ART VECTOR
Brian Maxwell, Customer Relations Manager, for Art Vector, was in a quandary. He pondered over a
memo from Jay Kelly, Loss Prevention Manager at Art Vector, (Exhibit 1) and a letter addressed to him
from Candice Cook, a customer, (Exhibit 2). What appeared to have been a routine shoplifting incident
on the part of Mrs. Cook turned out to lack evidence. To make matters worse, the suspect was injured
during apprehension. It appeared that Art Vector faced the possibility of a lawsuit because of the
incident. Ronald Wood, Chief Administrator, had asked Mr. Maxwell to assess the legal and financial
consequences of the case, make recommendations, and report back to him.
Art Vector is a large stationery and drawing supplies retailer with approximately 50 stores located
throughout the State of Green. The firm has been established for many years, making steady, if
unspectacular profits.
EXHIBIT 1
MEMORANDUM
DATE:
January 3, 2019
TO:
File
FROM:
Jay Kelly, Loss Prevention Manager
SUBJECT:
Shoplifting Incident
______________________________________________________________________________
At 2:20 p.m. today, I observed a customer, Candice Cook, who was standing next to calligraphy sets in the store,
make a sudden move to her pocket. She then proceeded at an accelerated pace toward the exit. I noticed that her
side pocket was stuffed. I then proceeded directly to where the customer had been standing and noticed that a
calligraphy pen set was missing. It so happened that I noticed earlier that day that the calligraphy pen sets were fully
stocked up. I assumed that the customer, who I had previously observed, had shoplifted the set. As the customer
was about to leave the store by then, I began chasing after her and reached her at the store’s entrance. Fearing that I
might lose her in the crowd, I shouted at her to stop. I then grasped her by the arm and shoved her back to the store.
Apparently, the customer lost her balance and fell on her back hitting one of the checkout counters. She seemed to
be hurt a little, but then I offered to help her stand up, although she continued to limp. I then asked her if she had
forgotten to pay for something. She seemed surprised and said that she does not understand what I am talking about.
I then directed her to follow me to the Loss Prevention room. Alice Fernandez, one of the checkout employees,
helped her walk toward the Loss Prevention room as the customer complained she was having difficulties walking
and was experiencing terrible back pain. I closely walked behind the two of them.
Per store’s protocol, I then advised the customer that she would have to wait until the store’s manager would come
back from a meeting for the investigation to begin. The store’s manager, Jackie Tran, was due to return from a
meeting at 2:30 p.m. that day. Unfortunately, she only returned at 3:30 p.m. At that time, Mrs. Tran advised the
customer why she was being held up and asked her to empty her pockets. However, no calligraphy set was found.
Mrs. Tran then apologized for the inconvenience, gave her a $25 gift certificate, and wished the customer well.
I really did not mean to hurt the customer, but apparently, her fall did some damage to her as she kept complaining
that her back hurts.
1
EXHIBIT 2
Candice Cook
77 Green Avenue
Green City, Green
February 18, 2019
Ronald Wood, Chief Administrator
Art Vector
99 Mint Blvd.
Rose City, Green
Re: incident dated January 3rd, 2019
Dear Mr. Wood:
Based on permanent injuries inflicted on me by one of your employees while falsely imprisoning me on January 3rd,
2019, I demand compensation in the sum of $765,000 in medical care expense and $500,000 for loss of future
income.
On January 3rd, 2019, I came to your store to locate some art supplies for my daughter’s art project at school. While I
was examining a number of calligraphy sets that you had on the shelves, I was not able to find the calligraphy set my
daughter’s teacher requested. Rushed to make it back to an appointment I had with a client that afternoon, I headed
toward the store’s exit. As I was about to leave the store’s premises, I heard someone shout behind me ordering me
to stop immediately while using some foul language. When I looked back, I saw a six-foot, two hundred pound man
grabbing my arm and shoving me back to the store. Due to the tremendous force of that shoving, I lost balance and
fell on my back, right against one of the store’s checkout counters. I immediately felt extreme pain in my back and
was unable to move. I was then helped out by a store’s employee and was ordered to go to the Loss Prevention
room. I was told that police would be called to the premises if I did not directly go to the Loss Prevention room. There
were approximately twenty-five customers watching me as I was escorted to the Loss Prevention room. I felt
extremely embarrassed by the ordeal. Once we got to the Loss Prevention room, I asked the man, who accosted me
at the store’s entrance and who then followed me to the room, the reason for my detention. He then mentioned that it
is against the store’s policy for him to discuss the matter further and that I would have to wait for the store’s manager.
Almost an hour later, the store manager, Mrs. Tran, arrived. At that point, she notified me that I have been detained
because one of the store’s employees had observed me stealing a calligraphy pen set. I immediately denied any
involvement in the matter and offered to empty my pockets. Mrs. Tran was then satisfied that I have done nothing
wrong. She politely apologized and allowed me to leave the store’s premises.
Later that afternoon, I was admitted to Ceder Sinai Hospital emergency room as I was experiencing severe back pain
arising out of my fall earlier that day. That same night, a team of surgeons operated on my back as the condition
severely deteriorated. However, they were unable to successfully treat the back injuries in this and in two other
surgeries that followed. I am now diagnosed with an abnormal degeneration of my spine resulting in irreparable back
injury and permanent disability. This condition prevents me from ever walking again or from ever sitting down for
more than ten minutes at a time. As a result of this permanent condition, I had to quit my job as a regional
salesperson for Weise, a pharmaceutical company. My doctor’s diagnosis indicates that these injuries to my back
would prevent me from ever working again.
Besides my past and future medical bills, I am also demanding that you compensate me for the loss of future income.
As a fifty-five years old, highly successful career woman in the field of pharmaceutical sales, I am now deprived of
any prospects of employment for the rest of my life. I am attaching a copy of my gross yearly income from my sales
position during the last fifteen years. (See Exhibit 3).
Please respond to my settlement offer on or before April 15. I hope this matter could be resolved amicably.
Sincerely,
Candice Cook
Enclosures
2
EXHIBIT 3
Number
Year
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
Gross
Income
60,056
61,257
62,482
63,732
65,007
66,307
67,633
68,986
70,366
71,773
73,208
74,672
76,165
77,688
79,242
Price
Index*
188.9
195.3
201.6
207.3
215.3
214.5
218.1
224.9
229.6
233.0
236.7
237.0
240.0
245.1
251.1
*Source; https://data.bls.gov/pdq/SurveyOutputServlet
U.S. Department of Labor, Urban Consumers, 1982 – 1984 = 100
3
Required:
Suppose you are Brian Maxwell. You have just confirmed that, for all practical purposes, Mrs. Cook will
be unable to work at all during the next ten years, including all of 2019. Write a report, addressed to
Ronald Wood, Chief Administrator of Art Vector. Be sure to follow the guidelines for writing a report found
in the Gateway Web Site.
To prepare for this case, you may want to review business law LDC concepts 2 and 9, financial
accounting LDC concept 7, macroeconomics LDC concept 1, and statistics LDC concepts 1, 4, and 8.
4
ART VECTOR LIBRARY
PAUL CALDWELL, PLAINTIFFRESPONDENT, v. TODD
KHLER DEFENDANT-APPELLANT
motion in his back. Despite Caldwell’s
treatment, he remained in pain. Eventually,
Dr. Sherman suspected the “possibility of
tuberculosis of the spine.” Dr. Sherman
testified that in his opinion “the accident
unmasked or reactivated latent tuberculosis”
because he could find no other provoking
factors, and medical literature indicated that
“significant auto trauma can be a provoking
factor.”
