FILED
SEPTEMBER 1,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
BEYONCE NIEVES, ) No. 32510-5-111 ) Appellant, ) ) v. ) UNPUBLISHED OPINION ) WAL-MART STORES, INC., )
a foreign corporation, )
)
Respondent. )
LAWRENCE-BERREY, J. - Beyonce Nieves filed suit against Wal-Mart Stores.
She claimed that Wal-Mart was liable under a theory of respondeat superior for torts
committed by its security employee who restrained her in the course ofhis shoplifting
investigation. The jury returned a defense verdict. On appeal, Ms. Nieves contends that
the trial court erred (I) in giving a jury instruction based on the shopkeeper's privilege
statute, RCW 4.24.220, and (2) by failing to grant her motion for judgment as a matter of
law on her claim of assault. We disagree with her contentions and affirm. No. 32S10-S-III Nieves v. Wal-Mart Stores, Inc.
FACTS
On the evening of December 9,2011, Beyonce Nieves entered the Wal-Mart store
on Wellesley Avenue in Spokane. She was wearing a hooded jacket and sweatpants. The
hood of her sweatshirt was raised and covered her head. She was also wearing a small
backpack that served as her purse. The store's video surveillance system began recording
her movements once she entered the store. One of the store's asset protection associates,
Jeremiah Blackwell, observed Ms. Nieves when she walked past him with her hood up
and her head down. Mr. Blackwell decided to follow her and observe her activities
because he thought she was attempting to conceal her face in a suspicious manner. At
trial, Ms. Nieves testified that she was looking down when she entered the store because
she was tying the string on her sweatpants.
Ms. Nieves first went to the section of the store where women's stockings were
displayed for sale. She checked to see if she could find her size and color of stockings.
When she could not find her size or color, she took two boxes to a store associate and
asked if the associate could find that color or size size for her. Ms. Nieves testified the
store associate told her all the stockings would be out on the shelves. Ms. Nieves stated
she left the two boxes of stockings with the store associate who said she would put them
back on the shelves. Ms. Nieves walked back to the shelves where she had found the
No. 32510-5-II1
Nieves v. Wal-Mart Stores, Inc.
stockings to double check that her size and color of stockings were not there. Ms. Nieves
testified that after checking the stocking display a second time and not finding anything,
she browsed through a couple other areas of the store. Ms. Nieves walked to the section
where Christmas trees were displayed. She took a picture of a tree and sent it to her sister
along with several other texts. She then decided to leave and continued texting as she
was walking out of the store. She testified that she did not have any merchandise
concealed on her person as she was walking out ofWal-Mart.
Mr. Blackwell's testimony at trial contradicted Ms. Nieves's as to what happened
while she was in the store. From his own observations, he testified that she threw a box
of stockings into a shopping cart that was in the aisle with her. She approached the fitting
room associate and talked with the associate about two boxes of stockings that she was
holding in her hands. Rather than leaving the two boxes of stockings with the store
employee, Ms. Nieves carried them back to the stocking aisle and concealed them
underneath her jacket. She discarded the two empty boxes into the same shopping cart
she had placed the other box of stockings previously. He believed she concealed
stockings from the first box as well, but he only saw her conceal stockings from the
second and third boxes. He also believed she concealed the stockings inside her bra or
No. 32SI0-S-II1
undergarment. He followed Ms. Nieves the entire time she was in the store. He testified
she never discarded the stockings.
Ms. Nieves testified that after she passed through the front doors, and while she
was still texting, she felt somebody grab and pull on her backpack. She had not heard any
one speaking to her prior to feeling someone pull on her backpack. While the person was
pulling on her backpack, she was pulling the other direction and asking who was doing so
and why. She testified that the person began holding onto the handle of the backpack as
well as her jacket and was twisting them to prevent losing hold of her, and in the process
of holding and twisting these items, she was being choked. She started trying to get out
of the backpack and was able to slip out of the straps. She turned around to see Mr.
Blackwell standing there. Mr. Blackwell told her to return store merchandise. Ms.
Nieves said she did not have any to return. She testified that she then unzipped and
opened her coat, lifted up her shirt, and also dropped her pants to prove she did not have
anything concealed.
