law. Sears, Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex.1985); H.E. Butt Grocery Co. v. Saldivar, 752 S.W.2d 701, 702 (Tex.App.--Corpus Christi 1988, no writ). The burden was upon appellee to prove all three elements including the absence of authority. Sears, Roebuck & Co. v. Castillo, 693 S.W.2d at 376. Essentially appellants concede that the first two prongs have been met but urge that there was legal authority to detain. ² We agree that the evidence supports a finding of a willful detention without appellee's consent.

To show legal authority, appellants rely on the statutory privilege found in Section 124.001 of the Texas Civil Practice & Remedies Code which provides that:

"A person who reasonably believes that another has stolen or is attempting to steal property is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property."

TEX.CIV.PRAC. AND REM.CODE ANN. § 124.001 (Vernon 1986).

Section 124.001 sometimes referred to as the shopkeeper's privilege is, however, limited to investigative detentions and does not extend to a suit based upon an arrest. Once proof of an unlawful arrest is made, the burden shifts to the appellants to show justification for the arrest.

Legal authority or legal justification is met either by the procurement of an arrest warrant or by the showing of existence of probable cause. Avalos v. Mejia, 788 S.W.2d 645, 646 (Tex.App.--Corpus Christi 1990, no writ); Tandy v. McGregor 527 S.W.2d 246, 248 (Tex.Civ.App.--Texarkana 1975, writ ref'd n.r.e.); Meyer v. Monnig Dry Goods Co., 189 S.W. 80, 81 (Tex.Civ.App.1916, writ ref'd). A statutory privilege is in the nature of a defense but does not rise to the level of legal authority or justification. But, here we are concerned with an alleged false imprisonment arising out of a detention, and not an arrest.

Reasonable cause for an investigative detention is something less than probable cause. The test of liability is not based on the store patron's actual guilt or innocence, but rather on the reasonableness of the store employee's action under the circumstances. And whether reasonable belief is established, is usually an issue of fact to be determined by the trier of facts from a full and thorough consideration of all of the evidence bearing on the question. An analysis of the evidence as it bears upon the statutory privilege requires that we focus on the reasonableness of the belief to detain, the reasonableness of the manner of detention and the reasonableness of the duration of the detention.

Saenz testified that she had previously worked for a Wal-Mart store in Corpus Christi as a sales clerk for almost a year before transferring to the Falfurrias Wal-Mart in March of 1992. Upon commencing her employment in Falfurrias she was put through an orientation course wherein she was told about store procedures and policies, including those addressing shoplifting. Her first position at the Falfurrias store was as a sales clerk and then she was assigned the position as a store greeter. On the day of her new assignment she attended a mandatory meeting where the subject of theft and shrinkage was discussed.

Sometime shortly thereafter, on March 14, 1992, Saenz was working the exit doors checking receipts against the items that had been purchased by customers. At the time Odem walked up to Saenz on her way out of the store, Saenz was busy cleaning windows by the exit doors. Saenz saw Odem and Chapa, whom she had seen together on prior occasions, walking towards her, but had not seen Odem at the register purchasing anything. In fact, Saenz never saw Odem or Chapa anywhere in...