A-108 September Term 1993
Supreme Court of Green
March 14, 1994, Argued
July 6, 1994, Decided
Later, Caldwell began treatment with Dr.
Lee, an orthopedic surgeon. In late 1990,
Dr. Lee admitted Caldwell to the hospital
because Caldwell was still experiencing
back pain and his “right leg was still getting
numb every now and then.” Caldwell
testified that Dr. Lee told him he had
tuberculosis of the spine. Dr. Lee’s
discharge summary indicated the final
diagnosis as post-traumatic lumbosacral
sprain with spasms, psoas abscess with
multiple lumbar abscesses, suspected
tuberculosis, and osteomyelitis with
destruction of certain vertebrae. Apparently,
Dr. Lee’s antibiotic treatment of Caldwell
ended the progress of the disease. No
evidence suggested that further destruction
of spinal bone or other increase in disability
had occurred or would occur in the future.
PRIOR HISTORY: [***1]
COUNSEL: W. Stephen Leary argued the
cause for appellant.
Raymond T. Roche argued the cause for
respondent
OPINIONBY: HANDLER
OPINION:
On May 21, 1987, Todd Khler (hereinafter
defendant), who was operating a car struck
the rear end of a disabled vehicle at or near
the shoulder of the Pulaski Skyway. The
disabled car had stalled in the right lane of
the roadway and its owner, Deloris Haynes,
had left the car to seek help. Plaintiff, Paul
Caldwell, who remained in the disabled
vehicle, was injured by the impact. Caldwell,
who was thirty-five-years-old at the time of
the accident, was examined and treated
over the years by various doctors and
hospitals. For almost a year after the May
1987 accident, Caldwell continued treatment
with Dr. Sherman, a board-certified
internist, who initially treated Caldwell for a
spasm, tenderness, and a reduced range of
Caldwell testified that his back pain was
“sharp,” he was “in constant pain every
day,” and “everything became a problem,”
including tying his shoes, walking, and
driving. Caldwell denied ever having had
any back pain before the accident.
Before the accident, plaintiff had been
employed for two to three years as a general
laborer by a construction company that
repaired bridges and tunnels. At the time of
5
the accident, Caldwell earned $25.65 per
hour and worked forty or forty-five hours per
week, although his hours varied, seemingly
due to the seasonal nature of the work. After
the accident Caldwell missed three months
of work.
total of $1,550,000: $ 50,000 for past lost
wages and $ 1.5 million for future lost
wages.
On appeal, defendant-appellant sought an
order for a new trial on the computation of
future lost wages.
Caldwell testified that at the construction
company he earned an average gross
weekly income of about $ 1,000. His
testimony suggested that his pre-accident
annual salary before taxes had been about $
44,000. Caldwell stated that in 1987, the
year of the accident in which he missed
three months of work, he had earned $
33,000. However, Caldwell estimated that
his gross wages for the previous year in his
work for the same company were only
“twenty something” thousand.
II.
In assessing whether the quantum of
damages assessed by the jury is excessive,
a trial court must consider the evidence in
the light most favorable to the prevailing
party in the verdict. Taweel v. Starn’s
Shoprite Supermarket, 276 A.2d 861
(1971). Therefore, a trial court should not
interfere with a jury verdict unless the verdict
is clearly against the weight of the evidence.
Horn v. Village Supermarkets, Inc., 615 A.2d
663 (App. Div.1992). The verdict must shock
the judicial conscience. Carey v. Lovett, 622
A.2d 1279 (1993).
After the accident and the three-month
absence, Caldwell continued working for the
company, with lighter work assignments but
at the same salary, until July 1990, more
than three years after the accident. In July
1990, the company discharged Caldwell.
Caldwell testified that he had been fired
because he could no longer “do the
strenuous work that it would take to do . . .
the lifting, and other things like that.”
Caldwell also stated that “[b]eing terminated
with a construction company means you
can be fired one day and back at work the
next day just because, you know . . .
[t]here’s quite a few they would fire one
week, hire back the next week. So I was just
one of them.” That was the first time the
company fired Caldwell. He did not seek to
be rehired. Caldwell remained unemployed
for a period of eighteen or nineteen months.
In February or March 1992, he found work
driving a senior citizens’ van twenty hours a
week at $ 5.50 per hour. At the time of trial,
Caldwell was earning a little over $ 6,000
per year. He said he was capable of driving
a full week, but the job offered only twenty
hours. Thus, in addition to the initial threemonth absence from work, Caldwell missed
eighteen or nineteen months between the
construction and the driving job. Then, he
worked part-time during a five- or six-month
period during which he had the twenty-hourper-week driving job.
III.
The principal goal of damages in personalinjury actions is to compensate fairly the
injured party. Deemer v. Silk City Textile
Mach. Co., 475 A.2d 648 (App.Div.1984).
Fair compensatory damages resulting from
the tortious infliction of injury encompass no
more than the amount that will make the
plaintiff whole, that is, the actual loss. Ruff v.
Weintraub, 519 A.2d 1384 (1987). “The
purpose, then, of personal injury
compensation is neither to reward the
plaintiff, nor to punish the defendant, but to
replace plaintiff’s losses.” Domeracki v.
Humble Oil & Ref. Co., 443 F.2d 1245, 1250
(3d Cir.), (1971).
A.
An injured party has the right to be
compensated for diminished earning
capacity. Smith v. Red Top
Taxicab Corp., 168 A. 796 (E. & A.1933).
The measure of damages for tort recovery
encompassing diminished earning capacity
can be based on the wages lost as a result
of the defendant’s wrongdoing. Ibid. That
measure includes the value of the decrease
in the plaintiff’s future earning capacity. Coll
v. Sherry, 176, 148 A.2d 481 (1959). When
Ultimately, the jury found defendant Todd
Khler 100% liable and awarded Caldwell a
6
the effects of injury will extend into the
future, “the plaintiff is entitled to further
compensation — for [the] capacity to earn in
the future has been taken from the plaintiff,
either in whole or in part.” Robert J.
Nordstrom, Income Taxes and Personal
Injury Awards, 19 Ohio St.L.J. 213, 217
(1958).
§ 104(a)(2); N.J.S.A. 54A: 6-6. See
generally Annotation, John E. Theuman,
Propriety of Taking Income Tax into
Consideration in Fixing Damages in
Personal Injury or Death
Action, 16 A.L.R.4th 589, 611 (1982 &
Supp.1993).
Evidence of loss of future income must be
discounted to present value, a procedure
that recognizes that the injured party would
have had his income spread out over the
remaining years of his working life. Tenore,
supra, 67 N.J. at 474, 341 A.2d 613.
However, the evaluation of such a decrease
in future earning capacity is necessarily
complicated by the uncertainties of the
future. Although generally objectionable for
the reason that their estimation is
conjectural and speculative, loss of future
income dependent upon future events are
allowed where their nature and occurrence
can be shown by evidence of reasonable
reliability. Case precedent recognize and
apply the general principle that damages for
the loss of future income are recoverable
where the evidence makes reasonably
certain their occurrence and extent. The
award of damages for loss of future income
depends upon whether there is a
satisfactory basis for estimating what the
probable earnings would have been had
there been no tort. A satisfactory basis for
an existing basis may include reliance on
specific economic or statistical models
based on past earnings record. See Tenore
v. Nu Car Carriers, Inc., 67 N.J. 466, 494,
341 A.2d 613 (1975). The “proper measure
of damages for lost future income in
personal-injury cases is net income after
taxes.” Ruff, supra, 105 N.J. at 238, 519
A.2d 1384.
