Home / Fulltext Opinions / Supreme Court of Virginia / JURY v. GIANT OF MARYLAND, INC., et al.


MARYLAND, INC., et al.

September 12, 1997
Record No. 962341





Michael P. McWeeny, Judge
Present: Carrico, C.J., Compton, Stephenson,[1] Lacy, Hassell, Keenan,
and Koontz, JJ.

In this appeal, we consider whether Code ? 18.2-105 provides a
merchant absolute immunity from civil liability for assault and
battery, negligence, and intentional infliction of emotional
distress alleged to have occurred during the detention of a
customer suspected of shoplifting.

On January 23, 1993, 46-year-old Carlotta Jury went to a Giant
Food store in Annandale, Virginia, to exchange a prescription for
her niece and purchase some other items. She left two of her
children, ages three and ten, in her car. After exchanging the
prescription and selecting some batteries and hair ties, she
returned to the front of the store, ready to check out. At that
point, a man who did not identify himself approached her, grabbed
her arm, and told her to accompany him. When she refused, he hit
her in the chest, causing her to fall backward into the aisle
between the cash registers. As Jury attempted to catch her
breath, the man continued to lean over her and tried to jerk her
up by pulling on her arm. Another unidentified man approached
and, along with the first man, took Jury to a storage area in the
back of the store. The first man twisted Jury’s arm behind her
back and shoved her while walking her to the back of the store.
Jury later discovered that the first man who approached her was
Arthur Bridcott, a security guard for the Giant Food store, and
the second man was James Parker, manager of the store.

As the three reached the back of the store, one of the men
kicked Jury in the back of the leg, knocking her to the floor.
Her face fell in a pile of dirt, and the men were
"scrounging" her face in the dirt. Jury tried to ask
what was going on, but they told her to "[s]hut up,"
"[y]ou’re a thief," and "[w]e’re taking care of
this and we’re going to take care of you." The men called
Jury crude and obscene names and subjected her to similarly crude
and obscene remarks and gestures. Parker, the manager, picked
Jury up off the floor by her hair, pulling some of it out of her
head, and "stomped" on her foot. The men refused to
allow her to use the restroom, and when she tried to tell them
that her children were in the car and she was worried about them,
the men responded "we’ll take care of that or Social
Services will."

Jury was detained in the back of the store for approximately
one hour. The security guard, Bridcott, told Jury that they would
let her go if she provided a written confession and if she would
not come back to the store. She refused, stating that she had
done nothing wrong. Parker asked Bridcott what merchandise Jury
had concealed, and Bridcott responded that Jury had taken
possession of batteries and hair ties. The men handcuffed Jury
and summoned the police. Jury was arrested and escorted to the
police station. She was released later that evening and went to
the hospital the next day. At the hospital, Jury was treated,
x-rayed, bandaged, given medication and a neck collar, and
advised to see an orthopedic doctor.

Jury was subsequently convicted of concealment of merchandise
in the general district court. That conviction was reversed on
appeal to the circuit court.

Jury filed a motion for judgment alleging assault and battery,
negligence, and intentional infliction of emotional distress,
against Giant of Maryland, Inc. and its employees involved in
Jury’s detention at the Giant Food store (collectively
"Giant"). She sought recovery for injuries she
sustained during her detention. Prior to trial, Giant’s motion
for summary judgment on the assault and battery and negligence
claims was granted and the claims were dismissed based on the
trial court’s determination that ? 18.2-105 granted
Giant immunity from civil liability for these claims.

Following Jury’s presentation of evidence on her intentional
infliction of emotional distress claim, the trial court granted
Giant’s motion to strike, holding that ? 18.2-105 also
provided Giant with immunity from civil liability based on this
claim. We awarded Jury an appeal and, because we concur with
Jury’s assertion that ? 18.2-105
does not provide a merchant with absolute immunity, we will
reverse the judgment of the trial court and remand the case for
further proceedings.

Code ? 18.2-105
provides in pertinent part that:

[a] merchant, agent or employee of the merchant, who
causes the arrest or detention of any person . . .
shall not be held civilly liable for unlawful detention, if
such detention does not exceed one hour, slander, malicious
prosecution, false imprisonment, false arrest, or assault and
battery of the person so arrested or detained . . .
provided that . . . the merchant, agent or employee
. . . had at the time of such arrest or detention
probable cause to believe that the person had shoplifted or
committed willful concealment of goods or merchandise.

We construed this statute in F.B.C. Stores, Inc. v. Duncan,
214 Va. 246, 198 S.E.2d 595 (1973), as encompassing
"virtually all of the intentional torts to person recognized
at common law" and determined that the "scope" of
the immunity "intended by the General Assembly was very
broad." Id. at 249, 198 S.E.2d at 598. We also,
however, reaffirmed the principle that, in construing statutes,
"courts presume that the legislature never intends
application of the statute to work irrational consequences."
Id. at 249-50, 198 S.E.2d at 598.

Construing this statute to provide absolute immunity as the
trial court has done, and as Giant urges here, requires the
conclusion that the General Assembly intended to shield a
merchant, its agents or employees, from any and all types of
assaults and batteries. Under this construction, a merchant would
not be civilly liable for breaking a suspected shoplifter’s legs
or for other extreme assaultive actions taken to detain a
suspected shoplifter. We cannot ascribe such an intent to the
General Assembly.

Because we have concluded that the immunity granted by ? 18.2-105 is not
absolute, we must determine the scope of that immunity. We are
again guided by Duncan. In that case, we stated that the
statute represented the General Assembly’s attempt to
"strike a balance between one man’s property rights and
another man’s personal rights." Id. at 251, 198
S.E.2d at 599. The statute "enlarged" a merchant’s
rights to protect his property, but did not enlarge them
"infinitely," and diminished, but did not extinguish,
"the litigable rights of the public."

As applied to the issue in this case, we conclude that the
balance between personal and property rights in ? 18.2-105 is achieved
by providing immunity from civil liability based on a wide range
of torts, but not extending such immunity in circumstances in
which the tort is committed in a willful, wanton or otherwise
unreasonable or excessive manner. Under our construction,
merchants, their agents or employees are shielded from civil
liability for actions reasonably necessary to protect the owners’
property rights by detaining suspected shoplifters. But,
individuals retain their "litigable rights" in the
circumstances just noted. This construction of the statute is
also consistent with the limitations imposed on other legislative
grants of immunity from civil liability. See, e.g.,
?? 8.01-220.1:1,
-225, -225.1, -226.2, -226.3; 22.1-303.1; 54.1-2502, -2907,
-2908, -2922, -2923, -2924.

In light of our construction of the statute, we conclude that
dismissing Jury’s motion for judgment on the basis that ? 18.2-105 provided
Giant with absolute immunity from the claims asserted by Jury was
error. Accordingly, we will reverse the judgment of the trial
court and remand the case for further proceedings, consistent
with this opinion.

Reversed and remanded.





[1] Justice Stephenson participated
in the hearing and decision of this case prior to the effective
date of his retirement on July 1, 1997.