MICHAEL DEMARCO v. WAL-MART STORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0783-10T2

MICHAEL DEMARCO and ISABELLE

DEMARCO, husband and wife,

Plaintiffs-Appellants,

v.

WAL-MART STORE And ROBERT

WILLIAMS,

Defendants-Respondents.

________________________________________________________________

March 11, 2011

Argued February 8, 2011 - Decided

Before Judges Carchman and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-609-09.

Jacqueline DeCarlo argued the cause for appellants (Hobbie, Corrigan & Bertucio, P.C., attorneys; Ms. DeCarlo, on the brief).

Robert K. Paglione argued the cause for respondents (McDonnell & Associates, P.C., attorneys; Mr. Paglione, on the brief).

PER CURIAM

While a customer in defendant Wal-Mart's Freehold store, plaintiff Michael DeMarco1 was detained by Wal-Mart's employee, defendant Robert Williams, an asset protection associate, and accused of shoplifting. The police were called, they removed plaintiff and transported him to the Freehold Township Police Station where he was processed. However, before signing a complaint against plaintiff, Williams determined that plaintiff did not shoplift and allegedly informed the police; nevertheless, he proceeded to sign a criminal complaint against plaintiff, which, ultimately, was dismissed.

Plaintiff filed a civil complaint against Wal-Mart and Williams alleging, among other things, wrongful arrest and malicious prosecution. Following discovery, defendant moved for summary judgment and among other actions, the motion judge dismissed plaintiff's claim for punitive damages. We granted leave to appeal. We now reverse, reinstate the punitive damage claim and remand for trial.

This is a more expansive description of the relevant facts before the judge on the motion, viewing the evidence most favorably to plaintiff. On January 28, 2009, plaintiff was shopping at Wal-Mart when upon reaching the exit of the store, he was stopped by Williams and asked to produce a receipt for his purchases. He did so but was brought to a back room of the store where Williams indicated that "we have you on video camera for shop lifting a [] monitor." When plaintiff asked to see the tape, Williams deferred, saying that "we'll get to it."

Within a few minutes, the Freehold police arrived, searched defendant then informed him that "Wal-Mart wants you removed from their premises and I have to arrest you." Plaintiff was handcuffed, led through and removed from the store and transported to police headquarters where he was photographed, fingerprinted and handcuffed to a bench.

After plaintiff had been removed from the store, Williams reviewed the store videotape and discovered that plaintiff had not shoplifted any merchandise. While there is a dispute as to the extent of the details of the conversation, according to Williams, he advised the police of the error and sought to have plaintiff released without any further charges; however, Williams was allegedly advised that plaintiff could not be "unarrested," and Williams would have to sign a complaint that could later be dismissed by the prosecutor. According to a Freehold police officer, when Williams came to the station, he indicated what the tape revealed but reasserted that he had probable cause for the arrest. Williams signed the complaint, which was dismissed a month later. Even with the dismissal, an account of the charges appeared in the Asbury Park Press and various of plaintiff's neighbors and acquaintances became aware of his arrest.

Plaintiff filed a multi-count complaint alleging unlawful arrest, false imprisonment, invasion of privacy, negligent infliction of emotional distress, malicious prosecution and defamation. He sought both compensatory and punitive damages.

Defendants moved for partial summary judgment as to some of the substantive claims as well as the punitive damage claim. As to the substantive claims, the judge denied relief but made a finding that Williams had probable cause. She then dismissed the punitive damage claim.

On appeal, plaintiff claims that the determination of probable cause is properly a jury issue; moreover, he asserts that the judge erred in dismissing the punitive damage claim.

Our review of a motion for summary judgment requires that we adopt the same standard as that of the motion judge, and determine whether viewing the evidence most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).

We first address the issue of probable cause. In the context of shoplifting offenses, probable cause is particularly germane as N.J.S.A. 2C:20-11(e), provides that when an apprehending merchant had probable cause "for believing that a person has willfully concealed unpurchased merchandise and that he can recover the merchandise by taking the person into custody," that merchant is immune from civil and criminal liability for such action. The immunity extends to a merchant "who causes the arrest for shoplifting" where the merchant "has probable cause for believing that the person arrested committed the offense of shoplifting." Ibid.

As we noted in Liptak v. Rite Aid, Inc., 289 N.J. Super. 199, 214 (App. Div. 1996) (alteration in original) (citations and internal quotations omitted), "[t]he issue of probable cause has been described as 'something less than proof needed to convict and something more than a raw, unsupported suspicion; in essence, [i]t is a suspicion (or belief) of guilt that is well grounded." The issue of whether there is sufficient probable cause to invoke the immunity provisions of N.J.S.A. 2C:20-11(e) is a jury question and not one to be decided as a matter of law. Liptak, supra, 289 N.J. Super. at 215.