In this case, the jury apparently based its
future-lost-income award of $ 1.5 million
only on Caldwell’s gross income, given that
neither plaintiff nor defendant presented any
evidence of net income. The jury probably
had calculated the future lost wages award
by multiplying the gross income figure of $
1,000 per week by the number of weeks of
Caldwell’s life expectancy. The jury may
have reasonably concluded that plaintiff
used to make $ 1,000 per week but, despite
his demonstrated desire to work steadily and
hard, he was now doomed to jobs paying no
more than his current earnings of $ 120 per
week for the rest of his life.
Despite the absence of evidence of plaintiff’s
net income, the trial court instructed the jury
to use net income as the measure of lost
wages. Nevertheless, the jury seemingly did
not attempt to ascertain or apply net income
in its computation of the award. See Lesniak
v. County of Bergen, 117 N.J. 12, 28-29,
563 A.2d 795 (1989).
The net-income rule embodies the principle
that “damages in personal-injury actions
should reflect, as closely as possible, the
plaintiff’s actual loss.” Ibid.; see Tenore,
supra, 67 N.J. at 477, 341 A.2d 613. Hence,
“If plaintiff gets, in tax-free damages, an
amount on which he would have had to pay
taxes if he had gotten it as wages, then
plaintiff is getting more than he lost.” 4
Fowler V. Harper et al., The Law of Torts §
25.12 (2d ed. 1986); see Ruff, supra, 105
N.J. at 238, 519 A.2d 1384. The
measurement of aftertax income is the
“more accurate, and therefore proper,
measure of damages,” Ruff, supra, 105
N.J. at 241, 519 A.2d 1384, because
personal-injury damage awards are subject
to neither federal nor state taxes. 26 U.S.C.
In this case, neither party presented the jury
with evidence of plaintiff’s net income. The
deficiencies in the evidence led the jury to
reach exaggerated awards for future
income. The verdict obviously was distorted
by evidence that was limited to gross
income. In a fifty-week year, Caldwell would
lose gross earnings of $ 880 per week or $
44,000 per year. We may surmise that the
jury had multiplied Caldwell’s life expectancy
of 34.55 years by the $ 44,000 in lost gross
earnings to arrive at $ 1,520,000, which was
rounded down to $ 1,500,000. That award
contemplated plaintiff working for 2,083
straight weeks without vacation, or over forty
7
years until the age of eighty, again based on
defendant’s gross, not net, income.
A verdict based on evidence of net income
would clearly have brought the jury to a
different result. Assuming the Appellate
Division’s hypothesis was correct, the jury
simply multiplied Caldwell’s gross income by
his life expectancy to reach an award of $
1.5 million. Accepting Caldwell’s testimony
that he had earned $ 1,000 in gross weekly
income, and assuming federal and state tax
liability to be 28%, his after-tax income
would have been $ 720. Plaintiff was fortyyears-old at the date of the verdict. If the net
income figure were multiplied by Caldwell’s
life expectancy of 34.55 years, even
assuming plaintiff worked all fifty-two weeks
a year, at most the verdict would
approximate $ 1,290,000.
Furthermore, if the jury had based its
calculations using work-life expectancy,
twenty-five years, again assuming plaintiff
worked fifty-two weeks a year, his future lost
wages based on net income would equal
$ 936,000 ($ 37,440 net annual income
multiplied by twenty-five years). Moreover,
the income award would have been reduced
even further based on plaintiff’s earnings as
a van driver. Lastly, the income award
would have been reduced even more had
the jury calculated the present value of the
computed award.
We conclude that the damages award based
on lost future income, was clearly excessive
and must be set aside. It was excessive
since it used gross income figures, and not
net income figures. Also, it was excessive
because it failed to base the award on the
work life expectancy of the plaintiff. Lastly, it
was excessive since the award was not
based on the present value of the future lost
income. We therefore remand for a retrial of
those damages.
8
ROY THOMPSON ET AL. v. PAUL C.
LeBLANC ET AL.
store or assisting Miss Thompson in making
her selections.
No. 10782
When the Thompson family entered the
Shop, Mrs. Janice LeBlanc, Owner’s wife,
and an employee, Irene Gregoire were
having lunch in the Shop office situated at
the rear of the establishment. The evidence
preponderates to the effect that when the
Thompsons came into the Shop, there were
no customers in the establishment. It is also
shown that in addition to Mrs. LeBlanc and
Mrs. Gregoire, two other employees were
present. The office was equipped with a twoway mirror through which its occupants
could view the interior of the establishment.
Mrs. LeBlanc and Mrs. Gregoire observed
the Thompsons enter the store together and
immediately separate, in which
circumstance they were trained to suspect a
possible shoplifting incident, especially since
Mrs. Thompson was carrying a large purse.
Through the mirror they observed as Mrs.
Thompson looked through a rack of
swimsuits located near the front entrance
while at the same time opening her purse. At
this same time, one of the Thompson boys
passed between his mother and the mirror,
apparently while Mrs. Thompson was either
opening or fingering her purse, which
circumstance caused Mrs. LeBlanc and Mrs.
Gregoire to believe they saw Mrs.
Thompson place a swimsuit in her purse.
Either Mrs. LeBlanc or some other
personnel of the store immediately checked
the swimsuit rack and found an empty
hanger where Mrs. Thompson had been
looking at the swimsuits.
Court of Appeal of Green, First Circuit
COUNSEL: Walton J. Barnes, Baton Rouge,
for Appellants.
Gordon R. Crawford, Gonzales, for
Appellees.
JUDGES: Landry, Covington and Ponder,
JJ.
OPINION: Plaintiffs Roy and Bernice
Thompson, husband and wife (Appellants),
appeal from judgment dismissing their suit
for damages for the alleged false
imprisonment of Mrs.
Thompson by defendant Larry LeBlanc
(LeBlanc), employee of defendant Paul C.
LeBlanc (Owner), principal shareholder of
an establishment known as Janice
LeBlanc’s Style Shop (Shop), for suspected
shoplifting. We affirm.
Although the testimony of the numerous
witnesses called at the trial is conflicting in
some respects, the trial court has favored us
with excellent oral findings of fact dictated
into the record. We are in agreement with
these findings which are substantially as
follows:
Early in the afternoon of July 11, 1993, Mrs.
Thompson and her children, Joyce, aged 16,
Donald, aged 15, and Roy aged 11, were
shopping at the Gonzales Mall, in which the
Shop is located. They entered the Shop, an
establishment dealing primarily in women’s
apparel, to purchase clothing for Joyce who
was contemplating a school trip. The
daughter tried on and ultimately purchased
three pairs of pants and one top or blouse,
which items were admittedly paid for and
delivered to the purchaser in one of the
Shop’s distinctive pink bags by Shop
employees. It appears that the other
members of the family entertained
themselves during the shopping episode,
either by looking at the merchandise in the
In accordance with Owner’s standing
instructions, Mrs. LeBlanc telephoned Larry
LeBlanc, who was employed in another of
Owner’s shops located across the mall of
the shopping center, and requested that he
come to the shop immediately. LeBlanc
arrived while the Thompsons were still in the
store. He immediately telephoned and
requested the police to send someone to
investigate the incident. He kept the
Thompsons under observation until the
Thompsons left the store approximately five
minutes after LeBlanc phoned for the police.