Mr. Blackwell's testimony again differed from Ms. Nieves's as to the events
outside the store's front doors. He testified that he called to Ms. Nieves to get her
attention after she passed through the front doors. After not getting a response, he
reached out saying he was with security, and then grabbed the loop on the top of her
No. 3251 0-5-II1
backpack with his left index finger. Ms. Nieves turned around to face him and told him
to let go of her. He asked her to come back inside the store with him so he could recover
the merchandise, but she refused and continued to pull away toward the parking lot. He
testified that he continued holding onto her backpack while waiting for her to comply
with his request to return to the store. He denied ever choking Ms. Nieves or dragging
her backwards. She wiggled out of the backpack and faced him, still holding onto the
strap while he was holding onto the handle. She released the strap and started to remove
her clothes to show him that she did not have anything concealed. Although he never saw
any items concealed on her person when she removed her clothing, he testified he
believed she still had items concealed in her clothes in parts that she did not reveal.
Ms. Nieves asked Mr. Blackwell to return her backpack, which he was still
holding. He replied that he would not and that Ms. Nieves needed to come back into the
store so they could talk. Ms. Nieves said she would not go back into the store because
she had not done anything wrong. Ms. Nieves told Mr. Blackwell she was going to call
the police to report that he had assaulted her. She started to walk away, and Mr.
Blackwell offered to return her bag. But she left her bag with Mr. Blackwell, saying she
was going to get her mother, and she would return. She and her mother both called the
police several times about the incident.
Nieves v. Waf-Mart Stores, Inc.
After Ms. Nieves left the store, Mr. Blackwell wrote a report on the incident and
pulled video footage of what happened. He also went back and retrieved three empty
stocking packages from the shopping cart. He took a picture of the boxes and attached it
to his report.
After returning to the store, Ms.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED
SEPTEMBER 1,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
BEYONCE NIEVES, ) No. 32510-5-111 ) Appellant, ) ) v. ) UNPUBLISHED OPINION ) WAL-MART STORES, INC., )
a foreign corporation, )
)
Respondent. )
LAWRENCE-BERREY, J. - Beyonce Nieves filed suit against Wal-Mart Stores.
She claimed that Wal-Mart was liable under a theory of respondeat superior for torts
committed by its security employee who restrained her in the course ofhis shoplifting
investigation. The jury returned a defense verdict. On appeal, Ms. Nieves contends that
the trial court erred (I) in giving a jury instruction based on the shopkeeper's privilege
statute, RCW 4.24.220, and (2) by failing to grant her motion for judgment as a matter of
law on her claim of assault. We disagree with her contentions and affirm. No. 32S10-S-III Nieves v. Wal-Mart Stores, Inc.
FACTS
On the evening of December 9,2011, Beyonce Nieves entered the Wal-Mart store
on Wellesley Avenue in Spokane. She was wearing a hooded jacket and sweatpants. The
hood of her sweatshirt was raised and covered her head. She was also wearing a small
backpack that served as her purse. The store's video surveillance system began recording
her movements once she entered the store. One of the store's asset protection associates,
Jeremiah Blackwell, observed Ms. Nieves when she walked past him with her hood up
and her head down. Mr. Blackwell decided to follow her and observe her activities
because he thought she was attempting to conceal her face in a suspicious manner. At
trial, Ms. Nieves testified that she was looking down when she entered the store because
she was tying the string on her sweatpants.
Ms. Nieves first went to the section of the store where women's stockings were
displayed for sale. She checked to see if she could find her size and color of stockings.
When she could not find her size or color, she took two boxes to a store associate and
asked if the associate could find that color or size size for her. Ms. Nieves testified the
store associate told her all the stockings would be out on the shelves. Ms. Nieves stated
she left the two boxes of stockings with the store associate who said she would put them
back on the shelves. Ms. Nieves walked back to the shelves where she had found the
No. 32510-5-II1
Nieves v. Wal-Mart Stores, Inc.
stockings to double check that her size and color of stockings were not there. Ms. Nieves
testified that after checking the stocking display a second time and not finding anything,
she browsed through a couple other areas of the store. Ms. Nieves walked to the section
where Christmas trees were displayed. She took a picture of a tree and sent it to her sister
along with several other texts. She then decided to leave and continued texting as she
was walking out of the store. She testified that she did not have any merchandise
concealed on her person as she was walking out ofWal-Mart.
