dissenting.
The trial court and the majority have concluded that, as a matter of law, defendant Winn-Dixie, Inc., is sheltered from tort liability under the provisions of OCGA § 51-7-60. However, when the evidence is viewed in the light most favorable to plaintiff Brown, I cannot agree that her conduct presented any basis for a reasonable belief that she was engaged in shoplifting. Therefore, since OCGA § 51-7-60 (1) & (2) must be read in the conjunctive, defendant may not rely upon this statutory protection from liability. K Mart Corp. v. Adamson, 192 Ga. App. 884 (386 SE2d 680). It follows that in my view, the jury’s verdict was authorized by the evidence at trial and the trial court’s entry of judgment notwithstanding the verdict was error. Therefore, I respectfully dissent from the affirmance of the trial court’s ruling overturning the verdict of the jury.
In order to properly consider the issues presented in the case sub judice, it may be helpful to recall that the criteria set forth in the first numbered paragraph of OCGA § 51-7-60 is “merely a restatement of the probable cause standard. . . .” J. C. Penney Co. v. Miller, 182 Ga. App. 64, 66 (3) (354 SE2d 682). See also K Mart Corp. v. Griffin, 189 Ga. App. 225, 226 (375 SE2d 257) and Arnold v. Eckerd Drugs of Ga., 183 Ga. App. 211, 213 (358 SE2d 632). Thus, the primary issue in the case sub judice may be stated as whether there was probable cause to detain or arrest plaintiff for shoplifting. “ ‘Probable cause existed if at the time of the arrest [or detention] the [defendant’s employees] had knowledge and reasonably trustworthy information about facts and circumstances sufficient to warrant a prudent man in believing that [plaintiff] had committed an offense.’ Borden v. State, 247 Ga. 477 (277 SE2d 9) (1981).” State v. Grant, 257 Ga. 123, 125 (1) *134(355 SE2d 646).
Decided November 30, 1989 Rehearing denied December 20, 1989 David J. Llewellyn, for appellant. Fain, Major & Wiley, Roger W. Orlando, Gene A. Major, for appellee.Of course, one who perpetrates a detention or arrest predicated on mere suspicion, which is less than probable cause, does not enjoy the protection of OCGA § 51-7-60. In my opinion this is just such a case. Although, I readily concede that the circumstances of the case sub judice were adequate to arouse the suspicions of defendant’s employees, those employees were well aware that their observation of plaintiff had not been continuous, but intermittent or sporadic. A man of reasonable prudence would recognize a number of possible innocent explanations for the absence of the container of Brunswick stew, which could have arisen during the lapses when plaintiff was not being observed. Thus, the prudent person, while suspicious, would acknowledge the gaps in his or her knowledge and refrain from reaching a speculative conclusion that plaintiff was shoplifting.
Defendant’s employees were not rendered impotent by the absence of probable cause, they were free to inquire of plaintiff concerning the absence of the Brunswick stew. Lord v. K Mart Corp., 177 Ga. App. 651, 653 (340 SE2d 225). Instead, there is evidence from which the jury in the case sub judice could conclude that plaintiff was detained, albeit briefly. “One who has done nothing to give the impression that he or she is shoplifting should not be subject to any detention at all for that offense. . . .” K Mart Corp. v. Adamson, 192 Ga. App. 886, supra. As the evidence in the case sub judice authorized the jury to conclude that plaintiff was detained by defendant’s employees without probable cause, the trial court’s entry of judgment notwithstanding the verdict should be reversed.
I am authorized to state that Judge Benham joins in this dissent.