497 So.2d 1259, 11 Fla. L. Weekly 2160, 11 Fla. L. Weekly 2577

District Court of Appeal of Florida ,

Third District.

Dany HERNANDEZ and Miguel Hernandez, Appellants,
v.
K-MART CORPORATION, Appellee.

No. 86-408.

Oct. 14, 1986.
On Motion for Rehearing Dec. 9, 1986.

Discount store customer who was accused of shoplifting and strip searched brought action for false imprisonment and assault and battery against store's owners. The Circuit Court, Dade County , James C. Henderson, J., entered judgment on jury verdict for store, and customer appealed. The District Court of Appeal, Nesbitt, J., held that: (1) store had failed to present evidence establishing affirmative defenses of probable cause and consent, and those defenses should not have been submitted to jury, and (2) store could not be held vicariously liable in punitive damages on retrial.

Reversed and remanded.

West Headnotes

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Discount store named as defendant in suit for false imprisonment and assault and battery arising from strip search of customer had burden of proving affirmative defenses of probable cause to believe that customer had shoplifted and customer's consent to search.

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Standard of proving probable cause for merchant to detain suspected shoplifter is less than probable cause required to support later prosecution.

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Discount store named as defendant in suit for false imprisonment and assault and battery arising from strip search of customer had failed as matter of law to present evidence of affirmative defenses that it had probable cause to believe that customer was shoplifter and that customer had consented to strip search, where it denied occurrence of incident and asserted that customer's son had consented to that search.

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Employer that had been found to have acted without malice, moral turpitude, wantonness, willfulness, or reckless indifference to rights of suspected shoplifter could not be held vicariously liable in punitive damages on retrial.

*1259 Rossano, Torrent & Leyte-Vidal and Robert Rossano , Miami , for appellants.

Peters, Pickle, Flynn & Niemoeller and Donna C. Hurtak, Miami , for appellee.

Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.

NESBITT, Judge.

There being an absence of any evidence to support K-Mart's affirmative defenses of probable cause and consent, we find that the trial court erred in submitting these issues to the jury. Therefore, we reverse the judgment below.

A security guard, working for K-Mart, approached Dany Hernandez in the parking lot of the K-Mart store. At the guard's request, she accompanied him to a room in the back of the store where she was accused of shoplifting. Though she denied the accusation, she was interrogated, threatened with police action, and strip-searched. When the K-Mart employees' efforts to inculpate her proved fruitless, they released her with their apologies. Dany filed a lawsuit alleging false imprisonment, assault and battery. She also alleged that K-Mart had negligently hired, trained, supervised, and retained the employees*1260 involved in the incident.FN1 Miguel, Dany's husband, filed a claim for loss of consortium. In its answer, K-Mart denied that the incident occurred, and, in the alternative, set forth the affirmative defenses of probable cause and consent.

FN1. We note that the Hernandezes failed to present any evidence as to K-Mart's alleged negligence in hiring, training, supervising, and retaining its employees. On appeal, they do not seek judgment on this issue and we therefore do not address it.

At trial, the only evidence of the incident was presented by the Hernandezes. Dany testified that she went to K-Mart with her thirteen-year-old daughter, Marlene, to price washing machines. Marlene brought a shirt over to Dany and requested that Dany purchase it. After Dany declined to do so, they both left the store. Dany further testified that after she was accused, the guard told her he was calling the police, but that the police never arrived. She was told to strip so that she could be searched, and she complied. Dany's son, Miguel, Jr., testified that he was telephoned by either Dany or Marlene and went to the store, arriving while his mother was being interrogated.

It was upon this evidence, and over the Hernandezes' objections, that the court instructed the jury as to K-Mart's affirmative defenses, and submitted the issues to the jury. The jury returned a verdict finding that, although K-Mart was the legal cause of any injuries which might have been suffered, it had probable cause to believe that Dany had shoplifted. The jury mistakenly left the question of consent unanswered.