Mr. Blackwell's testimony at trial contradicted Ms. Nieves's as to what happened
while she was in the store. From his own observations, he testified that she threw a box
of stockings into a shopping cart that was in the aisle with her. She approached the fitting
room associate and talked with the associate about two boxes of stockings that she was
holding in her hands. Rather than leaving the two boxes of stockings with the store
employee, Ms. Nieves carried them back to the stocking aisle and concealed them
underneath her jacket. She discarded the two empty boxes into the same shopping cart
she had placed the other box of stockings previously. He believed she concealed
stockings from the first box as well, but he only saw her conceal stockings from the
second and third boxes. He also believed she concealed the stockings inside her bra or
No. 32SI0-S-II1
undergarment. He followed Ms. Nieves the entire time she was in the store. He testified
she never discarded the stockings.
Ms. Nieves testified that after she passed through the front doors, and while she
was still texting, she felt somebody grab and pull on her backpack. She had not heard any
one speaking to her prior to feeling someone pull on her backpack. While the person was
pulling on her backpack, she was pulling the other direction and asking who was doing so
and why. She testified that the person began holding onto the handle of the backpack as
well as her jacket and was twisting them to prevent losing hold of her, and in the process
of holding and twisting these items, she was being choked. She started trying to get out
of the backpack and was able to slip out of the straps. She turned around to see Mr.
Blackwell standing there. Mr. Blackwell told her to return store merchandise. Ms.
Nieves said she did not have any to return. She testified that she then unzipped and
opened her coat, lifted up her shirt, and also dropped her pants to prove she did not have
anything concealed.
Mr. Blackwell's testimony again differed from Ms. Nieves's as to the events
outside the store's front doors. He testified that he called to Ms. Nieves to get her
attention after she passed through the front doors. After not getting a response, he
reached out saying he was with security, and then grabbed the loop on the top of her
No. 3251 0-5-II1
backpack with his left index finger. Ms. Nieves turned around to face him and told him
to let go of her. He asked her to come back inside the store with him so he could recover
the merchandise, but she refused and continued to pull away toward the parking lot. He
testified that he continued holding onto her backpack while waiting for her to comply
with his request to return to the store. He denied ever choking Ms. Nieves or dragging
her backwards. She wiggled out of the backpack and faced him, still holding onto the
strap while he was holding onto the handle. She released the strap and started to remove
her clothes to show him that she did not have anything concealed. Although he never saw
any items concealed on her person when she removed her clothing, he testified he
believed she still had items concealed in her clothes in parts that she did not reveal.
Ms. Nieves asked Mr. Blackwell to return her backpack, which he was still
holding. He replied that he would not and that Ms. Nieves needed to come back into the
store so they could talk. Ms. Nieves said she would not go back into the store because
she had not done anything wrong. Ms. Nieves told Mr. Blackwell she was going to call
the police to report that he had assaulted her. She started to walk away, and Mr.
Blackwell offered to return her bag. But she left her bag with Mr. Blackwell, saying she
was going to get her mother, and she would return. She and her mother both called the
police several times about the incident.
Nieves v. Waf-Mart Stores, Inc.
After Ms. Nieves left the store, Mr. Blackwell wrote a report on the incident and
pulled video footage of what happened. He also went back and retrieved three empty
stocking packages from the shopping cart. He took a picture of the boxes and attached it
to his report.
After returning to the store, Ms. Nieves talked to a member of management and
asked to file an incident report, which she did. While at the store the second time, she
discovered she had'" bruising and slight scratch marks'" on her neck. Report of
Proceedings (RP) at 92.
Officer Nathan Donaldson of the Spokane Police Department arrived at the Wal-
Mart and talked to Ms. Nieves, who told him she had been assaulted by a Wal-Mart
employee. Officer Donaldson took Ms. Nieves's statement. He went inside the store to
investigate the incident. Officer Donaldson took Mr. Blackwell's statement in the store's
security office. Mr. Blackwell also gave Officer Donaldson the report he had written
about the incident and let him review the video he had compiled.
Officer Donaldson determined from his on-scene investigation that probable cause
did not exist to arrest Mr. Blackwell for assault. He based his determination on the
surveillance video Mr. Blackwell had compiled, which he said was in conflict with what
Ms. Nieves had told him. Officer Donaldson did find probable cause to cite Ms. Nieves
No. 32S10-S-III
for theft based on statements from Mr. Blackwell and the physical evidence ofthe empty
women's stocking containers. The State, however, dismissed the charge very early in the
criminal proceedings.
On January 27, 2012, Ms. Nieves contacted the police to file another report about
the incident on December 9, 2011, claiming again that she was assaulted by Mr.
