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Carollo v. Supermarkets General Corp.

Decided: October 23, 1991.


On appeal from Superior Court, Law Division, Hudson County.

Pressler, Shebell and Skillman. The opinion of the court was delivered by Pressler, P.J.A.D.


Plaintiff Anthony Carollo appeals from a summary judgment dismissing his malicious prosecution complaint against defendants Supermarkets General Corp. (Pathmark) and its security officer, Vicki Gaudreau. We affirm, agreeing with the trial judge that Gaudreau, beyond any factual dispute, had sufficient probable cause to initiate the shoplifting proceedings which are the gravamen of the complaint.

It is not disputed that on the day in question plaintiff was shopping with his sister and another relative in the Eatontown Pathmark. Gaudreau, who was walking up and down the aisles observing shoppers, saw plaintiff, who was shopping separately from his family, take a pack of cigarettes from his shopping cart and place it in his pocket. She asked him to accompany her to the security office and once there, requested return of the cigarettes and proffered a release form for him to sign. Plaintiff became angry, voices were raised, and Gaudreau, who had not intended to pursue the matter further, finally telephoned the local police. Plaintiff was removed to the police station where Gaudreau, as complainant, signed a shoplifting complaint against him pursuant to N.J.S.A. 2C:20-11.

Plaintiff was tried in the municipal court. The judge acquitted him at the close of the proofs, having credited his testimony that he never intended to leave the store without paying for the cigarettes and had concealed them in order to hide them from his sister, who was at that moment approaching him with her shopping cart. He explained that his sister, with whom he resided, vehemently objected to his smoking which exacerbated his serious health problems. As a law-abiding professional person -- plaintiff is a pharmacist -- he was evidently outraged by Gaudreau's accusation and by what he apparently perceived

to be her unreasonably offensive behavior toward him and her completely unjustifiable refusal to accept his explanation. He conceded that the interview in her office was angry and vocally escalated.

Following the municipal court acquittal plaintiff commenced this false arrest, malicious prosecution, and defamation action. Defendant's successful motion for summary judgment relied primarily on the qualified immunity provided by N.J.S.A. 2C:20-11e.

Our review of the record satisfies us that there was no genuine dispute of material fact impeding the grant of summary judgment. To begin with, N.J.S.A. 2C:20-11b(2) defines shoplifting as the purposeful concealment upon one's person of "any merchandise offered for sale . . . with the intention of depriving the merchant of the . . . benefit of such merchandise or converting the same. . . ." Actually removing the merchandise from the premises is not an essential element. Compare N.J.S.A. 2C:20-11b(1). Moreover N.J.S.A. 2C:20-11d creates the presumption, held constitutional by this court in State v. Fitzmaurice, 126 N.J. Super. 361, 314 A.2d 606 (App.Div.1974),*fn1 that purposeful concealment alone bespeaks concealment with the intention to steal. It is therefore patent that Gaudreau's observation of plaintiff transferring the cigarettes from his shopping cart to his pocket while standing in the aisle provided probable cause for her belief that he was committing an act of shoplifting. She was therefore entirely justified in detaining him under the authority of N.J.S.A. 2C:20-11e, which provides that:

A law enforcement officer, or a special officer, or a merchant, who has 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, may, for the purpose of attempting to effect recovery thereof, take the

person into custody and detain him in a reasonable manner for not more than a reasonable time.

N.J.S.A. 2C:20-11e further provides that:

A merchant who causes the arrest of a person for shoplifting, as provided for in this section, shall not be criminally or civilly liable in any manner or to any extent whatsoever where the merchant has probable cause for believing ...

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