Peters v. Menard, Inc.

589 N.W.2d 395 (Wis. 1999)

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Nature of the Case

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Facts

Wright was working as a plainclothes security guard at D’s store. He observed Brian Peters take a box containing a drill off of a shelf and place the box into his shopping cart and put the drill box into the back seat of the truck’s extended cab. He then returned the cart to the store, walked back to the truck, and sat down in the back seat. Wright asked one of D’s lumber yard employees to watch Peters. Wright saw two other people get into the truck. The truck drove toward the guard shack to exit the yard. Wright asked the guard to perform his normal check-out duties while Wright asked to speak with Peters. When Peters got out of the truck, Wright identified himself and asked about the drill. Wright requested that Peters take the box and accompany him back into the store to speak with the store manager. Peters took off running. Wright shouted at Peters to “stop,” but Peters continued running. Dan Kind also joined the chase. Both guards shouted, “stop.” The chase had gone on for about seven minutes, and the guards had given up. Peters continued to run into a flooded marsh area toward the swollen La Crosse River, while Wright and Kind walked back to the bike path and stood there talking. After a few seconds, Wright heard splashing. The guards ran to the flooded area, and Wright saw Peters enter the flooded La Crosse River. Both guards were “stunned” that Peters would jump into the river. The fast-moving current swept Peters back to the river’s middle, where he went underwater. Kind and Wright both entered the flooded river to try and save Peters. Peters was carried by. Peters bobbed up and down in the rushing river. The last time Wright saw Peters surface, he was within ten feet of Wright. Kind swam to the area where Peters last went underwater. Kind dove underwater several times in search of Peters but was unable to find him. Peters (P) filed a wrongful death action against Menard, Inc. (D), Advanced Private Investigations and their insurers, alleging negligence. Peters drowned while fleeing API security guards after allegedly shoplifting a drill from D's store. The circuit court entered summary judgment in favor of Ds, finding that they were immune from liability under subsection (3) of Wisconsin’s retail theft statute. The court also determined that 'no reasonable fact finder could conclude on these facts that Ds, in this case, are more than 50 percent or 51 percent negligent.' P appealed, and the court of appeals framed the issue as whether a merchant or its agents are immune from liability under Wis. Stat. § 943.50(3) for actions taken while attempting to detain a suspected shoplifter by pursuing him or her off of the merchant's premises.