[1] K-Mart had the burden of proving probable cause, see Lee v. Geiger, 419 So.2d 717 (Fla. 1st DCA 1982), review denied, 429 So.2d 5 (Fla.1983), and consent, see 6 Am.Jur.2d Assault and Battery § 206 (1963); cf. Johns v. Ford Motor Credit Co., 226 So.2d 403 (Fla. 1st DCA 1969) (defendant has burden of proving its affirmative defense, and plaintiff may counter with other evidence).

[2] [3] Though the standard of proving probable cause for a merchant to detain a suspected shoplifter is less than the probable cause required to support a later prosecution, Gatto v. Publix Supermarket, Inc., 387 So.2d 377 (Fla. 3d DCA 1980), K-Mart failed to come forward with any evidence showing probable cause and, in fact, denied the occurrence of the incident. This, as a matter of law, was insufficient to carry its burden of presenting evidence of its affirmative defense. K-Mart contends that Miguel, Jr. gave consent to the search of his mother when he said, “If you don't believe her, why don't you search her?”. Not only does this quotation not appear in the record, but even if it did, Miguel Jr. was not capable of giving consent for Dany where she had the capacity to give her own consent and Miguel Jr. was unauthorized to do so. See Restatement (Second) of Torts § 892 (1979).

K-Mart failed to present any evidence establishing its affirmative defenses; therefore, the trial court erred in submitting the issues of probable cause and consent to the jury over objection of the Hernandezes' counsel. Cf. Valdes v. Faby Enterprises, 483 So.2d 65 (Fla. 3d DCA 1986) (error for the court to submit instruction on comparative negligence to jury where there is no evidence supporting such theory); Borenstein v. Raskin, 401 So.2d 884 (Fla. 3d DCA 1981) (same).

Accordingly, we reverse the judgment under review and remand to the trial court with directions to enter a directed verdict in favor of the Hernandezes on the issues of probable cause and consent; and to enter a judgment in accordance with the jury's verdict finding K-Mart's false imprisonment and assault and battery to be the proximate cause of the injuries allegedly suffered by the Hernandezes. Finally, upon remand, the trial court is directed to grant a new trial as to compensatory and punitive damages. Having so ruled, we find that it is unnecessary to address the remainder of the contentions advanced by the plaintiff.

It is so ordered.

*1261 On Motion for Rehearing

We agree with K-Mart's contention on rehearing that “in order for an employer to be held vicariously liable in punitive damages for the tort of an employee under the doctrine of respondeat superior, there must be proof of some fault on the part of the principal.” Life Insurance Company of North America v. Del Aguila, 417 So.2d 651, 653 (Fla.1982). As we recognized in the panel opinion, Hernandez failed to present any evidence of fault on the part of K-Mart. Consequently, the jury's verdict finding that K-Mart was not liable for punitive damages is supported by the evidence.

[4] Accordingly, we amend the final paragraph of page 3 to read:

Accordingly, we reverse the judgment under review and remand to the trial court with directions to enter a directed verdict in favor of the Hernandezes on the issues of probable cause and consent; and to enter a judgment in accordance with the jury's verdict finding 1) K-Mart's false imprisonment and assault and battery to be the proximate cause of the injuries allegedly suffered by the Hernandezes, and 2) that K-Mart acted without malice, moral turpitude, wantonness, wilfulness or reckless indifference to the rights of Dany Hernandez. Finally, upon remand, the trial court is directed to grant a new trial as to compensatory damages. Having so ruled, we find it is unnecessary to address the remainder of the contentions advanced by the plaintiff.

It is so ordered.

In all other respects K-Mart's motion for rehearing and clarification is denied.

Fla.App. 3 Dist.,1986.
Hernandez v. K-Mart Corp.
497 So.2d 1259, 11 Fla. L. Weekly 2160, 11 Fla. L. Weekly 2577

END OF DOCUMENT