On appeal from Superior Court, Law Division, Passaic County.
Approved for Publication April 2, 1996.
Before Judges Petrella, P.g. Levy, and Eichen. The opinion of the court was delivered by Petrella, P.j.a.d.
The opinion of the court was delivered by: Petrella
The opinion of the court was delivered by
Plaintiffs Angela Liptak, her daughter, Allison Marie Liptak, and her husband, Joseph Liptak, *fn1 appeal from a jury verdict of no cause of action against them on their complaint against Rite Aid, Inc. and Alex Mello for false imprisonment. Their motion for a new trial was denied.
On their way to go food shopping, Liptak and her young daughter stopped to purchase panty hose at a local pharmacy owned and operated by Rite Aid. Liptak selected seven packages from a panty hose display, two of which exhibited coupons entitling the customer to a discount of thirty-five cents at the register. Liptak, a "consistent" coupon user, asked a store employee whether Rite Aid would honor the coupons. When the employee responded affirmatively, Liptak took a place at the end of a long line and began preparing her purchases for check-out by removing the coupons and putting them in her basket, which she had placed on the front counter.
During her search for additional coupons, Liptak noticed that some of the packages had been opened, and she became concerned that the contents differed from the description on the labels. Liptak checked that the garments matched the labels and placed the packages back in her basket along with a forty-cent coupon that she had found inside one of the packages. Recalling other items that she needed to purchase, Liptak left the checkout line and proceeded to an end aisle.
Liptak stated that her "coupon caddy," an expandable folder in which she filed her coupons, had not left her hand, and that her purse had not left her shoulder as she removed three Band-Aid coupons and two toothpaste coupons from the caddy. She compared them with the products that she had selected while in the aisle and placed the coupons in her basket. At this time, Liptak contended, Rite Aid Store Manager Mello called to her as he approached from the front of the store with a uniformed Clifton police officer. Mello told Liptak that he had witnessed her stealing coupons from panty hose packages and repeatedly asked her to come to his office despite her denials of theft. Mello allegedly grabbed Liptak's shoulder, but was rebuffed in his effort to push her toward his office. Liptak asserted that she went to the office only after Mello threatened to have the officer handcuff her. Liptak indicated on cross-examination that she had spent five to eight minutes speaking with Mello and about ten minutes in the aisle before going to his small office near the store entrance.
At Mello's office, Liptak maintained her entitlement to "save 35 cents today" as the coupons attached to the panty hose packages stated. Mello retorted that she should have purchased the items and used the coupons that she had taken from the packages with a later purchase. *fn2 He wanted "to book her" because he considered her to be as guilty as "teenage girls that come into this store and steal makeup." Mello unsuccessfully attempted to telephone his superiors. He confirmed with the officer that Rite Aid had one year to prefer charges against Liptak for theft of the three coupons. Neither Liptak's purse nor her person was searched despite her consent to permit it. Although Liptak was then allowed to leave, she took ten more minutes to purchase the items in her basket, using in the process the three coupons that Rite Aid had accused her of stealing. *fn3 She left the store at about 5:00 p.m., went home, and was upset for the rest of the day.
Liptak testified that she grew more fearful the following day upon realizing that Rite Aid could have her arrested at any time during the ensuing one-year period. She asserted that this affected her work performance and created friction with her husband because "I just kept badgering him with this incident...." She became reclusive, as well as obsessed and paranoid, refusing to go shopping without her husband. The incident allegedly caused her to experience depression, hair loss, and facial lesions within two weeks of the incident. Her doctor prescribed a tranquilizer for the depression and ointment for the lesions. Her daughter apparently rebounded from her own depression, but Liptak suffered nightmares that prompted her to seek counseling from a psychiatrist and from Clifton Mental Health Services (Clinic). There was conflicting medical testimony concerning her condition and its cause.
The Judge ruled on Rite Aid's motion at the end of plaintiffs' case that Liptak had established a prima facie case of unlawful detention. He commented, however, that she also could have been charged with shoplifting if she had left the store without purchasing the item after removing a coupon from within one of the panty hose packages because he considered coupons to be "goods within the term merchandise" under the merchant defense to the shoplifting law. The Judge rejected Rite Aid's application for a ruling that, as a matter of law, it had probable cause to stop and detain Liptak and that its detention of Liptak was reasonable. Notwithstanding Liptak's argument that Mello's reliance on "police presence," his threat "to cuff her," and his instigation of a police report evidenced malice toward her, the Judge granted Rite Aid's motion to dismiss her punitive damages claim for lack of proof of malicious or wanton conduct.
Over plaintiffs' objection following a Rule 104 hearing, the Judge admitted into evidence as a business record a Clinic "Diagnostic Intake Evaluation" form completed by Liptak's therapist, Arlene Bondy. See N.J.R.E. 803(c)(6). The form indicated that Liptak had told Bondy that her husband was an alcoholic and unsupportive of her during her incident. Bondy had written that Liptak was using the incident "to bring out [her] marital problem of alcohol." Rite Aid proffered the Clinic record to rebut Liptak's claim that the incident had caused her psychological problems. Because Bondy had since moved to Arizona, her supervisor, Pamela Noblin, authenticated the record by identifying her own and Bondy's signatures on Liptak's diagnostic intake evaluation form. Finding the records to be reliable based upon Noblin's testimony, the Judge admitted them into evidence. In rebuttal, Liptak asserted that Bondy had made the marital problem comment to her and denied referring to her husband as an alcoholic.
Mello testified for the defense that he had watched Liptak twice look into an open panty hose package, remove an item, place it in her purse, and return the package to the panty hose display. Mello stated that he had asked a police officer who was shopping in the store if he would observe Liptak, at which time they approached her in a non-threatening manner without touching her. Mello twice requested that Liptak come to his office. When he inquired what she had taken, Liptak produced three coupons. In response, Mello said they were store property until purchased.
Mello asserted that the coupons had a face redemption value to the customer and a store credit value if they went unused. Mello claimed that Liptak did not indicate her intention to use the coupons with her purchase, although he did not look to see whether they were "same-day" coupons. At the officer's request, Mello attempted unsuccessfully to contact his supervisor. Mello denied threatening Liptak with arrest or abusing her.
At the end of the case, Rite Aid moved for a directed verdict on the probable cause and reasonable duration issues. The Judge concluded from Liptak's testimony, which he assumed to be true for purposes of the motion, that Mello might have perceived that she had removed a coupon and placed it in her basket without intending to purchase the package from which it had come. Liptak's attorney questioned how Mello could have formed such a reasonable belief if the jury rejected his testimony that he had seen Liptak place the coupon in her purse rather than in her basket. The Judge nevertheless ruled that, as a matter of law, Rite Aid had probable cause to detain Liptak, and that it did so for a reasonable period of time. His decision left the jury to decide only whether Rite Aid had detained Liptak in a reasonable manner. The Judge instructed the jury on the reasonableness issue by stating:
If you find that the plaintiff was intentionally restrained or confined and that the defendant took the plaintiff into custody in an unreasonable manner then you should conclude that the detention was unlawful and you should find that there was false imprisonment. If you believe that the plaintiff, and I have found as a matter of law, willfully concealed unpurchased merchandise and that the defendant could attempt to recover that merchandise by ... taking the plaintiff into custody and that the defendant took the plaintiff into custody for this purpose and detained the plaintiff in a ... reasonable manner then you should find that the detention was lawful. ... [emphasis supplied].
The jury returned a unanimous verdict of no cause of action ...