Present: Carrico, C.J., Compton, Stephenson, * Lacy, Hassell,
Keenan, and Koontz, JJ.
CARLOTTA JURY
v. Record No. 962341 OPINION BY JUSTICE ELIZABETH B. LACY
September 12, 1997
GIANT OF MARYLAND, INC., ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
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
*
Justice Stephenson participated in the hearing and
decision of this case prior to the effective date of his
retirement on July 1, 1997.
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
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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
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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
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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
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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.
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