dissenting. I respectfully dissent from today’s decision holding that the trial court erred in granting summary judgment to Kroger on the claim of malicious prosecution. In my view, there is no genuine issue of material fact as to whether the appellees had probable cause to prosecute Ms. Miller, and I would affirm this case on all points.
The test for determining probable cause is an objective one based not upon the accused’s actual guilt, but upon the existence of facts or credible information that would induce a person of ordinary caution to believe the accused to be guilty. Kroger Co. v. Standard, 283 Ark. 44, 670 S.W.2d 803 (1984). Even if the merchandise taken from the store in this case was not completely concealed, it is undisputed that Ms. Miller left the store without paying for it. In Kroger v. Standard, supra, the supreme court stated:
Today, modern supermarkets are tens of thousands of square feet in size and display nearly all of their goods on open shelves within easy reach of the customer. The customer picks up the goods and can continue shopping over the entire store area before taking his selections to a check-out stand. This great size and easy accessibility make it very difficult for a merchant to know when someone is shoplifting from the shelves.
283 Ark. at 51-52, 670 S.W.2d at 807. While it was difficult, if not impossible, for Ms. Baker to know Ms. Miller’s subjective intent, the circumstances of this case would have induced a person of ordinary caution to believe Ms. Miller was shoplifting.
The majority relies on Wal-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 681 S.W.2d 359 (1985), in reversing on this point. However, I believe that case is distinguishable.
In Wal-Mart Stores, Inc. v. Yarbrough, supra, there was evidence that, after being confronted, the accused shoplifter explained that she simply forgot she had the item she removed from the store, but that the store employee would under no circumstances accept any explanation inconsistent with theft. In the instant case, Ms. Baker testified that when she confronted Ms. Miller, Ms. Miller said she was sorry and that she was low on money. Ms. Miller testified that she told Ms. Baker she was sorry and would pay for the items. While she further testified that she did not intend to steal the items, there was no evidence that she communicated this explanation to Ms. Baker.1 Moreover, the decision to prosecute was not automatic, as in the previously cited case. Ms. Baker testified that her job is to make 100% sure that a person has taken merchandise, and that if she has any doubt she is not supposed to stop the person. She further stated that if she apprehends a shoplifter, and the suspect is guilty, she always calls the police. This indicates that Ms. Baker attempts to determine whether a detained person is guilty of shoplifting. Ms. Baker did not testify that she made no effort to believe any explanation offered by Ms. Miller, or that nothing could have changed her decision to prosecute after the stop was made.
While the majority compares the arresting officer’s favorable testimony in this case to the prosecuting attorney’s recommendation to dismiss the charges in Wal-Mart Stores Inc. v. Yarbrough, supra, I do not think these are comparable circumstances. While the arresting officer thought that the items taken from the store could not have fit in Ms. Miller’s purse, there was no evidence that the officer, the prosecutor, or anyone else made any recommendation to drop the charges.
I cannot agree that there was a genuine issue of material fact on the malicious-prosecution claim, and I would affirm the trial court’s ruling that Kroger was entitled to judgment as a matter of law. Therefore, I dissent.
Stroud, C.J., Pittman and Crabtree, JJ., join in this opinion.
The majority notes that Mr. Crabb testified that he heard Ms. Miller state that “she had done nothing wrong.” However, he also testified that Ms. Miller stated she was ashamed, had never done anything like that before, and would never come back to the store. He stated that Ms. Miller was contradicting herself in this respect. Taken in context, Mr. Crabb’s testimony does not indicate that Ms. Miller communicated to Ms. Baker an innocent explanation for leaving the store without paying for the items.