On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Botter, Pressler and O'Brien. The opinion of the court was delivered by Botter, P.J.A.D.
At trial, at the close of plaintiff's proofs, the trial judge dismissed plaintiff's action on defendants' motion. R. 4:37-2(b). Plaintiff's complaint asserted claims for defamation, invasion of privacy, and assault. The case was tried as if it included a count for false imprisonment, and that claim was also dismissed. This appeal followed, and we now reverse the dismissal of the defamation count but affirm the dismissal of the other claims.
Plaintiff, a long time resident of Montclair, testified that she regularly shopped at an Acme supermarket in Clifton. The store was operated by defendant Acme Markets, Inc. On September 3, 1981 plaintiff went there to buy two gallon bottles of spring water on sale. She was accompanied by her friend Ivy Cruickshank. Plaintiff asked Ivy to get the water while she waited in the car and she gave Ivy $1.10 for the purchase. Ivy came back and said she did not see any bottles of water in the store. Plaintiff and Ivy then returned to the store to look for the water. When they arrived at the location where the bottled water was kept they found none there. They left the store, without making any purchase, by walking through the aisle of a closed check-out booth. Plaintiff was carrying a pocketbook at the time.
Testimony of defendant John Heavey given in depositions was introduced by plaintiff. Heavey was the grocery manager and was in charge of the store on September 3, 1981. According
to Heavey's testimony, a cashier reported to him that a woman had pushed aside a candy rack, passed a register, and walked out of the store. Heavey asked if the cashier had seen the woman take anything and he replied that he did not, but that she was carrying a large bag. Heavey said there was nothing they could do, but he asked to be notified if the woman returned. Shortly thereafter the cashier told Heavey that the woman returned and that another woman was with her on the far side of the store in aisle #1. Heavey walked toward the aisle and saw plaintiff and Ivy coming out of the aisle. He observed them walk "through the check-outs and outside the store." Heavey followed them. Ivy entered a car and plaintiff was getting into the driver's seat when Heavey confronted her.
Ivy and plaintiff testified that there were people in the parking area when Heavey approached plaintiff. According to Ivy, Heavey said to plaintiff, "Open your pocketbook, open your pocketbook, I saw you take it." Plaintiff testified that Heavey said, "I saw you; I saw you take it off the shelf." She said he was screaming at her and she heard someone in the crowd say, "She stole something from the store." Although she first said Heavey "snatched" her pocketbook from her, when confronted with her prior testimony in depositions when she had testified that she gave her pocketbook to him, she said on cross-examination, "I gave it to him but he snatched it." She testified further, "I handed the bag to him and he snatched it out of my hands. So I gave it to him. I didn't wrestle for it." She also testified that Heavey never touched her.
In his deposition Heavey testified that he did not see the two women take anything from the store, nor did the cashier report that they had done so. He testified that he approached plaintiff and asked her if he "might look inside her pocketbook." He testified that he thought something may have been taken and he felt that he could ask plaintiff if she would open her pocketbook so that he could look into it. He denied accusing or indicating to plaintiff that he thought that she had taken anything, but he was looking for merchandise that may have
been taken from the store. Heavey found no merchandise in the purse and returned it to plaintiff. He made a note of the license plate on plaintiff's car and then returned to the store. According to plaintiff, Heavey was wearing an Acme uniform at the time.
Plaintiff then went back into the store to speak with Heavey. She said that she asked him to show her what she had taken from the store and he said in a nasty way, "I'm sorry." She said she asked for his name and the manager's name but he refused to give her that information.
Plaintiff claimed that she was slandered by Heavey in that he had, in effect, called her a thief in the presence of other people. She said she felt humiliated and hurt. However, no special damages were proved. The trial judge ruled that an imputation of shoplifting does not constitute slander per se because shoplifting is a disorderly persons offense and not an indictable crime. N.J.S.A. 2C:20-11(c); see N.J.S.A. 2C:1-4(a) and (b). Therefore, he ruled that without special damages plaintiff had not proved an actionable claim for defamation. Reliance was placed on Sokolay v. Edlin, 65 N.J. Super. 112, 121, (App.Div.1961), in which the court said: "One who falsely, and without privilege to do so, publishes a slander which imputes to ...