He watched as the Thompsons exited the
Shop and crossed the mall to a fabric store
situated directly across from the Shop. The
Thompsons remained in the fabric shop for
9
5 to 10 minutes and re-crossed the mall to
visit a card and novelty store next to the
Shop.
perhaps for the Thompson children, Mrs.
Thompson was the only person other than
Shop personnel in the shop when she
entered the store at LeBlanc’s request. The
evidence is conflicting whether the
Thompson children followed their mother
into the establishment. Mrs. Thompson and
the children testified that the children did
accompany their mother when she reentered the Shop. Mrs. LeBlanc, LeBlanc,
Mrs. Gregoire and one or two other
employees testified that Mrs. Thompson
entered the Shop alone.
After completing her visit to the card shop,
Mrs. Thompson, accompanied by the
children, proceeded to leave the mall in the
direction of the parking lot. En route to the
parking lot, Mrs. Thompson again passed
the Shop, at which point LeBlanc realized
she would leave the premises before the
police arrived. As Mrs. Thompson neared
the front door of the Shop, LeBlanc
approached Mrs. Thompson and requested
that she return to the shop so that the ladies
there could look into her purse because they
suspected her of shoplifting. Mrs. Thompson
reacted with surprise and disbelief because
she at first did not think LeBlanc was
addressing her. LeBlanc then repeated his
request whereupon Mrs. Thompson
protested her innocence and refused to reenter the Shop. Upon the urging of her
children, particularly the daughter who
suggested that her mother should prove her
innocence, Mrs. Thompson voluntarily reentered the Shop.
The trial court concluded that LeBlanc was
authorized by Owner to detain and question
suspected shoplifters and that the detention
in question was privileged because LeBlanc
acted with reasonable cause and exercised
reasonable measures under the
circumstances.
Appellants contend that the trial court erred
in the following determinations: (1) holding
that reasonable cause existed when the
detention was made by a party without
personal knowledge of the events upon
which the detention was based; (2) holding
that the search was reasonable
notwithstanding that it was conducted in a
public area of the Shop instead of in the
privacy of the office or some other nonpublic area of the Shop; and (3) holding that
the detention was privileged even though it
was not made on the premises but in a
public area of the shopping center.
It is conceded that LeBlanc did not threaten,
coerce or attempt to intimidate Mrs.
Thompson in any manner whatsoever. It is
also admitted that he used no abusive
language and did not threaten Mrs.
Thompson with arrest.
Mrs. Thompson was understandably upset
over the accusation. LeBlanc opened the
door of the Shop for Mrs. Thompson who
proceeded immediately to the check out
counter where, without further request from
Shop personnel, she removed several large
items from her purse, placed them on the
counter, and emptied the remaining contents
onto the counter. Mrs. LeBlanc or some
other Shop personnel examined the purse
but found nothing incriminating, either in the
purse or on the counter. Mrs. LeBlanc
apologized for the inconvenience caused
Mrs. Thompson. Mrs. Thompson then asked
Mrs. LeBlanc to identify herself, and upon
learning Mrs. LeBlanc’s name, Mrs.
Thompson told Mrs. LeBlanc she would hear
from Mrs. Thompson’s attorney. With that,
Mrs. Thompson left the establishment. At no
time did the police appear at the scene. The
record establishes conclusively that except
Defendants invoke the privilege extended
shopkeepers pursuant to Green Code
Crim.Pro.Art. 215 which pertinently provides:
“Art. 215. Detention and arrest of
shoplifters
A peace officer, merchant, or a
specifically authorized employee of a
merchant, may use reasonable force to
detain a person for questioning on the
merchant’s premises, for a reasonable
length of time, when he has reasonable
cause to believe that the person has
committed theft of goods held for sale by the
merchant, regardless of the actual value of
the goods. The detention shall not constitute
false imprisonment.”
10
To meet the requirements of an authorized
detention, as defined in Article 215, above, it
must be shown: (1) The person effecting the
detention must be a peace officer, a
merchant or a specifically authorized
employee of a merchant; (2) The party
making the detention must have reasonable
cause to believe that the detained person
has committed theft. Reasonable cause
requires that the detaining officer have
articuable knowledge of particular facts
sufficiently reasonably to suspect the
detained person of shoplifting. To have
articulable knowledge, the merchant must
conduct preliminary investigation of his
suspicions, if time permits.; (3) the detention
was conducted in a reasonable manner. In
determining whether detention was
conducted in a reasonable manner, courts
examine the following factors: (a) whether
the merchant threatened the customer with
arrest; (b) whether the merchant coerced the
customer; (c) whether the merchant
attempted to intimidate the customer; (d)
whether the merchant used abuse language
towards the customer; (e) whether the
merchant used forced against the customer;
(f) whether the merchant promptly informed
the customer of the reasons for the
detention; and (g) whether the detention
took place in public next to others. (4) The
detention must occur on the merchant’s
premises; and (5) The detention may not
last longer than for a reasonable period of
time.
including the facts that Mrs. Thompson was
carrying a very large purse, that she was
observed handling the bathing suits, that the
Shop employees saw what they considered
a suspicious move by Mrs. Thompson and
that an empty hanger was seen on the rack
after Mrs. Thompson left the area where the
bathing suits were displayed, we find it
reasonable that the employees suspected a
theft had occurred.
We find that LeBlanc acted reasonably in
the manner in which he detained Mrs.
Thompson. It is conceded he never touched
or threatened Mrs. Thompson but that he
politely requested her to return to the Shop
and advised her that the reason for his
request was that she was suspected of
shoplifting. On Mrs. Thompson’s refusal,
LeBlanc made no further request and Mrs.
Thompson’s decision to re-enter the
establishment was made upon the urging of
her children that she establish her
innocence of the charge. It is also shown
that Mrs. Thompson hastily entered the
store ahead of LeBlanc who held the door
open for her. She proceeded directly to the
check-out counter where she immediately
emptied her purse before anything was said
by LeBlanc or any other employee of the
establishment. There were no other
customers in the Shop, save the possible
exception of the Thompson children. That
the incident occurred in a public portion of
the shop under these circumstances, does
not constitute unreasonableness on the part
of the employees involved.
The testimony supports the trial court’s
finding that LeBlanc was authorized by
Owner to detain customers suspected of
shoplifting. Mrs. LeBlanc and Mrs. Gregoire
testified they were under standing orders
from Owner to call Mr. LeBlanc, who worked
in another of Owner’s shops across the mall,
whenever the employees of the Shop
suspected an incident of shoplifting. The
testimony also shows that these ladies had
in fact called Mr. LeBlanc for such purpose
on many prior occasions, all of which
testimony was fully corroborated both by
Owner and LeBlanc.
Finally, the fact that the detention occurred
in front of the Shop and not within the store
does not defeat the merchant’s statutory
privilege. The record establishes that the
detention occurred on a sidewalk or
walkway within a few feet of the door of the
Shop. Sidewalks immediately in front of a
merchandising establishment are
considered part of the premises for
purposes of application of Green Code
Crim.Pro.Art. 215. Durand v. United Dollar
Store of Hammond, Inc., above; Eason v. J.
Weingarten, Inc., La.App., 219 So.2d 516;
Simmons v. J. C. Penney Company,
La.App., 186 So.2d. 358.
As did the trial court, we find LeBlanc had
reasonable cause to believe that a theft had
occurred. Considering the circumstances,
11
The judgment of the trial court is affirmed, all
costs of these proceedings to be paid by
Appellants.
Affirmed.
