Gortarez v. Smitty's Super Valu, Inc.

Supreme Court of Arizona, En Banc · 1984 · Torts

Tortsfalse imprisonmentfalse arrestassault and batteryshopkeeper's privilegeshopkeeper's privilegereasonable causeprobable cause

Facts

A store clerk saw 16-year-old Gortarez pick up a 59-cent vaporizer after asking if he could pay for it at the front, then followed him and his cousin Hernandez through the store without seeing them pay for or dispose of the item. After the pair exited through an unattended checkout aisle, the clerk told the assistant manager and security guard Gibson that the two had taken merchandise. In the parking lot, Gibson immediately seized and searched Hernandez without first asking him to remain or inquiring about the item, while Gortarez protested that the vaporizer was still in the store. When Gortarez pushed Gibson away from Hernandez, Gibson put Gortarez in a choke hold and held him until employees discovered the vaporizer in a basket at the unattended checkout stand.

Issue

Whether the trial court properly ruled as a matter of law that defendants were protected by Arizona's shopkeeper's privilege on the false arrest and false imprisonment claims. Also, whether the jury should have been instructed on withdrawal as part of self-defense on the assault and battery claim.

Rule

Under A.R.S. § 13-1805, a merchant's shopkeeper's privilege applies only if the merchant or employee had reasonable cause, detained the suspect for the statutory purpose of questioning or summoning a law enforcement officer, and carried out the detention in a reasonable manner and for a reasonable time. Reasonable cause is the threshold requirement only; if any of the three elements is missing, the privilege does not apply. Force likely to cause serious bodily harm is not privileged for mere detention to investigate, and in the ordinary case force is not justified until the person has been requested to remain unless there is no time for such a request or it would obviously be futile.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a grocery store in Tucson, clerk Mia Torres sees Devin Cole place a phone charger in his jacket pocket and walk past the registers without paying. Outside the exit, store supervisor Neil Rojas calmly asks Devin to step back inside, tells him he is being detained for questioning about unpaid merchandise, and calls local police; Devin is held for three minutes without force until officers arrive.

If Devin sues for false imprisonment, which is the strongest argument that the store is protected by the shopkeeper's privilege?

Explanation. The majority held that the statutory privilege requires all three elements: reasonable cause, detention for the proper statutory purpose of questioning or summoning law enforcement, and a detention conducted in a reasonable manner and for a reasonable time. Reasonable cause alone is only a threshold requirement. Here, the facts support each element, so the privilege most likely applies.