CHAPTER 13 ASSIGNMENTS

In each of the following exercises, the assignment is to prepare an office memorandum. Each assignment contains the assignment memo from the supervisory attorney that includes all the available facts of the case. Complete the memo based on these facts. If additional facts need to be identified, note this in the recommendations section of the memo. When preparing the heading of each assignment, use your name for the “To” line, and put “Supervisory Attorney” after the “From.”

Following each assignment is a reference to the applicable enacted and case law. In some assignments, the case citation includes a reference only to the regional reporter citation; the state reporter citation is not included. Use only the citation presented in the assignment.

The first time you cite the opinion, use the citation format you are given for the opinion in the assignment.

For Example: Melia v. Dillon Companies, Inc., 18 Kan. App. 2d 5, 846 P.2d 257 (1993).

This is how you should cite this opinion the first time it is used in the memorandum. When you need to quote from an opinion in the memo, cite to the regional reporter page cite only.

For Example: Melia, 846 P.2d at 258, or Id. at 258.

The page number where each page begins is printed in bold and preceded by two asterisks.

◩ Martin Melia filed suit seeking compensatory and punitive damages against Dillon **259 Companies, Inc., (Dillon) upon allegations of false imprisonment and malicious prosecution. The jury returned a verdict in favor of Melia, awarding compensatory damage of $20,200.

Page 259 begins after **259.

Do not conduct additional research. Complete the assignment using the facts, enacted law, and case law contained in each assignment. For purposes of the assignments, assume the cases have not been overturned or modified by subsequent court decisions.

ASSIGNMENT 1

To: (Your name)

From: Supervisory Attorney

Re: Duran v. Shoptown

Janet Duran was shopping at Shoptown, a local grocery store. She thought she needed only a few items, so she didn’t get a grocery cart. As she shopped, she realized she needed another item. Her hands being full, she put the extra item, nail polish, in her coat pocket. Later she realized she didn’t need the polish and put it back. A store security person saw her put the polish in her pocket but did not see her put it back. When she left the store, the guard stopped her and took her to the manager’s office, stating she was being held for shoplifting. The store manager searched her purse and told her to empty her pockets. The security person and the manager were both extremely rude. After she emptied her pockets and the manager searched her purse, the store manager told her she could leave. Mrs. Duran was upset and embarrassed by the ordeal and she wants to sue.

What is the likelihood of Mrs. Duran prevailing on a false imprisonment claim?

Statutory Law: Kan. Stat. Ann. § 21-3424, Criminal Restraint

“(1) Unlawful restraint is knowingly and without legal authority restraining another so as to interfere substantially with his liberty.

….

(3) Any merchant, his agent or employee, who has probable cause to believe that a person has actual possession of and (a) has wrongfully taken, or (b) is about to wrongfully take merchandise from a mercantile establishment, may detain such person (a) on the premises or (b) in the immediate vicinity thereof, in a reasonable manner and for a reasonable period of time for the purpose of investigating the circumstances of such possession. Such reasonable detention shall not constitute an arrest nor an unlawful restraint.”

Case Law: Melia v. Dillon Companies, Inc., 18 Kan. App. 2d 5, 846 P.2d 257 (1993). The case is presented in Chapter 4, Web Assignment 3.

ASSIGNMENT 2

To: (Your name)

From: Supervisory Attorney

Re: Frampton v. City

On the evening of January 15, city police officers stopped Jerry Myers on suspicion of drunk driving. One passenger, Susan Lane, accompanied Mr. Myers. Mr. Myers was obviously intoxicated and arrested for DUI. Although officers smelled alcohol on Susan’s breath, it did not appear to them that she was intoxicated. Susan had been taking drugs in addition to drinking. The officers did not require Susan to take a field sobriety test. After talking to her for a few minutes and determining that she lived only two blocks away, they decided it was safe for her to drive the automobile to her house. On the way home, she lost control of the vehicle and it swerved into a car driven by our client, Mrs. Frampton, who suffered extensive injuries.

We intend to sue the city for negligence. With the above facts in mind, prepare a memo addressing the following questions:

1. Did the officers owe a duty of care to Mrs. Frampton?

2. Are the city police officers’ actions protected by sovereign immunity?

Controlling Law: Assume the common law of Florida provides that the four elements of negligence are duty, breach, proximate cause and damages.

Fla. Stat. Ann. § 768.28(1) (West 1997) Waiver of sovereign immunity in tort actions, provides:

“In accordance with s. 13, Art. X, State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury...caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee’s office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.”

Case Law: Henderson v. Bowden, 737 So.2d 532 (Fla 1999). The case is presented below.

ASSIGNMENT 3.

To: (Your name)

From: Supervisory Attorney

Re: McKnown v. Grieten

On July 6, our client, Johann Grieten, gave his daughter, Joanne, the car keys and told her to drive to the shopping mall and purchase some paint. The mall is approximately eight miles from their home. He told her, “Go directly to the mall and come directly home. Don’t, I repeat, don’t go anywhere else. Don’t go to your friends house, don’t go shopping.” Joanne purchased the paint and returned home. Her father had gone to a neighbor’s and was not home. He left a note saying, “I’ll be back in a couple of hours.” Joanne’s friend Sally called and said, “You’ve got to see the new car my dad is going to buy me.” As Joanne drove to the dealership to meet Sally, she failed to yield at a stop sign and collided with Jeffery McKnown’s car. McKnown is suing Mr. Grieten. Mr. Grieten owns the car his daughter was driving. Under state law, is Mr. Grieten liable given the fact that his daughter exceeded his instructions in regard to the use of the car?

Statutory Law: Minn Stat. Ann. § 170.54 Driver deemed agent of owner.

