Watkins v. Sears Roebuck & Co.

Appellate Division of the Supreme Court of New York

Watkins v. Sears Roebuck & Co.

289 A.D.2d 73, 735 N.Y.S.2d 75, 2001 N.Y. App. Div. LEXIS 12075

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 11, 2001

StatusPublished

Cited by1 cases

This text of 289 A.D.2d 73 (Watkins v. Sears Roebuck & Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Watkins v. Sears Roebuck & Co., 289 A.D.2d 73, 735 N.Y.S.2d 75, 2001 N.Y. App. Div. LEXIS 12075 (N.Y. Ct. App. 2001).

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Opinion

Judgment, Supreme Court, Bronx County (Howard Silver, J.), entered May 22, 2001, dismissing the action for assault and battery upon defendant’s motion for judgment as a matter of law made at the close of plaintiffs case, unanimously affirmed, without costs.

The action was properly dismissed upon plaintiffs trial testimony that his leg was broken when he was tackled from behind, without warning, by a security guard employed by defendant retail store, after he exited the store at a rapid pace with a stolen “boom box” knowing that he might be stopped or chased. Nothing in plaintiffs testimony indicates that he would have heeded a warning to stop, and the guard’s use of force admittedly stopped once plaintiff hit the ground (compare, Taggart v Alexander’s, Inc., 90 AD2d 542). Given these circumstances, the non-deadly force used by the guard in apprehending a fleeing shoplifter was reasonable as a matter of law (see, General Business Law § 218; cf., Penal Law § 35.30 [4]; see, Sindle v New York City Tr. Auth., 33 NY2d 293, 296-297; cf., e.g., Brown v State of New York, 250 AD2d 796). We have considered plaintiff’s other arguments and find them unavailing. Concur — Rosenberger, J. P., Williams, Tom, Mazzarelli and Ellerin, JJ.

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Judgment, Supreme Court, Bronx County (Howard Silver, J.), entered May 22, 2001, dismissing the action for assault and battery upon defendant’s motion for judgment as a matter of law made at the close of plaintiffs case, unanimously affirmed, without costs.

The action was properly dismissed upon plaintiffs trial testimony that his leg was broken when he was tackled from behind, without warning, by a security guard employed by defendant retail store, after he exited the store at a rapid pace with a stolen “boom box” knowing that he might be stopped or chased. Nothing in plaintiffs testimony indicates that he would have heeded a warning to stop, and the guard’s use of force admittedly stopped once plaintiff hit the ground (compare, Taggart v Alexander’s, Inc., 90 AD2d 542). Given these circumstances, the non-deadly force used by the guard in apprehending a fleeing shoplifter was reasonable as a matter of law (see, General Business Law § 218; cf., Penal Law § 35.30 [4]; see, Sindle v New York City Tr. Auth., 33 NY2d 293, 296-297; cf., e.g., Brown v State of New York, 250 AD2d 796). We have considered plaintiff’s other arguments and find them unavailing. Concur — Rosenberger, J. P., Williams, Tom, Mazzarelli and Ellerin, JJ.

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Bluebook (online)

289 A.D.2d 73, 735 N.Y.S.2d 75, 2001 N.Y. App. Div. LEXIS 12075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watkins-v-sears-roebuck-co-nyappdiv-2001.

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