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Michael Demarco and Isabelle Demarco, Husband and Wife v. Wal-Mart Store and Robert Williams

March 11, 2011

MICHAEL DEMARCO AND ISABELLE DEMARCO, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
v.
WAL-MART STORE AND ROBERT WILLIAMS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-609-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 8, 2011

Before Judges Carchman and Messano.

While a customer in defendant Wal-Mart's Freehold store, plaintiff Michael DeMarco*fn1 was detained by Wal-Mart's employee, defendant Robert Williams, an asset protection associate, and accused of shoplifting. The police were called, they removed plaintiff and transported him to the Freehold Township Police Station where he was processed. However, before signing a complaint against plaintiff, Williams determined that plaintiff did not shoplift and allegedly informed the police; nevertheless, he proceeded to sign a criminal complaint against plaintiff, which, ultimately, was dismissed.

Plaintiff filed a civil complaint against Wal-Mart and Williams alleging, among other things, wrongful arrest and malicious prosecution. Following discovery, defendant moved for summary judgment and among other actions, the motion judge dismissed plaintiff's claim for punitive damages. We granted leave to appeal. We now reverse, reinstate the punitive damage claim and remand for trial.

This is a more expansive description of the relevant facts before the judge on the motion, viewing the evidence most favorably to plaintiff. On January 28, 2009, plaintiff was shopping at Wal-Mart when upon reaching the exit of the store, he was stopped by Williams and asked to produce a receipt for his purchases. He did so but was brought to a back room of the store where Williams indicated that "we have you on video camera for shop lifting a [] monitor." When plaintiff asked to see the tape, Williams deferred, saying that "we'll get to it."

Within a few minutes, the Freehold police arrived, searched defendant then informed him that "Wal-Mart wants you removed from their premises and I have to arrest you." Plaintiff was handcuffed, led through and removed from the store and transported to police headquarters where he was photographed, fingerprinted and handcuffed to a bench.

After plaintiff had been removed from the store, Williams reviewed the store videotape and discovered that plaintiff had not shoplifted any merchandise. While there is a dispute as to the extent of the details of the conversation, according to Williams, he advised the police of the error and sought to have plaintiff released without any further charges; however, Williams was allegedly advised that plaintiff could not be "unarrested," and Williams would have to sign a complaint that could later be dismissed by the prosecutor. According to a Freehold police officer, when Williams came to the station, he indicated what the tape revealed but reasserted that he had probable cause for the arrest. Williams signed the complaint, which was dismissed a month later. Even with the dismissal, an account of the charges appeared in the Asbury Park Press and various of plaintiff's neighbors and acquaintances became aware of his arrest.

Plaintiff filed a multi-count complaint alleging unlawful arrest, false imprisonment, invasion of privacy, negligent infliction of emotional distress, malicious prosecution and defamation. He sought both compensatory and punitive damages.

Defendants moved for partial summary judgment as to some of the substantive claims as well as the punitive damage claim. As to the substantive claims, the judge denied relief but made a finding that Williams had probable cause. She then dismissed the punitive damage claim.

On appeal, plaintiff claims that the determination of probable cause is properly a jury issue; moreover, he asserts that the judge erred in dismissing the punitive damage claim.

Our review of a motion for summary judgment requires that we adopt the same standard as that of the motion judge, and determine whether viewing the evidence most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).

We first address the issue of probable cause. In the context of shoplifting offenses, probable cause is particularly germane as N.J.S.A. 2C:20-11(e), provides that when an apprehending merchant had 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," that merchant is immune from civil and criminal liability for such action. The immunity extends to a merchant "who causes the arrest for ...


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