Hernandez v. Schwegmann Giant Supermarkets

464 So. 2d 902, 1985 La. App. LEXIS 8237
CourtLouisiana Court of Appeal
DecidedFebruary 12, 1985
DocketCA-2304
StatusPublished
Cited by11 cases

This text of 464 So. 2d 902 (Hernandez v. Schwegmann Giant Supermarkets) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hernandez v. Schwegmann Giant Supermarkets, 464 So. 2d 902, 1985 La. App. LEXIS 8237 (La. Ct. App. 1985).

Opinion

464 So.2d 902 (1985)

Carolina HERNANDEZ
v.
SCHWEGMANN GIANT SUPERMARKETS, et al.

No. CA-2304.

Court of Appeal of Louisiana, Fourth Circuit.

February 12, 1985.

*903 Julian R. Murray, Jr., Romualdo Gonzalez of Murray, Murray, Braden, Landry & Gonzalez, New Orleans, for appellee.

C. Monk Simons, III, New Orleans, for appellants.

Before GULOTTA, BYRNES and CIACCIO, JJ.

CIACCIO, Judge.

Carolina Hernandez filed suit to recover damages resulting from her false detention and arrest by a security guard employed by Schwegmann Bros. Giant Supermarkets, Inc. A jury rendered judgment for the plaintiff and awarded her damages of $23,000. The defendants appeal this judgment and we affirm.

The facts surrounding this incident are in conflict.

On May 28, 1979 at approximately midday, the plaintiff and her twelve year old son were shopping at the defendant's supermarket located at 5300 Old Gentilly Road in New Orleans. According to the plaintiff, she selected several meat items during her shopping tour. She chose, among other items, two roasts. However, being of the opinion that she only needed the smaller roast, she returned the second roast to the meat freezer. She spent approximately 50 minutes shopping and checked out of aisle number 19 where she paid $160 for her purchases. According to Ms. Hernandez, shortly after making her purchases, she was confronted by Albert Roger, a security guard employed by the supermarket. Mr. Roger told the plaintiff that he needed to check a discrepancy and he then began to search Ms. Hernandez's grocery bags. Mr. Roger took a roast from the bag and instructed the plaintiff to go with him to the meat department, which she did. The roast was given to a woman in the meat department and she was instructed to weigh the roast. According to the plaintiff, the roast was weighed out of the presence of herself and the security guard. During this time, Mr. Roger was searching through the roast section of the meat counter, but he did not find anything. The plaintiff was then escorted back to the security office and told that there was a discrepancy in the actual cost of the roast and the amount she paid for it. Ms. Hernandez then offered to pay the difference, but she was told that she should relinquish her driver's license, sit down, and "shut up." The plaintiff was not afforded an opportunity for an explanation. The New Orleans police were called and, while awaiting their arrival, the plaintiff expressed concern for her son. Ms. Hernandez was allowed to call her family so that they could come to retrieve the boy. The plaintiff was instructed that her son would be turned over to juvenile authorities if her family did not arrive in time to take custody of the boy before the local police were ready to escort her to Central Lockup. The plaintiff's brother-in-law arrived and Ms. Hernandez gave him custody of her minor son and also the keys to her car. She was escorted by the New Orleans police through the parking lot to an awaiting patrol car. She was then taken to Central Lockup where she was searched, her valuable possessions were taken for inventory and she was placed in a holding cell. She was later fingerprinted and photographed and then returned to the cell to await her release on bond. Approximately four hours following her arrest, Ms. Hernandez was released when her brother-in-law posted a bond on her behalf.

The plaintiff thereafter secured medical treatment and hired an attorney to represent her on the criminal charges involved. *904 The plaintiff went to court two times on the criminal charge, but each time the complaintant failed to appear and the charge was thereafter dismissed.

Albert Roger, the Schwegmann security guard, gave a different recitation of the facts. He testified that on the date in question he observed the plaintiff select two roasts and place both roasts in her shopping cart. She was then seen leaving the meat counter and she proceeded into the hardware department. While in the hardware section of the store, according to Mr. Roger, the plaintiff was observed switching the price tags of the two roasts. Mr. Roger stated that he observed the price on the tags as being $6.85 and $9.10, respectively. He further stated that the $6.85 tag was placed on the roast worth $9.10 and the $9.10 price tag was discarded in a trash can in the hardware department. The smaller roast was then deposited, by Ms. Hernandez, back into the meat freezer in the section reserved for roasts. The defendant testified that he then attempted to retrieve the roast from the meat counter, but he was unsuccessful, as there were several roasts without price tags. His attempts to recover the discarded price tag also proved unsuccessful as the porter had already emptied the trash from the container.

Roger testified that he stopped Ms. Hernandez after the cashier had checked her out and he told her there might be a problem with the price of the meat, so he wanted her to accompany him to the security office. They thereafter went to the meat counter where the subject roast was weighed in their presence and a price of $9.90[1] was revealed. Roger then informed Ms. Hernandez that there existed a $3.10 price difference and that it was the store's policy to detain her for the local police. Roger thereafter summoned the police and prepared a report of the incident. The New Orleans police arrived and removed Ms. Hernandez to Central Lockup.

The issues presented on appeal are: Did the defendant have reasonable grounds to believe a theft was committed, so as to result in their immunity from suit? Did the jury err in awarding damages in the amount of $23,000? and, Did an unfavorable presumption arise because of the plaintiff's failure to call the dermatologist who treated her?

Liability

The defendants contend that they are immune from tort liability because their actions in detaining and arresting the plaintiff were grounded upon a reasonable belief that she had committed a theft. See: C.Cr.P. Art. 215.

This Court, in Duhe v. Schwegmann Brothers Giant Super Markets, 384 So.2d 1019 at 1019-1020, addressed this issue:

It has been made statutorily and jurisprudentially clear that a merchant is entitled to make a reasonable investigation and to exercise reasonable force to detain a person for questioning, where reasonable cause exists to believe the person detained has committed a theft of merchandise. LSA-C.Cr.P. article 215; Thompson v. LeBlanc, 336 So.2d 344 (La.App. 1st Cir.1976), writ refused 339 So.2d 26 [La.]; Mullen v. Schwegmann Brothers Giant Super Market, Inc., 378 So.2d 510 (La.App. 4th Cir.1979); Levy v. Duclaux, 324 So.2d 1 (La.App. 4th Cir. 1975), writ refused 328 So.2d 887 [La. 1976]; Brown v. Hartford Ins. Co., 370 So.2d 179 (La.App. 3rd Cir.1979); Sapp v. J.A. West Co., 352 So.2d 268 (La.App. 2nd Cir.1977), writ denied, 353 So.2d 1337 (La.1978).

The determination of whether a proprietor has reasonable cause to detain an individual suspected of shoplifting is a factual question and, as such, will not be reversed absent a clear abuse of discretion. Brown v. Hartford Insurance Co., 370 So.2d 179 (La.App., 3rd Cir., 1979) citing Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978).

In this case the existence (or non-existence) of reasonable cause rested upon a *905 credibility determination. Clearly the jury accepted the testimony of Ms. Hernandez and rejected that of the defendants. Ms.

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Bluebook (online)
464 So. 2d 902, 1985 La. App. LEXIS 8237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-schwegmann-giant-supermarkets-lactapp-1985.