Blackwell. Officer Donaldson responded. Officer Donaldson testified that Ms. Nieves
gave a similar statement about the incident with Mr. Blackwell, but added that Mr.
Blackwell had choked her for approximately 10 minutes during their struggle, and that he
had also dragged her backwards with enough force that it required her to take about four
steps to keep from being pulled off her feet. In contrast, Ms. Nieves testified she told
Officer Donaldson that it seemed like Mr. Blackwell was choking her for 10 minutes.
Ms. Nieves also told Officer Donaldson that she sustained some bruising on the right side
of her neck from the incident.
Officer Donaldson took additional statements from Mr. Blackwell and reviewed
the video again. Officer Donaldson attempted to corroborate Ms. Nieves's new statement
with the video footage but found they were inconsistent. He believed based on the video
that Ms. Nieves's neck injury was possibly caused by the backpack straps rubbing against
her neck, from her own action. The officer again did not find probable cause to
recommend any charges against Mr. Blackwell.
Ms. Nieves filed a complaint for damages against Wal-Mart under the doctrine of
respondeat superior related to the actions of its employee, Mr. Blackwell, in detaining her
on December 9,2011. Ms. Nieves asserted (1) assault and battery, (2) unlawful
imprisonment, and (3) outrage.
During the jury instruction conference, Wal-Mart proposed that the jury be
instructed on the shopkeeper's privilege statute, RCW 4.24.220. Both sides presented
arguments. Ms. Nieves objected to the instruction arguing that it was not supported by
the evidence because Mr. Blackwell's actions constituted an assault as a matter of law,
which is not privileged under the statute. Additionally, she argued that the "reasonable
means" requirement under the statute meant that one could not claim the protection of the
statute if one committed an assault (by way of an offensive touching) to accomplish the
detention. The trial court ultimately decided to give the contested instruction, stating that
the statute's reasonableness requirements set up factual questions for the jury, and that
there were "plenty of facts" presented by each side from which the jury could decide
"whether this was an assault or a reasonable act in terms of stopping somebody." RP at
215. Additionally, the court determined that RCW 4.24.220 was "clearly an applicable
No. 3251 O·5-III
statute designed for precisely these types of cases where somebody is detained." RP at
215. The contested instruction stated:
In any civil action brought by reason of any person having been detained on or in the immediate vicinity of the premises of a mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise, it shall be a defense of such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a peace officer or by the owner of the mercantile establishment, his or her authorized employee or agent, and that such peace officer, owner, employee, or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit larceny or shoplifting on such premises of such merchandise. As used in this section, "reasonable grounds" shall include, but not be limited to, knowledge that a person has concealed possession of unpurchased merchandise of a mercantile establishment, and a "reasonable time" shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise. It is the defendant's burden to prove this defense by a preponderance of the evidence.
Clerk's Papers (CP) at 41.
The jury returned a defense verdict. The jury answered "no" to the first three
questions on the special verdict form, finding that the defendant did not commit
(l) assault, (2) outrage, or (3) false imprisonment. Because they answered "no" to the
first three questions, the jury did not answer question 4 on the special verdict form, which
summarized the defense contained in the shopkeeper's privilege statute.
No. 3251 0-5-III
After the jury reached its verdict and the trial court dismissed the jury, Ms. Nieves
brought an oral motion for "judgment notwithstanding the verdict." RP at 234. The court
did not rule on the oral motion, but instead suggested that Ms. Nieves file a written
motion. On April 24, 2014, Ms. Nieves filed a written motion for judgment as a matter of
law pursuant to CR 50 on her assault claim. Ms. Nieves contended that Mr. Blackwell
had committed an assault as a matter of law when he grabbed her from behind. The trial
court denied Ms. Nieves's motion for judgment as a matter of law and entered judgment
in favor of the defendant.
Ms. Nieves appeals.
ANALYSIS
Ms. Nieves contends that the trial court erred (1) in giving the shopkeeper's
privilege instruction, and (2) in denying her motion for judgment as a matter of law on her
claim for assault.
1. Whether the trial court erred in giving the shopkeeper's privilege instruction
Ms. Nieves assigns error to the trial court's giving of the shopkeeper's privilege
instruction and asks this court to remand for a new trial. Ms. Nieves contends that as a
matter of law, the shopkeeper's privilege can never be given when facts establish an
assault because an assault is never a reasonable manner of detaining a suspected
No. 32510-5-111 Nieves v. Wal-Mart Stores, Inc.
shoplifter. She also contends that giving the shopkeeper's privilege instruction
prejudiced her by allowing the jury to conclude, contrary to law, that while Mr.