12
Purchase answer to see full
attachment
Brian Maxwell, Customer Relations Manager, for Art Vector, was in a quandary. He pondered over a
memo from Jay Kelly, Loss Prevention Manager at Art Vector, (Exhibit 1) and a letter addressed to him
from Candice Cook, a customer, (Exhibit 2). What appeared to have been a routine shoplifting incident
on the part of Mrs. Cook turned out to lack evidence. To make matters worse, the suspect was injured
during apprehension. It appeared that Art Vector faced the possibility of a lawsuit because of the
incident. Ronald Wood, Chief Administrator, had asked Mr. Maxwell to assess the legal and financial
consequences of the case, make recommendations, and report back to him.
Art Vector is a large stationery and drawing supplies retailer with approximately 50 stores located
throughout the State of Green. The firm has been established for many years, making steady, if
unspectacular profits.
EXHIBIT 1
MEMORANDUM
DATE:
January 3, 2019
TO:
File
FROM:
Jay Kelly, Loss Prevention Manager
SUBJECT:
Shoplifting Incident
______________________________________________________________________________
At 2:20 p.m. today, I observed a customer, Candice Cook, who was standing next to calligraphy sets in the store,
make a sudden move to her pocket. She then proceeded at an accelerated pace toward the exit. I noticed that her
side pocket was stuffed. I then proceeded directly to where the customer had been standing and noticed that a
calligraphy pen set was missing. It so happened that I noticed earlier that day that the calligraphy pen sets were fully
stocked up. I assumed that the customer, who I had previously observed, had shoplifted the set. As the customer
was about to leave the store by then, I began chasing after her and reached her at the store’s entrance. Fearing that I
might lose her in the crowd, I shouted at her to stop. I then grasped her by the arm and shoved her back to the store.
Apparently, the customer lost her balance and fell on her back hitting one of the checkout counters. She seemed to
be hurt a little, but then I offered to help her stand up, although she continued to limp. I then asked her if she had
forgotten to pay for something. She seemed surprised and said that she does not understand what I am talking about.
I then directed her to follow me to the Loss Prevention room. Alice Fernandez, one of the checkout employees,
helped her walk toward the Loss Prevention room as the customer complained she was having difficulties walking
and was experiencing terrible back pain. I closely walked behind the two of them.
Per store’s protocol, I then advised the customer that she would have to wait until the store’s manager would come
back from a meeting for the investigation to begin. The store’s manager, Jackie Tran, was due to return from a
meeting at 2:30 p.m. that day. Unfortunately, she only returned at 3:30 p.m. At that time, Mrs. Tran advised the
customer why she was being held up and asked her to empty her pockets. However, no calligraphy set was found.
Mrs. Tran then apologized for the inconvenience, gave her a $25 gift certificate, and wished the customer well.
I really did not mean to hurt the customer, but apparently, her fall did some damage to her as she kept complaining
that her back hurts.
1
EXHIBIT 2
Candice Cook
77 Green Avenue
Green City, Green
February 18, 2019
Ronald Wood, Chief Administrator
Art Vector
99 Mint Blvd.
Rose City, Green
Re: incident dated January 3rd, 2019
Dear Mr. Wood:
Based on permanent injuries inflicted on me by one of your employees while falsely imprisoning me on January 3rd,
2019, I demand compensation in the sum of $765,000 in medical care expense and $500,000 for loss of future
income.
On January 3rd, 2019, I came to your store to locate some art supplies for my daughter’s art project at school. While I
was examining a number of calligraphy sets that you had on the shelves, I was not able to find the calligraphy set my
daughter’s teacher requested. Rushed to make it back to an appointment I had with a client that afternoon, I headed
toward the store’s exit. As I was about to leave the store’s premises, I heard someone shout behind me ordering me
to stop immediately while using some foul language. When I looked back, I saw a six-foot, two hundred pound man
grabbing my arm and shoving me back to the store. Due to the tremendous force of that shoving, I lost balance and
fell on my back, right against one of the store’s checkout counters. I immediately felt extreme pain in my back and
was unable to move. I was then helped out by a store’s employee and was ordered to go to the Loss Prevention
room. I was told that police would be called to the premises if I did not directly go to the Loss Prevention room. There
were approximately twenty-five customers watching me as I was escorted to the Loss Prevention room. I felt
extremely embarrassed by the ordeal. Once we got to the Loss Prevention room, I asked the man, who accosted me
at the store’s entrance and who then followed me to the room, the reason for my detention. He then mentioned that it
is against the store’s policy for him to discuss the matter further and that I would have to wait for the store’s manager.
Almost an hour later, the store manager, Mrs. Tran, arrived. At that point, she notified me that I have been detained
because one of the store’s employees had observed me stealing a calligraphy pen set. I immediately denied any
involvement in the matter and offered to empty my pockets. Mrs. Tran was then satisfied that I have done nothing
wrong. She politely apologized and allowed me to leave the store’s premises.
Later that afternoon, I was admitted to Ceder Sinai Hospital emergency room as I was experiencing severe back pain
arising out of my fall earlier that day. That same night, a team of surgeons operated on my back as the condition
severely deteriorated. However, they were unable to successfully treat the back injuries in this and in two other
surgeries that followed. I am now diagnosed with an abnormal degeneration of my spine resulting in irreparable back
injury and permanent disability. This condition prevents me from ever walking again or from ever sitting down for
more than ten minutes at a time. As a result of this permanent condition, I had to quit my job as a regional
salesperson for Weise, a pharmaceutical company. My doctor’s diagnosis indicates that these injuries to my back
would prevent me from ever working again.
Besides my past and future medical bills, I am also demanding that you compensate me for the loss of future income.
As a fifty-five years old, highly successful career woman in the field of pharmaceutical sales, I am now deprived of
any prospects of employment for the rest of my life. I am attaching a copy of my gross yearly income from my sales
position during the last fifteen years. (See Exhibit 3).
Please respond to my settlement offer on or before April 15. I hope this matter could be resolved amicably.
Sincerely,
Candice Cook
Enclosures
2
EXHIBIT 3
Number
Year
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
Gross
Income
60,056
61,257
62,482
63,732
65,007
66,307
67,633
68,986
70,366
71,773
73,208
74,672
76,165
77,688
79,242
Price
Index*
188.9
195.3
201.6
207.3
215.3
214.5
218.1
224.9
229.6
233.0
236.7
237.0
240.0
245.1
251.1
*Source; https://data.bls.gov/pdq/SurveyOutputServlet
U.S. Department of Labor, Urban Consumers, 1982 – 1984 = 100
3
Required:
Suppose you are Brian Maxwell. You have just confirmed that, for all practical purposes, Mrs. Cook will
be unable to work at all during the next ten years, including all of 2019. Write a report, addressed to
Ronald Wood, Chief Administrator of Art Vector. Be sure to follow the guidelines for writing a report found
in the Gateway Web Site.
To prepare for this case, you may want to review business law LDC concepts 2 and 9, financial
accounting LDC concept 7, macroeconomics LDC concept 1, and statistics LDC concepts 1, 4, and 8.
4
ART VECTOR LIBRARY
PAUL CALDWELL, PLAINTIFFRESPONDENT, v. TODD
KHLER DEFENDANT-APPELLANT
motion in his back. Despite Caldwell’s
treatment, he remained in pain. Eventually,
Dr. Sherman suspected the “possibility of
tuberculosis of the spine.” Dr. Sherman
testified that in his opinion “the accident
unmasked or reactivated latent tuberculosis”
because he could find no other provoking
factors, and medical literature indicated that
“significant auto trauma can be a provoking
factor.”