“Whenever any motor vehicle shall be operated within this state, by any person other than the owner, with the consent of the owner, express or implied, the operator thereof shall in case of accident, be deemed the agent of the owner of such motor vehicle in the operation thereof.”

Case Law: Jones v. Fleischhacker, 325 N.W.2d 633 ( Minn. 1982). The case is presented below.

ASSIGNMENT 4

Perform Assignments 1 through 3 using your state’s statutory and case law.

ASSIGNMENT 1 CASE

Martin MELIA, Appellee,

v.

DILLON COMPANIES, INC., Appellant.

No. 67939.

18 Kan.App.2d 5,846 P.2d 257 (1993)

.

**258

Before BRISCOE, C.J., RULON, J., and DAVID S. KNUDSON, District Judge, Assigned.

DAVID S. KNUDSON, District Judge, Assigned.

Martin Melia filed suit seeking compensatory and punitive damages against Dillon **259 Companies, Inc., (Dillon) upon allegations of false imprisonment and malicious prosecution. The jury returned a verdict in favor of Melia, awarding compensatory damage of $20,200. The trial court additionally imposed punitive damages of $20,000. Dillon appeals, contending the trial court erred in not granting its motion for directed verdict. We agree and reverse the judgment of the trial court.

Randy Atkin, head of security for the Dillon's store in this case, observed Melia leave the store without paying for a pouch of tobacco. Melia had placed the tobacco in his shirt pocket prior to leaving the store. Atkin stopped Melia in the store's parking lot, at which time Melia stated he had forgotten to pay for the tobacco. Believing he would be allowed to pay for the tobacco, Melia agreed to reenter the store with Atkin.

Once inside the store, Atkin informed Melia the incident would be treated as a shoplifting offense. Melia followed Atkin into a conference room in the store. Melia attempted to explain he had unintentionally left the store without paying for the tobacco, but Atkin refused to listen. Atkin informed Melia that, pursuant to Dillon's policy, the police would be called and a complaint would be filed. Atkin indicated this process would take approximately 45 minutes. Since he had recently been released from the hospital with a heart condition, Melia requested that he be allowed to telephone his wife and explain why he would be late returning home. Atkin initially refused, but later relented and allowed Melia to call his wife.

A police officer arrived at the store and investigated the alleged incident. The officer discussed the incident with Atkin and then took Melia's statement. A notice to appear in municipal court on a charge of theft was issued, and Melia was informed he was free to leave. Melia was held in the conference room approximately one hour. At trial in municipal court, Melia was found not guilty of theft.

In ruling on a motion for directed verdict, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and, where reasonable minds could reach different conclusions based on the evidence, the motion must be denied and the matter submitted to the jury. This rule must also be applied when appellate review is sought on a motion for directed verdict. Simon v. National Farmers Organization, Inc., 250 Kan. 676, 683, 829 P.2d 884 (1992).

False Imprisonment Claim

[1] In evaluating the merits of Melia's false imprisonment claim, the following provisions of K.S.A. 213424 are controlling:

"(1) Unlawful restraint is knowingly and without legal authority restraining another so as to interfere substantially with his liberty.

....

"(3) Any merchant, his agent or employee, who has probable cause to believe that a person has actual possession of and (a) has wrongfully taken, or (b) is about to wrongfully take merchandise from a mercantile establishment, may detain such person (a) on the premises or (b) in the immediate vicinity thereof, in a reasonable manner and for a reasonable period of time for the purpose of investigating the circumstances of such possession. Such reasonable detention shall not constitute an arrest nor an unlawful restraint."

Although 213424 is a criminal statute, the merchant's defense set forth in subsection (3) is applicable to civil actions for false imprisonment. Alvarado v. City of Dodge City, 238 Kan. 48, 60, 708 P.2d 174 (1985).

[2] Dillon asserts that, in this case, the merchant's defense operated to preclude any recovery for false imprisonment by Melia. According to Dillon, Melia's concealment of the tobacco provided probable cause to believe a theft was occurring. Melia contends the merchant's defense does not apply because mere possession of the tobacco did not establish probable cause to believe he was shoplifting.

**260 [3] Probable cause such as may justify a detention exists where the facts and circumstances within the knowledge of the one who is detaining are sufficient to warrant a person of reasonable caution to believe that the person detained has committed an offense. See State v. Morin, 217 Kan. 646, Syl. ¶ 1, 538 P.2d 684 (1975). Here, Melia removed tobacco from a display in the store and concealed it from view by placing it in his shirt pocket. He then left the store without paying for the tobacco. Based on his observations of these acts, Atkin had probable cause to believe Melia had wrongfully removed the tobacco from the premises.

Melia argues that, under the terms of the statute, possession of property is insufficient grounds for detention where the suspect asserts the taking was an innocent mistake. This argument is not persuasive. Atkin's observation of Melia's actions was sufficient to create probable cause to detain Melia. See Whitlow v. Bruno's Inc., 567 So.2d 1235, 123839 (Ala.1990) (store manager who observed plaintiff going through checkout line and exiting store without paying for videotape rentals had probable cause to detain plaintiff in spite of plaintiff's claim she forgot to pay the rental fees; summary judgment entered in favor of store on plaintiff's false imprisonment claim); Prieto v. May Department Stores Company, 216 A.2d 577, 579 (D.C.App.1966) (in determining whether probable cause existed to support plaintiff's detention, the court viewed the actions of a store detective based on what he observed rather than what may have been in the mind of plaintiff); Fields v. Kroger Company, 202 Ga.App. 475, 47576, 414 S.E.2d 703 (1992) (Georgia statute precluding recovery for false imprisonment upon a showing that a store owner reasonably believed the person detained was a shoplifter "implicitly recognizes the right of a shop owner to protect himself from shoplifting by detaining a customer who has acted in a suspicious manner").