Blackwell's conduct amounted to an assault, it was nevertheless reasonable under the
circumstances and privileged under the statute.
The standard of review of this alleged error depends on whether the trial court's
decision to give the instruction was based upon a matter of law or a matter of fact. If
based upon a matter oflaw, our review is de novo; ifbased upon a factual dispute, our
review is abuse of discretion. See State v. Walker, 136 Wn.2d 767,771-72,966 P.2d 883
(1998).
The civil shopkeeper's privilege statute permits store personnel to detain a
suspected shoplifter (1) in a reasonable manner (2) for a reasonable time (3) if they have
reasonable grounds to believe the person is committing or attempting to commit larceny
or shoplifting. State v. Johnston, 85 Wn. App. 549, 554,933 P.2d 448 (1997);
RCW 4.24.220. Ms. Nieves takes issue only with the first prong. She argues that the
protection of the statute does not apply here because Wal-Mart's employee committed an
assault against her, and an assault is never a "reasonable manner."
Ms. Nieves's argument presupposes that an assault was committed against her. As
mentioned above, the jury by special verdict found that no assault had occurred.
No. 325lO-5-I11
Instruction 8 defined assault as "a hannful or offensive contact." CP at 37. Ms. Nieves
does not assign error to this instruction, so it becomes the law of the case. State v'.
France, 180 Wn.2d 809, 814,329 P.3d 864 (2014). A reviewing court will not disturb
the verdict ifthere is substantial evidence to support it. Burnside v. Simpson Paper Co.,
123 Wn.2d 93, 107-08,864 P.2d 937 (1994). Substantial evidence is "'sufficient
evidence to persuade a rational, fair-minded person of the truth of the premise.'"
Parrott-Horjes v. Rice, 168 Wn. App. 438,445,276 P.3d 376 (2012) (quoting Westmark
Dev. Corp. v. City ofBurien, 140 Wn. App. 540, 557, 166 P.3d 813 (2007». "In
reviewing the evidence, the appellate court does not reweigh the evidence, draw its own
inferences, or substitute its judgment for the jury." Westmark Dev., 140 Wn. App. at 557.
Here, the evidence allowed the jury to find that an assault did not occur. Wal-Mart
presented evidence that once Ms. Nieves exited the doors, Mr. Blackwell attempted to get
her attention. When this attempt failed, Mr. Blackwell identified himself as security and
grabbed the loop on her backpack to prevent her from continuing. A jury could
reasonably find that this "contact" was neither hannful nor offensive. A jury could also
find that Ms. Nieves's continuing struggle to free herself rather than complying with
security was an unreasonable response which acted as a superseding cause to any injury
No. 3251O-5-III
sustained by her. Because disputed facts allowed the jury to find that no assault occurred,
we review the giving of the instruction under an abuse of discretion standard.
In deciding to instruct the jury on the shopkeeper's privilege statute, the trial court
detennined that the statute's reasonableness requirements set up factual questions for the
jury and, that in this case, there were "plenty of facts" presented by each side from which
the jury could decide "whether this was an assault or a reasonable act in tenns of stopping
somebody." RP at 215. Additionally, the court found RCW 4.24.220 to be "clearly an
applicable statute designed for precisely these types of cases where somebody is
detained." RP at 215.
We agree with the trial court that this factual pattern was the type envisioned by
the legislature when it enacted this statute. We hold that the trial court did not abuse its
discretion by giving the shopkeeper's privilege instruction in this case.
2. Whether the trial court erred in denying Ms. Nieves's motion for judgment as a matter oflaw
Ms. Nieves assigns error to the trial court's denial of her motion for judgment as a
matter of law on her assault claim. She argues that she was entitled to this remedy when
the testimony at trial established as a matter of law that an assault was committed. Again,
Ms. Nieves presupposes that Wal-Mart's employee committed an assault against her, and
as explained above, substantial evidence supports the jury's finding that no assault
13 No. 32510-5-111 Nieves v. Wal-Mart Stores, Inc.
occurred. We conclude that the trial court did not err in denying her motion for judgment
as a matter of law.
Affirm.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
Brown, A.C.J. Fearing, 1.