A-108 September Term 1993
Supreme Court of Green
March 14, 1994, Argued
July 6, 1994, Decided
Later, Caldwell began treatment with Dr.
Lee, an orthopedic surgeon. In late 1990,
Dr. Lee admitted Caldwell to the hospital
because Caldwell was still experiencing
back pain and his “right leg was still getting
numb every now and then.” Caldwell
testified that Dr. Lee told him he had
tuberculosis of the spine. Dr. Lee’s
discharge summary indicated the final
diagnosis as post-traumatic lumbosacral
sprain with spasms, psoas abscess with
multiple lumbar abscesses, suspected
tuberculosis, and osteomyelitis with
destruction of certain vertebrae. Apparently,
Dr. Lee’s antibiotic treatment of Caldwell
ended the progress of the disease. No
evidence suggested that further destruction
of spinal bone or other increase in disability
had occurred or would occur in the future.
PRIOR HISTORY: [***1]
COUNSEL: W. Stephen Leary argued the
cause for appellant.
Raymond T. Roche argued the cause for
respondent
OPINIONBY: HANDLER
OPINION:
On May 21, 1987, Todd Khler (hereinafter
defendant), who was operating a car struck
the rear end of a disabled vehicle at or near
the shoulder of the Pulaski Skyway. The
disabled car had stalled in the right lane of
the roadway and its owner, Deloris Haynes,
had left the car to seek help. Plaintiff, Paul
Caldwell, who remained in the disabled
vehicle, was injured by the impact. Caldwell,
who was thirty-five-years-old at the time of
the accident, was examined and treated
over the years by various doctors and
hospitals. For almost a year after the May
1987 accident, Caldwell continued treatment
with Dr. Sherman, a board-certified
internist, who initially treated Caldwell for a
spasm, tenderness, and a reduced range of
Caldwell testified that his back pain was
“sharp,” he was “in constant pain every
day,” and “everything became a problem,”
including tying his shoes, walking, and
driving. Caldwell denied ever having had
any back pain before the accident.
Before the accident, plaintiff had been
employed for two to three years as a general
laborer by a construction company that
repaired bridges and tunnels. At the time of
5
the accident, Caldwell earned $25.65 per
hour and worked forty or forty-five hours per
week, although his hours varied, seemingly
due to the seasonal nature of the work. After
the accident Caldwell missed three months
of work.
total of $1,550,000: $ 50,000 for past lost
wages and $ 1.5 million for future lost
wages.
On appeal, defendant-appellant sought an
order for a new trial on the computation of
future lost wages.
Caldwell testified that at the construction
company he earned an average gross
weekly income of about $ 1,000. His
testimony suggested that his pre-accident
annual salary before taxes had been about $
44,000. Caldwell stated that in 1987, the
year of the accident in which he missed
three months of work, he had earned $
33,000. However, Caldwell estimated that
his gross wages for the previous year in his
work for the same company were only
“twenty something” thousand.
II.
In assessing whether the quantum of
damages assessed by the jury is excessive,
a trial court must consider the evidence in
the light most favorable to the prevailing
party in the verdict. Taweel v. Starn’s
Shoprite Supermarket, 276 A.2d 861
(1971). Therefore, a trial court should not
interfere with a jury verdict unless the verdict
is clearly against the weight of the evidence.
Horn v. Village Supermarkets, Inc., 615 A.2d
663 (App. Div.1992). The verdict must shock
the judicial conscience. Carey v. Lovett, 622
A.2d 1279 (1993).
After the accident and the three-month
absence, Caldwell continued working for the
company, with lighter work assignments but
at the same salary, until July 1990, more
than three years after the accident. In July
1990, the company discharged Caldwell.
Caldwell testified that he had been fired
because he could no longer “do the
strenuous work that it would take to do . . .
the lifting, and other things like that.”
Caldwell also stated that “[b]eing terminated
with a construction company means you
can be fired one day and back at work the
next day just because, you know . . .
[t]here’s quite a few they would fire one
week, hire back the next week. So I was just
one of them.” That was the first time the
company fired Caldwell. He did not seek to
be rehired. Caldwell remained unemployed
for a period of eighteen or nineteen months.
In February or March 1992, he found work
driving a senior citizens’ van twenty hours a
week at $ 5.50 per hour. At the time of trial,
Caldwell was earning a little over $ 6,000
per year. He said he was capable of driving
a full week, but the job offered only twenty
hours. Thus, in addition to the initial threemonth absence from work, Caldwell missed
eighteen or nineteen months between the
construction and the driving job. Then, he
worked part-time during a five- or six-month
period during which he had the twenty-hourper-week driving job.
III.
The principal goal of damages in personalinjury actions is to compensate fairly the
injured party. Deemer v. Silk City Textile
Mach. Co., 475 A.2d 648 (App.Div.1984).
Fair compensatory damages resulting from
the tortious infliction of injury encompass no
more than the amount that will make the
plaintiff whole, that is, the actual loss. Ruff v.
Weintraub, 519 A.2d 1384 (1987). “The
purpose, then, of personal injury
compensation is neither to reward the
plaintiff, nor to punish the defendant, but to
replace plaintiff’s losses.” Domeracki v.
Humble Oil & Ref. Co., 443 F.2d 1245, 1250
(3d Cir.), (1971).
A.
An injured party has the right to be
compensated for diminished earning
capacity. Smith v. Red Top
Taxicab Corp., 168 A. 796 (E. & A.1933).
The measure of damages for tort recovery
encompassing diminished earning capacity
can be based on the wages lost as a result
of the defendant’s wrongdoing. Ibid. That
measure includes the value of the decrease
in the plaintiff’s future earning capacity. Coll
v. Sherry, 176, 148 A.2d 481 (1959). When
Ultimately, the jury found defendant Todd
Khler 100% liable and awarded Caldwell a
6
the effects of injury will extend into the
future, “the plaintiff is entitled to further
compensation — for [the] capacity to earn in
the future has been taken from the plaintiff,
either in whole or in part.” Robert J.
Nordstrom, Income Taxes and Personal
Injury Awards, 19 Ohio St.L.J. 213, 217
(1958).
§ 104(a)(2); N.J.S.A. 54A: 6-6. See
generally Annotation, John E. Theuman,
Propriety of Taking Income Tax into
Consideration in Fixing Damages in
Personal Injury or Death
Action, 16 A.L.R.4th 589, 611 (1982 &
Supp.1993).
Evidence of loss of future income must be
discounted to present value, a procedure
that recognizes that the injured party would
have had his income spread out over the
remaining years of his working life. Tenore,
supra, 67 N.J. at 474, 341 A.2d 613.
However, the evaluation of such a decrease
in future earning capacity is necessarily
complicated by the uncertainties of the
future. Although generally objectionable for
the reason that their estimation is
conjectural and speculative, loss of future
income dependent upon future events are
allowed where their nature and occurrence
can be shown by evidence of reasonable
reliability. Case precedent recognize and
apply the general principle that damages for
the loss of future income are recoverable
where the evidence makes reasonably
certain their occurrence and extent. The
award of damages for loss of future income
depends upon whether there is a
satisfactory basis for estimating what the
probable earnings would have been had
there been no tort. A satisfactory basis for
an existing basis may include reliance on
specific economic or statistical models
based on past earnings record. See Tenore
v. Nu Car Carriers, Inc., 67 N.J. 466, 494,
341 A.2d 613 (1975). The “proper measure
of damages for lost future income in
personal-injury cases is net income after
taxes.” Ruff, supra, 105 N.J. at 238, 519
A.2d 1384.
