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Robinson v. Wieboldt Stores

OPINION FILED MARCH 9, 1982.

SARAH ROBINSON, PLAINTIFF-APPELLEE,

v.

WIEBOLDT STORES, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ALFRED WALSH, Judge, presiding.

PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Sarah Robinson brought this action against Wieboldt Stores, Inc., to recover damages for pain and suffering arising from a false imprisonment which occurred on November 21, 1977. The jury returned a verdict in favor of Robinson, awarding $5,000 in compensatory damages and $10,000 in punitive damages. Wieboldt Stores appeals, contending: (1) that judgment notwithstanding the verdict should have been entered in its favor because there was no evidence that a false imprisonment occurred; (2) that the judgment should be reversed and a new trial ordered because the verdict was against the manifest weight of the evidence; (3) that it was reversible error for the trial court to allow plaintiff to testify about pre-existing ailments and that the incident caused her to have an "attack"; and (4) that it was reversible error for plaintiff's counsel to repeatedly ask the jurors to put themselves in the position of plaintiff and to inject his opinions into the closing argument.

On November 21, 1977, at about 6:30 p.m., the 66-year-old plaintiff was shopping in the Evanston Wieboldt Store. She purchased a scarf on the first floor of the store with her credit card which she had for 48 years. Plaintiff chose to wear the scarf and removed the price tag and handed it to the sales clerk. The sales clerk did not object when plaintiff put the scarf around her neck. The clerk handed plaintiff a copy of the sales receipt which plaintiff put in her pocket. Plaintiff then took the escalator to the third floor of the store.

As plaintiff stepped off the escalator a security guard grabbed her by the left arm near her shoulder. The guard gave his name and showed his badge. He asked where she got the scarf and requested her to accompany him to a certain room. She told him that she purchased the scarf on the first floor and had the receipt in her pocket. During the entire confrontation the guard was holding tightly onto plaintiff's upper arm. Plaintiff, who was black, described the guard as white, tall, weighing about 200 pounds, having dark hair and wearing a dark brown suit. The guard grabbed the receipt from plaintiff's hand and continued to hold her upper arm. Plaintiff struggled to get the receipt back from the guard. Plaintiff testified she felt very sick, as if her head was blown off and chest was sinking in. She said she was frightened and that it seemed as if the incident lasted forever.

The guard took plaintiff down to the scarf department on the first floor. Plaintiff removed the scarf from her neck and noticed a small tag on the corner. This tag gave instructions for the care of the scarf. This was apparently what the security guard had seen before grabbing plaintiff. The sales clerk told the guard that plaintiff had purchased the scarf a short time earlier. The guard told the sales clerk that she had caused plaintiff a lot of trouble and had embarrassed her. He then walked away without apologizing to plaintiff.

Plaintiff testified that she felt very sick after the incident. She obtained some change to call a cab but was unable to complete the call because of the way she felt. She went outside the store and vomited. A clerk from the store who knew plaintiff saw her and asked what had happened. Plaintiff explained, and the clerk told her to see the manager the next day. Plaintiff said she couldn't because she was too sick. A cab was called, and plaintiff left for home. She sent a letter to the manager of Wieboldt's but received no response. Plaintiff stayed in bed for a week. She did not have to do so but said she simply did not feel well. She testified that she had high blood pressure prior to the incident. She also stated that she did not have angina prior to the incident but did so afterwards.

Defendant's chief of security, Curtis Chancelor, testified that he was working in the store on November 21, 1977, at the employee's entrance checking employee's packages. He said he had inspected the time cards and that there were no other security personnel working that evening. He testified that it was occasionally necessary to take further steps after being shown a sales receipt because of dishonest employees. He also stated that if a sales tag was on an item of merchandise he would stop the customer in a courteous way. On cross-examination, Chancelor testified that a police officer hired as a part-time security guard fit the description of the guard given by plaintiff. Defendant never produced the guard. The jury returned a verdict in favor of plaintiff in the amount of $5000 in compensatory damages and $10,000 in punitive damages.

Defendant's first contention on appeal is that judgment notwithstanding the verdict should have been entered in its favor because there is no evidence that a false imprisonment occurred. False imprisonment consists of the unlawful restraint, against a person's will, of that individual's personal liberty or freedom of locomotion. (Karow v. Student Inns, Inc. (1976), 43 Ill. App.3d 878, 881, 357 N.E.2d 682.) Defendant, however, is afforded some protection by sections 16A-5 and 16A-6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 16A-5, 16A-6), which provide:

"§ 16A-5. Detention. Any merchant who has reasonable grounds to believe that a person has committed retail theft may detain such person, on or off the premises of a retail mercantile establishment, in a reasonable manner and for a reasonable length of time for all or any of the following purposes:

(a) To request identification;

(b) To verify such identification;

(c) To make reasonable inquiry as to whether such person has in his possession unpurchased merchandise and, to make reasonable investigation of the ownership of such merchandise;

(d) To inform a peace officer of the detention of the person and surrender that person to the custody of a peace officer;

(e) In the case of a minor, to inform a peace officer, the parents, guardian or other private person interested in the welfare of that minor of this detention and to ...


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