Brown v. Winn-Dixie Atlanta, Inc.

389 S.E.2d 530, 194 Ga. App. 130, 1989 Ga. App. LEXIS 1710
CourtCourt of Appeals of Georgia
DecidedNovember 30, 1989
DocketA89A1584
StatusPublished
Cited by8 cases

This text of 389 S.E.2d 530 (Brown v. Winn-Dixie Atlanta, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Winn-Dixie Atlanta, Inc., 389 S.E.2d 530, 194 Ga. App. 130, 1989 Ga. App. LEXIS 1710 (Ga. Ct. App. 1989).

Opinions

Beasley, Judge.

Plaintiff Brown appeals the grant of judgment in favor of defendant Winn-Dixie Atlanta, Inc., notwithstanding the jury verdict in her favor, OCGA § 9-11-50 (b). Her suit is for the store’s negligence in failing to protect her from the tortious misconduct of its employee (OCGA § 51-1-1), false imprisonment, (OCGA § 51-7-20), intentional infliction of emotional distress (see Crowe v. J. C. Penney, Inc., 177 Ga. App. 586, 588 (1) (340 SE2d 192) (1986), slander (OCGA § 51-5-4), and bad faith and stubborn litigiousness (OCGA § 13-6-11), stemming from an incident while Brown was shopping.

The following is undisputed. At about 1:00 p.m. Brown’s neighbor gave her a ride to Winn-Dixie. Brown went into the store and selected several food items including a container of Brunswick stew from the delicatessen. She was assisted at the deli by store employee Gates. Brown went through the express checkout lane and paid for these items at 1:15 p.m. or 1:16 p.m. Just after she had paid for the groceries, Brown realized that she had forgotten to buy some personal items. She knew the express lane cashier and asked her if she could leave her paid-for groceries at the counter while she went back to get the other items. Knowing the store well, Brown immediately located what she wanted, returned to the express lane, and purchased these items at 1:18 p.m.

Brown left the store with her purchases. She got into her neighbor’s car and ate the Brunswick stew. As Brown and her neighbor were about to drive off, Brown spied an acquaintance and asked for a ride home. The woman agreed but had to shop first. So five to seven minutes after Brown had left the store, she reentered with the acquaintance. Before Brown went in, she tossed the empty stew container into a trash can. Brown began to shop and selected several food items including half a cooked chicken from the deli. Employee [131]*131Gates noticed that the stew Brown had selected earlier was not in the basket Brown was carrying. Gates had not seen Brown purchase the stew.

The store had been having problems with people getting food and taking it into the bathroom or leaving it on the shelves, i.e., not purchasing it, so employees were instructed to report to their supervisor when they saw a customer order something and then saw the customer again but without the ordered item. Gates suspected that Brown perhaps had not wanted the stew, had left it on the shelf or thrown it in the trash. She did not know what Brown had done with the stew, so she reported it to assistant manager Fields.

Fields suspected that Brown had not paid for the stew. He went to the checkout line where Brown was paying for the new purchases to verify that the stew was absent. After Brown got through checking out at 1:35 p.m., Fields asked her about the absent stew. The brief encounter between Brown and Fields is the basis of the litigation.

This court must view the evidence at trial in the light most favorable to Brown. See Pendley u. Pendley, 251 Ga. 30, 31 (1) (302 SE2d 554) (1983). Brown’s version of the incident was that as she was about to leave the store, Fields came up to her and said, “Where is the Brunswick stew you had?” Brown said, “Excuse me?” Fields again asked where the stew was. Brown asked, “Why?” Fields said, “Because you didn’t pay for it.” Brown walked Fields down to the express checkout lane to verify that she had paid for the stew. She felt she had to prove herself at that point or she would not have been able to leave the store. The entire incident lasted two to three minutes. When cross-examined as to whether or not Fields had enough facts for him to have reasonably stepped up and asked where the Brunswick stew was, Brown at first said no but then added that the questioning but not its manner might have been reasonable.

A fellow customer’s deposition testimony confirmed that Fields confronted Brown about the stew. The customer stated that Fields had accused Brown of shoplifting and that Brown was restrained because Fields was standing in front of Brown.

OCGA § 51-7-60 precludes recovery for detention or arrest for suspicion of shoplifting under certain circumstances. It provides that no recovery can be had by the plaintiff “where it is established by competent evidence: (1) That the plaintiff had so conducted himself or behaved in such manner as to cause a man of reasonable prudence to believe that the plaintiff, at or immediately prior to the time of the detention or arrest, was committing the offense of shoplifting, as defined by Code Section 16-8-14; or (2) That the manner of the detention or arrest and the length of time during which such plaintiff was detained was under all the circumstances reasonable.” The two conditions for the absolute defense must both exist. K Mart Corp. v. [132]*132Adamson, 192 Ga. App. 884 (386 SE2d 680) (1989).

By the statute, “the General Assembly provided a reasonable course of conduct which a merchant may follow in affording protection to his displayed merchandise without incurring an unreasonable exposure to tort liability in doing so . . . the merchant and his agents are . . . protected against liability if their conduct springs from a reasonable belief that the party detained or arrested was engaged in shoplifting in his store. [Cits.]” Swift v. S. S. Kresge Co., 159 Ga. App. 571, 573 (2) (284 SE2d 74) (1981).

The undisputed evidence showed that the store had a problem with deli items being served but not paid for. Brown had gone twice to the deli in the space of a few minutes, carrying other groceries. She had made three shopping forays in approximately twenty minutes. Neither deli clerk Gates nor Fields saw Brown check out the first two times. Neither saw Brown pay for the stew, even though Gates observed Brown, and Fields went to the checkout line to investigate for himself.

While questions of whether a defendant acted with reasonable prudence or whether the manner and length of the detention were reasonable are usually matters for the jury, they are not always so and may, under particular circumstances, be determinable as a matter of law. Crowe, supra at 588 (2). “ ‘What facts and circumstances amount to probable cause is a pure question of law.’ ” K Mart Corp. v. Griffin, 189 Ga. App. 225, 226 (375 SE2d 257) (1988).

Considering all the undisputed facts, Fields had cause as a reasonably prudent person to believe that Brown had not paid for the Brunswick stew. Brown herself testified that an inquiry under the circumstance might have been reasonable. As to the other factor required for the defense, the manner and length of the momentary encounter and simple questioning under the circumstances was reasonable as a matter of law and could not be found to constitute a tortious detention. See Lord v. K-Mart Corp., 177 Ga. App. 651 (1) (340 SE2d 225) (1986) [physical precedent only].

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Brown v. Winn-Dixie Atlanta, Inc.
389 S.E.2d 530 (Court of Appeals of Georgia, 1989)

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Bluebook (online)
389 S.E.2d 530, 194 Ga. App. 130, 1989 Ga. App. LEXIS 1710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-winn-dixie-atlanta-inc-gactapp-1989.