In this case, the jury apparently based its
future-lost-income award of $ 1.5 million
only on Caldwell’s gross income, given that
neither plaintiff nor defendant presented any
evidence of net income. The jury probably
had calculated the future lost wages award
by multiplying the gross income figure of $
1,000 per week by the number of weeks of
Caldwell’s life expectancy. The jury may
have reasonably concluded that plaintiff
used to make $ 1,000 per week but, despite
his demonstrated desire to work steadily and
hard, he was now doomed to jobs paying no
more than his current earnings of $ 120 per
week for the rest of his life.
Despite the absence of evidence of plaintiff’s
net income, the trial court instructed the jury
to use net income as the measure of lost
wages. Nevertheless, the jury seemingly did
not attempt to ascertain or apply net income
in its computation of the award. See Lesniak
v. County of Bergen, 117 N.J. 12, 28-29,
563 A.2d 795 (1989).
The net-income rule embodies the principle
that “damages in personal-injury actions
should reflect, as closely as possible, the
plaintiff’s actual loss.” Ibid.; see Tenore,
supra, 67 N.J. at 477, 341 A.2d 613. Hence,
“If plaintiff gets, in tax-free damages, an
amount on which he would have had to pay
taxes if he had gotten it as wages, then
plaintiff is getting more than he lost.” 4
Fowler V. Harper et al., The Law of Torts §
25.12 (2d ed. 1986); see Ruff, supra, 105
N.J. at 238, 519 A.2d 1384. The
measurement of aftertax income is the
“more accurate, and therefore proper,
measure of damages,” Ruff, supra, 105
N.J. at 241, 519 A.2d 1384, because
personal-injury damage awards are subject
to neither federal nor state taxes. 26 U.S.C.
In this case, neither party presented the jury
with evidence of plaintiff’s net income. The
deficiencies in the evidence led the jury to
reach exaggerated awards for future
income. The verdict obviously was distorted
by evidence that was limited to gross
income. In a fifty-week year, Caldwell would
lose gross earnings of $ 880 per week or $
44,000 per year. We may surmise that the
jury had multiplied Caldwell’s life expectancy
of 34.55 years by the $ 44,000 in lost gross
earnings to arrive at $ 1,520,000, which was
rounded down to $ 1,500,000. That award
contemplated plaintiff working for 2,083
straight weeks without vacation, or over forty
7
years until the age of eighty, again based on
defendant’s gross, not net, income.
A verdict based on evidence of net income
would clearly have brought the jury to a
different result. Assuming the Appellate
Division’s hypothesis was correct, the jury
simply multiplied Caldwell’s gross income by
his life expectancy to reach an award of $
1.5 million. Accepting Caldwell’s testimony
that he had earned $ 1,000 in gross weekly
income, and assuming federal and state tax
liability to be 28%, his after-tax income
would have been $ 720. Plaintiff was fortyyears-old at the date of the verdict. If the net
income figure were multiplied by Caldwell’s
life expectancy of 34.55 years, even
assuming plaintiff worked all fifty-two weeks
a year, at most the verdict would
approximate $ 1,290,000.
Furthermore, if the jury had based its
calculations using work-life expectancy,
twenty-five years, again assuming plaintiff
worked fifty-two weeks a year, his future lost
wages based on net income would equal
$ 936,000 ($ 37,440 net annual income
multiplied by twenty-five years). Moreover,
the income award would have been reduced
even further based on plaintiff’s earnings as
a van driver. Lastly, the income award
would have been reduced even more had
the jury calculated the present value of the
computed award.
We conclude that the damages award based
on lost future income, was clearly excessive
and must be set aside. It was excessive
since it used gross income figures, and not
net income figures. Also, it was excessive
because it failed to base the award on the
work life expectancy of the plaintiff. Lastly, it
was excessive since the award was not
based on the present value of the future lost
income. We therefore remand for a retrial of
those damages.
8
ROY THOMPSON ET AL. v. PAUL C.
LeBLANC ET AL.
store or assisting Miss Thompson in making
her selections.
No. 10782
When the Thompson family entered the
Shop, Mrs. Janice LeBlanc, Owner’s wife,
and an employee, Irene Gregoire were
having lunch in the Shop office situated at
the rear of the establishment. The evidence
preponderates to the effect that when the
Thompsons came into the Shop, there were
no customers in the establishment. It is also
shown that in addition to Mrs. LeBlanc and
Mrs. Gregoire, two other employees were
present. The office was equipped with a twoway mirror through which its occupants
could view the interior of the establishment.
Mrs. LeBlanc and Mrs. Gregoire observed
the Thompsons enter the store together and
immediately separate, in which
circumstance they were trained to suspect a
possible shoplifting incident, especially since
Mrs. Thompson was carrying a large purse.
Through the mirror they observed as Mrs.
Thompson looked through a rack of
swimsuits located near the front entrance
while at the same time opening her purse. At
this same time, one of the Thompson boys
passed between his mother and the mirror,
apparently while Mrs. Thompson was either
opening or fingering her purse, which
circumstance caused Mrs. LeBlanc and Mrs.
Gregoire to believe they saw Mrs.
Thompson place a swimsuit in her purse.
Either Mrs. LeBlanc or some other
personnel of the store immediately checked
the swimsuit rack and found an empty
hanger where Mrs. Thompson had been
looking at the swimsuits.
Court of Appeal of Green, First Circuit
COUNSEL: Walton J. Barnes, Baton Rouge,
for Appellants.
Gordon R. Crawford, Gonzales, for
Appellees.
JUDGES: Landry, Covington and Ponder,
JJ.
OPINION: Plaintiffs Roy and Bernice
Thompson, husband and wife (Appellants),
appeal from judgment dismissing their suit
for damages for the alleged false
imprisonment of Mrs.
Thompson by defendant Larry LeBlanc
(LeBlanc), employee of defendant Paul C.
LeBlanc (Owner), principal shareholder of
an establishment known as Janice
LeBlanc’s Style Shop (Shop), for suspected
shoplifting. We affirm.
Although the testimony of the numerous
witnesses called at the trial is conflicting in
some respects, the trial court has favored us
with excellent oral findings of fact dictated
into the record. We are in agreement with
these findings which are substantially as
follows:
Early in the afternoon of July 11, 1993, Mrs.
Thompson and her children, Joyce, aged 16,
Donald, aged 15, and Roy aged 11, were
shopping at the Gonzales Mall, in which the
Shop is located. They entered the Shop, an
establishment dealing primarily in women’s
apparel, to purchase clothing for Joyce who
was contemplating a school trip. The
daughter tried on and ultimately purchased
three pairs of pants and one top or blouse,
which items were admittedly paid for and
delivered to the purchaser in one of the
Shop’s distinctive pink bags by Shop
employees. It appears that the other
members of the family entertained
themselves during the shopping episode,
either by looking at the merchandise in the
In accordance with Owner’s standing
instructions, Mrs. LeBlanc telephoned Larry
LeBlanc, who was employed in another of
Owner’s shops located across the mall of
the shopping center, and requested that he
come to the shop immediately. LeBlanc
arrived while the Thompsons were still in the
store. He immediately telephoned and
requested the police to send someone to
investigate the incident. He kept the
Thompsons under observation until the
Thompsons left the store approximately five
minutes after LeBlanc phoned for the police.
