Gortarez v. Smitty's Super Valu, Inc.

680 P.2d 807 (1984)

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Nature of the Case

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Facts

P, age 16, and his cousin, Albert Hernandez, age 18, went to Smitty's store. While Hernandez was paying for the power booster, P picked up a 59-cent vaporizer used to freshen the air in cars. P asked if he could pay for it in the front of the store when he finished shopping. The clerk said yes, but decided that the request was suspicious and had a 'hunch' that P would try to leave the store without paying for the item. They wandered around and finally left the store through an unattended check-out aisle. The clerk, Sjulestad, followed the two through the store, in aisles parallel to where the young men were walking, so that there were occasions when he could not observe P below shoulder level. Sjulestad did not see them dispose of or pay for the vaporizer and concluded that they took the item without paying for it. Gibson, an off-duty police officer working security, and Miller, the assistant manager, along with two other store employees, then ran out of the store to catch P. Gibson identified himself as an officer. Gibson told Hernandez: 'I believe you have something you did not pay for.' He then seized Hernandez, put his arms on the car and began searching him. P was outraged and used strong language to protest the detention and the search -- yelling at Gibson to leave his cousin alone. P told the men that Hernandez did not have the vaporizer -- it was in the store. No one had stopped to check at the counter through which the two exited, where the vaporizer was eventually found in one of the catch-all baskets at the unattended check-out stand. P came to the defense of his cousin and pushed Gibson away. Gibson then grabbed P and put a choke hold around his neck until he stopped struggling. When they found the vaporizer in a basket at the check-out stand, the two cousins were released. The case was tried before a jury. At the close of all the evidence, the court directed a verdict for Ds on the false imprisonment and false arrest count. The assault and battery claim went to the jury, with an instruction on self-defense; the court refused P's instruction on withdrawal. The jury returned a verdict for D. This appeal resulted.