An extensive number of lawsuits against owners relate to the detention and arrest on suspicion of shoplifting or other such misconduct. If there is no probable cause of the person committing a crime, actions may be filed for false imprisonment as the person was unlawfully detained, no matter how long the detention lasted as they were deprived of their personal liberty. The definition of probable cause is that there is existence of facts and circumstances reasonably showing that the persons charged were guilty of the crime for which they were arrested.
A detention need not consist of physical restraint, but may arise out of words, acts, gestures, which specify a reasonable apprehension that force will be used if the claimant does not submit. If the claimant agrees of his own free will to surrender his freedom of motion, as by remaining in a room or accompanying the owner or his employees voluntarily, to clear himself of suspicion or accommodate the desires of another, rather than yielding to the constraint of a threat, then there is no imprisonment. When a claimant consents to a search of his person, there has been no imprisonment as a matter of law, and the claimant cannot maintain an action against the owner. In addition, there is no imprisonment when an employee merely asks a customer a question, and the customer's response does not require further action on the part of the employee.
A claimant can bring an action for false arrest if the owner acts with malice and without probable cause in arresting him. An arrest can be made with a warrant or without a warrant. An arrest is accomplished whenever the personal freedom of another to come and go as he pleases is restrained, no matter how slight such restraint may be. Malice consists of personal spite or general disregard of the right consideration of mankind, directed by chance against the individual injured. Malice is presumed if the owner has a total lack of probable cause to make an arrest.
As long as an owner has probable cause to suspect someone of a crime on his or her premises, they may not be held liable for an ensuing arrest. Even if the accusations are inaccurate, as long as the owner maintains a reasonable belief that a crime has been committed, they may not be held liable for a detention that turns out to be unsubstantiated. There are several reasons that owners (or their employees) have probable cause to detain someone. These include the appearance of making unauthorized credit card purchases, criminal trespass (refusing to leave after repeatedly asked to do so), and possible merchandise theft (suspicious activity leading to probable cause). The owner must also investigate sufficiently before detaining a possible criminal by checking on the reliability of both the source of the accusation and the reputation of the detainee. The owner must also review the detainee's explanation for the incident, as well as the reason for prompt action by the employee. If a police officer is involved in the suspicion and subsequent detention of the accused, the owner is not liable for the arrest. Only if the police officer is relying on the statements of the owner's employee, and they turn out to be false, may the owner be held accountable for any damages.
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If an owner of a property prosecutes you for a crime without probable cause, you may have grounds to have the owner prosecuted for malicious prosecution. Criminal proceedings are initiated against the claimant first, as required by the tort of malicious prosecution. The judge will determine if there was probable cause at a preliminary hearing on this criminal charge. The burden of proof is then the claimant that probable cause did not exist that led to his arrest, and there was malicious motivation for the incident. If the owner simply states facts to an official who then makes his own decision to arrest or prosecute the claimant, then the owner cannot be held liable for the claimant's prosecution. There is potential liability if the owner urges a law enforcement official to begin criminal proceedings or misleads the official with false information, whether this is done directly or indirectly by the owner. If the owner fails to investigate personally to determine the truth, he may also be held liable in the case of improper prosecution. The claimant must prove that the prosecution has been terminated in his or her favor. A compromise with the prosecutor negates any possibility for a malicious prosecution suit.
An owner may be liable when an employee only if it appears the owner directed the employee to relate specific words creating a false account regarding a customer. Even if the employee is acting within the duties of his position and to the benefit of his or her employer, the owner may not be liable and any case may be resolved by summary judgment due to lack of authorization. Summary judgment only applies in slander cases and allows the judge to decide for either the claimant or defendant.
Depending on the account, if it is verbal or print, the customer could possibly bring an action for defamation in compensation for the injury. By definition, slander is oral defamation, libel is written defamation. Libel is a false statement in any type of print, including writing, pictures or signs that injure the reputation of the claimant, exposing the possibility of public ridicule or contempt. There are several conditions to prove slander. It includes verbal defamation of a person's character. These include but are not limited to:
- Falsely accusing them a crime punishable by law
- Having a contagious disorder
- An act that may exclude him or her from general society
- False behavior regarding their trade, office, or profession in a calculated way to injure professionally
- Causing special damage by uttering any critical words
Causing special damage must be specifically proven, while the other accusations are assumed. To prove a case of libel or slander, the accusation must be given to someone other than the person accused. If the statement, oral or written, is actual truth, neither liable nor slander may be shown.
Claims for libel or slander may not be based on certain communications that are deemed privileged. These include, but are not limited to:
- Fairly made comments of an attorney regarding circumstances and conduct of parties involved in a case which he or she is involved
- Statements made in the performance of a public duty in good faith
- Honest and fair reports of the proceedings of judicial or legislative bodies
- Statements made in the performance of a legal or moral private duty in good faith
- Honest and fair reports of court proceedings
- Statements made on the part of the speaker to protect his or her interest in a matter in which it is concerned with good faith
- Reports of information from any arresting officer or police authorities held to be truthful
- Statements made as part of an act in furtherance of the right of free speech in good faith
- Reference to the acts of public men or public women in their public capacity. The right to claim the privilege to comment is lost if it was used only to vent private malice.
Emotional Distress-Negligent or Intentional
Emotional distress may be a cause for a claim in a civil suit. If the offender merely curses, that is not sufficient for a claim. Only if it can be proven that owner's employee had conduct that was extreme and outrageous, causing intentional or reckless infliction of severe emotional distress and that there is a casual relationship between the conduct and the emotional distress may charges be filed by a claimant.
The employee's actions must be intentional or reckless, and not just merely negligent. The conduct must also go beyond all reasonable bounds of decency, to be regarded as atrocious and utterly intolerable to the in degree of being extreme. An example of an exception is where a jury issue exists, where the claim is subject to evidentiary proof, such as a customer's claim of emotional distress due to a pharmacist, believing the customer was falsely attempting to obtain prescription drugs, notified authorities of the customer's supposed fraud.
Alleged mental or emotional injuries, resulting from the actions of an owner or his employees, are often the subject of claims. Claimants may not recover for negligent infliction of emotional distress unless he suffers a physical injury resulting from an actual impact, regardless of the degree of mental anguish. For example, if an armed man breaks into an apartment, robbing without touching, there is no recovery against the apartment complex. Failing to maintain adequate security does not apply when contact with the tenant does not occur.