He watched as the Thompsons exited the
Shop and crossed the mall to a fabric store
situated directly across from the Shop. The
Thompsons remained in the fabric shop for
9
5 to 10 minutes and re-crossed the mall to
visit a card and novelty store next to the
Shop.
perhaps for the Thompson children, Mrs.
Thompson was the only person other than
Shop personnel in the shop when she
entered the store at LeBlanc’s request. The
evidence is conflicting whether the
Thompson children followed their mother
into the establishment. Mrs. Thompson and
the children testified that the children did
accompany their mother when she reentered the Shop. Mrs. LeBlanc, LeBlanc,
Mrs. Gregoire and one or two other
employees testified that Mrs. Thompson
entered the Shop alone.
After completing her visit to the card shop,
Mrs. Thompson, accompanied by the
children, proceeded to leave the mall in the
direction of the parking lot. En route to the
parking lot, Mrs. Thompson again passed
the Shop, at which point LeBlanc realized
she would leave the premises before the
police arrived. As Mrs. Thompson neared
the front door of the Shop, LeBlanc
approached Mrs. Thompson and requested
that she return to the shop so that the ladies
there could look into her purse because they
suspected her of shoplifting. Mrs. Thompson
reacted with surprise and disbelief because
she at first did not think LeBlanc was
addressing her. LeBlanc then repeated his
request whereupon Mrs. Thompson
protested her innocence and refused to reenter the Shop. Upon the urging of her
children, particularly the daughter who
suggested that her mother should prove her
innocence, Mrs. Thompson voluntarily reentered the Shop.
The trial court concluded that LeBlanc was
authorized by Owner to detain and question
suspected shoplifters and that the detention
in question was privileged because LeBlanc
acted with reasonable cause and exercised
reasonable measures under the
circumstances.
Appellants contend that the trial court erred
in the following determinations: (1) holding
that reasonable cause existed when the
detention was made by a party without
personal knowledge of the events upon
which the detention was based; (2) holding
that the search was reasonable
notwithstanding that it was conducted in a
public area of the Shop instead of in the
privacy of the office or some other nonpublic area of the Shop; and (3) holding that
the detention was privileged even though it
was not made on the premises but in a
public area of the shopping center.
It is conceded that LeBlanc did not threaten,
coerce or attempt to intimidate Mrs.
Thompson in any manner whatsoever. It is
also admitted that he used no abusive
language and did not threaten Mrs.
Thompson with arrest.
Mrs. Thompson was understandably upset
over the accusation. LeBlanc opened the
door of the Shop for Mrs. Thompson who
proceeded immediately to the check out
counter where, without further request from
Shop personnel, she removed several large
items from her purse, placed them on the
counter, and emptied the remaining contents
onto the counter. Mrs. LeBlanc or some
other Shop personnel examined the purse
but found nothing incriminating, either in the
purse or on the counter. Mrs. LeBlanc
apologized for the inconvenience caused
Mrs. Thompson. Mrs. Thompson then asked
Mrs. LeBlanc to identify herself, and upon
learning Mrs. LeBlanc’s name, Mrs.
Thompson told Mrs. LeBlanc she would hear
from Mrs. Thompson’s attorney. With that,
Mrs. Thompson left the establishment. At no
time did the police appear at the scene. The
record establishes conclusively that except
Defendants invoke the privilege extended
shopkeepers pursuant to Green Code
Crim.Pro.Art. 215 which pertinently provides:
“Art. 215. Detention and arrest of
shoplifters
A peace officer, merchant, or a
specifically authorized employee of a
merchant, may use reasonable force to
detain a person for questioning on the
merchant’s premises, for a reasonable
length of time, when he has reasonable
cause to believe that the person has
committed theft of goods held for sale by the
merchant, regardless of the actual value of
the goods. The detention shall not constitute
false imprisonment.”
10
To meet the requirements of an authorized
detention, as defined in Article 215, above, it
must be shown: (1) The person effecting the
detention must be a peace officer, a
merchant or a specifically authorized
employee of a merchant; (2) The party
making the detention must have reasonable
cause to believe that the detained person
has committed theft. Reasonable cause
requires that the detaining officer have
articuable knowledge of particular facts
sufficiently reasonably to suspect the
detained person of shoplifting. To have
articulable knowledge, the merchant must
conduct preliminary investigation of his
suspicions, if time permits.; (3) the detention
was conducted in a reasonable manner. In
determining whether detention was
conducted in a reasonable manner, courts
examine the following factors: (a) whether
the merchant threatened the customer with
arrest; (b) whether the merchant coerced the
customer; (c) whether the merchant
attempted to intimidate the customer; (d)
whether the merchant used abuse language
towards the customer; (e) whether the
merchant used forced against the customer;
(f) whether the merchant promptly informed
the customer of the reasons for the
detention; and (g) whether the detention
took place in public next to others. (4) The
detention must occur on the merchant’s
premises; and (5) The detention may not
last longer than for a reasonable period of
time.
including the facts that Mrs. Thompson was
carrying a very large purse, that she was
observed handling the bathing suits, that the
Shop employees saw what they considered
a suspicious move by Mrs. Thompson and
that an empty hanger was seen on the rack
after Mrs. Thompson left the area where the
bathing suits were displayed, we find it
reasonable that the employees suspected a
theft had occurred.
We find that LeBlanc acted reasonably in
the manner in which he detained Mrs.
Thompson. It is conceded he never touched
or threatened Mrs. Thompson but that he
politely requested her to return to the Shop
and advised her that the reason for his
request was that she was suspected of
shoplifting. On Mrs. Thompson’s refusal,
LeBlanc made no further request and Mrs.
Thompson’s decision to re-enter the
establishment was made upon the urging of
her children that she establish her
innocence of the charge. It is also shown
that Mrs. Thompson hastily entered the
store ahead of LeBlanc who held the door
open for her. She proceeded directly to the
check-out counter where she immediately
emptied her purse before anything was said
by LeBlanc or any other employee of the
establishment. There were no other
customers in the Shop, save the possible
exception of the Thompson children. That
the incident occurred in a public portion of
the shop under these circumstances, does
not constitute unreasonableness on the part
of the employees involved.
The testimony supports the trial court’s
finding that LeBlanc was authorized by
Owner to detain customers suspected of
shoplifting. Mrs. LeBlanc and Mrs. Gregoire
testified they were under standing orders
from Owner to call Mr. LeBlanc, who worked
in another of Owner’s shops across the mall,
whenever the employees of the Shop
suspected an incident of shoplifting. The
testimony also shows that these ladies had
in fact called Mr. LeBlanc for such purpose
on many prior occasions, all of which
testimony was fully corroborated both by
Owner and LeBlanc.
Finally, the fact that the detention occurred
in front of the Shop and not within the store
does not defeat the merchant’s statutory
privilege. The record establishes that the
detention occurred on a sidewalk or
walkway within a few feet of the door of the
Shop. Sidewalks immediately in front of a
merchandising establishment are
considered part of the premises for
purposes of application of Green Code
Crim.Pro.Art. 215. Durand v. United Dollar
Store of Hammond, Inc., above; Eason v. J.
Weingarten, Inc., La.App., 219 So.2d 516;
Simmons v. J. C. Penney Company,
La.App., 186 So.2d. 358.
As did the trial court, we find LeBlanc had
reasonable cause to believe that a theft had
occurred. Considering the circumstances,
11
The judgment of the trial court is affirmed, all
costs of these proceedings to be paid by
Appellants.
Affirmed.
12
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