ALFORD TAYLOR V MENARD INC
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STATE OF MICHIGAN
COURT OF APPEALS
ALFORD TAYLOR,
UNPUBLISHED
April 28, 2000
Plaintiff-Appellant,
v
MENARD INC., VANGUARD PROTECTION &
INVESTIGATIONS, INC., a/k/a VANGUARD,
INC., and JOHN MARTIN,
No. 218960
Kent Circuit Court
LC No. 98-000626-NO
Defendants-Appellees.
Before: Meter, P.J., and Fitzgerald and O’Connell, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting defendants’ motions for summary disposition
of plaintiff’s false arrest, false imprisonment, and malicious prosecution claims pursuant to MCR
2.116(C)(10). We affirm.
This action arises out of an incident where plaintiff was stopped and detained by defendant John
Martin, a security guard who suspected that plaintiff shoplifted two packages of drill bits and a
starter/driver set from one of defendant Menard, Inc.’s home improvement stores. Menard had
contracted with defendant VanGuard, Inc. to provide plainclothes security services; in turn, John Martin
was employed by VanGuard to act as a loss prevention officer at a Menard store. Plaintiff was charged
with retail fraud in the second degree, MCL 750.356d; MSA 28.588(4); however, the charge was later
dismissed on the prosecution’s own motion. Plaintiff brought suit against defendants for false
imprisonment, false arrest, and malicious prosecution. On appeal, plaintiff argues that the trial court
erred by ruling that there was probable cause to stop and detain plaintiff for shoplifting.
We review the trial court’s decision whether to grant a motion for summary disposition pursuant
to MCR 2.116(C)(10) de novo to determine whether any genuine issue of material fact exists that
would prevent entering judgment for the moving party as a matter of law. Morales v Auto-Owners Ins
Co, 458 Mich 288, 294; 582 NW2d 776 (1998). In making this determination, we view the
documentary evidence in a light favoring the nonmoving party. Radtke v Everett, 442 Mich 368, 374;
501 NW2d 155 (1993).
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Claims of false arrest and false imprisonment require the plaintiff to prove that the arrest lacked
probable cause. Burns v Olde Discount Corp, 212 Mich App 576, 581; 538 NW2d 686 (1995);
Tope v Howe, 179 Mich App 91, 105; 445 NW2d 452 (1989). Similarly, a claim of malicious
prosecution requires the plaintiff to prove that there was no probable cause for the prosecution.
Matthews v Blue Cross & Blue Shield of Michigan, 456 Mich 365, 378; 572 NW2d 603 (1998);
Burns, supra at 581; Blase v Appicelli, 195 Mich App 174, 177; 489 NW2d 129 (1992). The
parties agree that this case hinges on whether there was probable cause to suspect plaintiff of retail
fraud.
Where the facts are undisputed, the determination whether probable cause exists is a question
of law for the court to decide. Matthews, supra at 381-382; Hall v Pizza Hut of America, Inc, 153
Mich App 609, 615; 396 NW2d 809 (1986). In this case, the facts of plaintiff’s stop and detention are
essentially undisputed. Plaintiff placed the drill bits and starter/driver set in the basket of his shopping
cart and placed four bags of drywall mix in the basket on top of those items. The cashier did not scan
the items, and plaintiff left the store without paying for them. Because no factual dispute existed, it was
proper for the trial court to determine whether probable cause existed.
Probable cause that a particular person has committed a crime “is established by a reasonable
ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious
person in the belief that the accused is guilty of the offense . . . .” People v Coutu, 235 Mich App 695,
708; 599 NW2d 556 (1999), quoting People v Tower, 215 Mich App 318, 320; 544 NW2d 752
(1996). Probable cause is not capable of being precisely defined; rather, it is a commonsense concept
dealing with practical considerations of everyday life that must be viewed from the perspective of
reasonable and prudent persons, not legal technicians. Ornelas v United States, 517 US 690, 695
696; 116 S Ct 1657; 134 L Ed 2d 911 (1996).
We find no error in the trial court’s conclusion that probable cause existed to stop and detain
plaintiff. In Bruce v Meijer Supermarkets, Inc, 34 Mich App 352; 191 NW2d 132 (1971), the
plaintiff was observed placing items in her shopping cart; however, before checking out she left them on
another shelf, apparently changing her mind about the purchase. A security guard did not see the
plaintiff put the items on another shelf, but he noticed that the plaintiff did not pay for those items when
she checked out at the cash register. This Court held that the security guard was justified in stopping the
plaintiff for questioning to determine whether she had stolen the items. Id. at 355. The instant facts are
similar. In both cases, a shopper was observed placing items in a shopping cart that were not ultimately
checked out at the cash register. Moreover, in the instant case, plaintiff had in fact left the store with the
items, whereas in Bruce, the plaintiff had simply changed her mind about the purchase and left the items
in the store.
Plaintiff argues that there was no probable cause to believe that he committed retail fraud
because there was no evidence that he intended to leave the store without paying for the items.
However, the retail fraud statute, as it read at the time plaintiff was charged, provided that a person
commits retail fraud if he or she “steals property of the store that is offered for sale.” MCL
750.356d(1)(b); MSA 28.588(4)(1)(b). From the perspective of a reasonably cautious person,
viewing plaintiff place small items in his shopping cart, cover those small items with larger ones, and
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leave the store without paying for the smaller items seems a sufficient reason to believe that plaintiff was
stealing merchandise from the store.1
We therefore hold that the trial court did not err in concluding that probable cause existed to
justify the stop and detention of plaintiff. Accordingly, the trial court properly granted defendants’
motions for summary disposition.2
Affirmed.
/s/ Patrick M. Meter
/s/ E. Thomas Fitzgerald
/s/ Peter D. O’Connell
1
Plaintiff claims that the trial court, in determining whether probable cause existed, relied on facts that
occurred after he was stopped. A court must only look to the facts available at the moment of the stop.
See People v Kelly, 231 Mich App 627, 631; 588 NW2d 480 (1998). However, the trial court’s
consideration of post-stop facts was superfluous to its determination that probable cause existed.
Indeed, the trial court specifically stated that the post-stop facts were not relevant to the issue whether
probable cause existed.
2
The trial court incorrectly relied on MCL 600.2917; MSA 27A.2917 in granting summary disposition
to defendants. Section 2917 provides that, in a civil action against a merchant or a library for false
imprisonment, false arrest, assault, battery, or defamation, the plaintiff may not recover damages for
mental anguish or punitive damages if probable cause existed to believe that the plaintiff was stealing
goods or library materials, as long as the plaintiff’s detention was reasonable. This section does not
preclude the action itself; rather, it is only a limitation on damages. However, we affirm the trial court
where it reached the right result, albeit under different reasoning. Kosmyna v Botsford Community
Hospital, 238 Mich App 694, 701; ___ NW2d ___ (1999).
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