When considering the issue of probable cause, the trier of fact must consider the issue under an objective standard - that is, what a reasonable and prudent person would perceive under the circumstances. LoBiondo v. Schwartz, 199 N.J. 62, 93 (2009). While ordinarily the same probable cause would suffice as a defense to both false arrest and malicious prosecutions, scenarios arise, as here, where the issue of probable cause must be considered separately as to each cause of action.

In fact, in Carollo v. Supermarkets General Corp., 251 N.J. Super. 264 (App. Div. 1991), certif. denied, 127 N.J. 559 (1992), we distinguished between the discrete application of probable cause that must be considered when there is first an arrest, followed by the initiation of criminal proceedings. We said:

It appears, therefore, that ordinarily the same set of facts which constitute probable cause for a merchant to detain will also constitute probable cause for his initiating of criminal proceedings. Consequently as a practical matter, the probable cause which confers immunity from false arrest will ordinarily also defeat malicious prosecution claims. But this is not necessarily so. It is clearly possible that following an arrest based on sufficient probable cause, circumstances might ensue or facts might become known to the merchant which would so undermine the reasonableness of an initial belief in the patron's guilt as to make the subsequent signing of the complaint unjustified.

[Id. at 270.]

Under the facts presented to the motion judge, we are of the view that the judge's conclusion that there was sufficient probable cause to support both the arrest and prosecution was erroneous. According to the facts adduced during discovery, Williams did not observe plaintiff secrete any goods or do anything to suggest shoplifting. For reasons that are not fully articulated in the record, he suspected that plaintiff may have removed goods without paying but that, standing alone, does not suffice to meet the burden of establishing probable cause. Although the judge made a finding of probable cause, even while denying defendant's motion for summary judgment, we fail to see how the proofs conclusively establish that fact sufficient to remove the issue from a jury's consideration.

While we normally do not correct "reasons" where, as here, the motion for partial summary judgment and to dismiss claims for false arrest, false imprisonment, malicious prosecution, defamation, false light and invasion of privacy were denied. Since we are reversing and remanding for trial on all issues, we advise both the parties and the trial judge that whether Williams detained plaintiff upon sufficient probable cause is an outstanding issue still to be determined.

There is a more critical reason for addressing that finding. In concluding that there was no basis for punitive damages, the judge said:

Now, actual malice is defined as an intentional wrongdoing in the sense of an evil minded act. Wanton and willful disregard means a deliberate act or omission with knowledge of a high degree of probability of harm to another, and reckless indifference to the consequences of such act or omission.

The defendant claims here that there he tried to dismiss the charges. He couldn't. And he feels that that was not an evil minded act. I agree. I find that the defendant, that Williams did have probable cause when he started this whole ball rolling. He felt that the plaintiff here had not paid for some items, that he was under surveillance and it appeared to him that some - - that he was stealing some items.

So I find that there was no willful and wanton act here so as to afford punitive damages. So the only parts of the complaint that I will dismiss are those dealing with punitive - - that seek punitive damages. The others stand. I think the false imprisonment, and all the other things stand here.

The judge appears to have somehow linked the issue of probable cause in the first instance to the issue of punitive damages. To the extent we interpret her remarks correctly, this was error.

In considering punitive damages, the inquiry must be whether an act was committed with actual malice or whether it was "accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions." N.J.S.A. 2A:15-5.12(a). "Wanton and willful disregard" is defined as "a deliberate act or omission with knowledge of a high degree of probability of harm to another and reckless indifference to the consequences of such act or omission." N.J.S.A. 2A:15-5.10.

Nothing in the record suggests that defendants acted with actual malice; however, we are satisfied that there is a jury question as to whether the execution of a criminal complaint after the actor is satisfied and knows that a party did not commit such act is "wanton and willful" conduct that could amount to "reckless indifference" to the consequences of such action. A jury may assess the facts presented here and conclude that the action of signing the complaint after defendants determined that no criminal offense had been committed amounts to the bad motive and reckless indifference necessary to support an award of punitive damages. See Horn v. Village Supermarkets, Inc., 260 N.J. Super. 165, 176-77 (App. Div. 1992).

There are significant factual disputes as to what transpired at the police station between Williams and the officers. Defendant's subsequent argument that this was simply a mistake without malice or evil intent may be accurate, but it must be tested within the crucible of a trial rather than a motion for summary judgment.

While the motion judge accepted Williams' version of the events, that was not her role. The factual disputes in this case will be determined by a jury following a trial. Accordingly, we reverse the dismissal of the punitive damage claim and remand for trial on all issues.

1 Plaintiff Isabelle DeMarco filed a per quod claim. For the purposes of this appeal, all references to plaintiff, unless otherwise noted, will refer to plaintiff Michael DeMarco.