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Gau v. Smitty''s Super Valu Inc.8/3/1995
t." Restatement (Second) of Torts § 35. These requirements may give rise to material issues of fact. Because a suspect and child might be detained for different lengths of time or separated and exposed to different circumstances of confinement, the unreasonably lengthy or intrusive or abusive confinement that establishes false imprisonment of the suspect might not pertain to or establish false imprisonment of the child. The given instruction was, therefore, overbroad, though we do not preclude the drafting of an appropriately narrowed linking instruction upon remand.
III
Smitty's argues that it was entitled to a directed verdict on the question whether it had reasonable cause to detain Yan Gau. We agree.
A merchant may detain a suspected shoplifter without incurring liability if the storekeeper has reasonable cause to believe that the person shoplifted and if the detention is performed in a reasonable manner and for a reasonable length of time. A.R.S. § 13-1805; Gortarez v. Smitty's Super Valu, Inc., 140 Ariz. 97, 103-05, 680 P.2d 807, 813-15 (1984). If the facts and reasonable inferences therefrom are not subject to material dispute, reasonable cause is a question of law to be determined by the court. Koepnick v. Sears Roebuck & Co., 158 Ariz. 322, 326, 762 P.2d 609, 613 (App. 1988); see also Gortarez, 140 Ariz. at 104, 680 P.2d at 814.
Yan Gau picked up the sandals, placed them in the cart, covered them with an advertising flier, and left the store without paying for them. This may have been inadvertent; it may have been deliberate; but the appearance was such that it gave Smitty's reasonable cause for suspicion of shoplifting. Because no factfinder could reasonably conclude otherwise, the trial court should have directed a verdict for Smitty's on the issue of reasonable cause and narrowed the issue to whether the length and manner of detention were reasonable.
IV
Yan Gau argues that she is entitled to judgment as a matter of law on her false imprisonment claim because the detention was unreasonable as a matter of law. She contends that Smitty's unreasonably delayed calling the police and exceeded the scope of its statutory authority when its security guard photographed Yan Gau and searched her purse against her will.
A.R.S. § 13-1805(C) grants merchants the authority to
with reasonable cause, [ ] detain on the premises in a reasonable manner and for a reasonable time any person suspected of shoplifting . . . for questioning or summoning a law enforcement officer.
The statute does not authorize merchants to search the detained person or her possessions. But Yan Gau did not raise this issue in the trial court; thus it provides no basis for relief upon appeal. See Schoenfelder v. Arizona Bank, 165 Ariz. 79, 796 P.2d 881 (1990).
Conclusion
For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.
NOEL FIDEL, Presiding Judge
CONCURRING:
WILLIAM F. GARBARINO, Judge
SHELDON H. WEISBERG, Judge
Page 1 2 3 4 Arizona Personal Injury Attorneys
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