1Key Concept 9 Understand the differences between compe.docx

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Key Concept 9: Understand the differences between
compensatory and punitive damages1
A. Torts
1. Compensatory and Punitive Damages
Tort law involves civil liability between private parties. A
plaintiff who wins a
tort suit usually recovers the actual damages or compensatory
damages that she suffered
because of the tort. Depending on the facts of the case, these
damages may be for direct
and immediate harms, such as physical injuries, medical
expenses, and lost pay and
benefits, or for harms as intangible as loss of privacy, injury to
reputation, and emotional
distress.
In cases where the defendant’s behavior is particularly bad,
injured victims may
also be able to recover punitive damages. Punitive damages are
not intended to
compensate tort victims for their losses. Instead, they are
designed to punish flagrant
wrongdoers and to deter them and others from engaging in

similar conduct in the future.
Theoretically, therefore, punitive damages are reserved for the
worst kinds of
wrongdoing. Punitive damages have always been controversial,
but they have grown
more so in recent years due to the size of some punitive damage
awards and the
perception that juries are awarding them in situations where
they are not justified.
2. Negligence Defenses
The common law traditionally recognized two defenses to
negligence:
contributory negligence and assumption of risk. In many states,
however, one or both of
these traditional defenses has been superseded by new defenses
called comparative
negligence and comparative fault.
Contributory negligence is the plaintiff’s failure to exercise
reasonable care for
her own safety. Where it still applies, contributory negligence
is a complete defense for
the defendant if it is a substantial factor in producing the
plaintiff’s injury. Traditionally,
even a minor failure to exercise reasonable care for one’s own
safety, only a slight
departure from the standard of reasonable self-protectiveness,
gave the defendant a
complete contributory negligence defense. For example, the
rule may prevent slightly
negligent plaintiffs from recovering any compensation for their
losses, while only

marginally more careful plaintiffs get a full recovery.
In response to [complaints of its harsh impact on most
plaintiffs], most of the
states have adopted comparative negligence systems either by
statute or by judicial
decision. The details of these systems vary, but the principle
underlying them is
essentially the same: Courts seek to determine the relative
negligence of the parties and
award damages in proportion to the degree of negligence
determined. The formula is:
1 Excerpts taken from Jane P. Mallor, et al., Business Law and
the Regulatory Environment (11th ed. 2001).
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Plaintiffs recovery = Defendant’s percentage share of the
negligence causing the injury
multiplied by Plaintiff’s provable damages.
Assumption of the risk is the plaintiff’s voluntary consent to a
known danger.
Voluntariness basically means that the plaintiff accepted the
risk of her own free will;
knowledge means the nature and extent of the risk was
subjectively present to the
plaintiff’s consciousness. Often, the plaintiff’s knowledge and
voluntariness are implied
from the facts of the case. A plaintiff can also expressly
assume the risk of injury by

entering a contract purporting to relieve the defendant of a duty
of care that he would
otherwise owe to the plaintiff.
What happens to assumption of the risk in comparative
negligence states? Some
of these states have eliminated assumption of the risk as a
separate defense. Assumption
of the risk is often incorporated within the state’s comparative
negligence scheme. In
such states, comparative negligence basically becomes
comparative fault. In a
comparative fault state, therefore, the fact finder determines the
plaintiff’s and the
defendant’s relative shares of the fault, including assumption of
the risk, causing the
plaintiff’s injury.
B. Breach of Contract
Contract law seeks to encourage people to rely on the promises
made to them by
others. Contract remedies focus on the economic loss caused by
breach of contract, not
the moral obligation to perform the promise. The objective of
granting a remedy in a
case of breach of contract is simply to compensate the injured
party.
The usual remedy is an award of money damages that will
compensate the injured
party for his losses. This is called a legal remedy or remedy at
law, because the
imposition of money damages in our legal system originated in
courts of law. A person
who has been injured by a breach of contract is entitled to

recover compensatory
damages.
1. Protected Interests
In calculating the compensatory remedy, a court will attempt to
protect the
expectation interest of the injured party by giving him the
“benefit of his bargain”
(placing him in the position he would have been in had the
contract been performed as
promised). To do this, the court must compensate the injured
person for the provable
gains that he has been prevented from realizing by the breach of
contract.
A promissee’s reliance interest is his interest in being
compensated for losses that
he has suffered by changing his position in reliance on the other
party’s promise. In
some cases, such as when a promisee is unable to prove his
expectation interest with
reasonable certainty, the promisee may seek a remedy to
compensate for the loss suffered
as a result of relying on the promisor’s promise rather than for
the expectation of profit.
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A restitution interest is a party’s interest in recovering the
amount by which he
has enriched or benefited the other. Both the reliance and
restitution interests involve
promisees who have changed their position. The difference
between the two is that the
reliance interest involves a loss to the promisee that does not
benefit the promisor, wheras
the restitution interest involves a loss to the promissee that does
constitute an unjust
enrichment to the promisor. A remedy based on restitution
enables a party who has
performed or partially performed her contract and has benefited
the other party to obtain
compensation for the value of the benefits that she has
conferred.
2. Compensatory Damages
Normally, compensatory damages include one or more of three
possible items:
loss in value, any allowable consequential damages (also called
special damages), and
any allowable incidental damages. The starting point in
calculating compensatory
damages is to determine the loss in value of the performance
that the plaintiff had the
right to expect. The calculation of the loss in value experienced
by an injured party
differs according to the sort of contract involved and the
circumstances of the breach. In
contracts involving nonperformance of the sale of real estate,
for example, courts
normally measure loss in value by the difference between the

contract price and the
market price of the property. Where a seller has failed to
perform a contract for the sale
of goods, courts may measure loss in value by the difference
between the contract price
and the price that the buyer had to pay to procure substitute
goods.
Consequential damages are damages that do not flow directly
and immediately
from an act but rather flow from the results of the act; damages
that are indirect
consequences of a breach of contract. For example, Apex
Trucking Company buys a
computer system from ABC Computers. The system fails to
operate properly, and Apex
is forced to pay its employees to perform the tasks manually,
spending $10,000 in
overtime pay. In this situation, Apex might seek to recover the
$10,000 in overtime pay
in addition to the loss of value that it has experienced. Lost
profits flowing from a breach
of contract can be recovered as consequential damages if they
are foreseeable and can be
proven with reasonable certainty.
Incidental damages compensate for reasonable costs that the
injured party incurs
after the breach in an effort to avoid further loss. For example,
if Smith Construction
Company breaches an employment contract with Brice, Brice
could recover as incidental
damages those reasonable expenses he must incur in an
attempting to procure substitute
employment, such as long-distance telephone tolls or the cost of
printing new resumes.

3. Limitations on Recovery
An injured party’s ability to recover damages in a contract
action is limited by
three principles:
(1) A party can recover damages only for those losses that he
can prove with reasonable
certainty. Losses that are purely speculative are not
recoverable.
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(2) A breaching party is responsible for paying only those
losses that were foreseeable to
him at the time of contracting. A loss is foreseeable if it would
ordinarily be expected to
result from a breach or if the breaching party had reason to
know of particular
circumstances that would make his loss likely.
(3) Plaintiffs injured by a breach of contract have the duty to
mitigate (avoid or
minimize) damages. A party cannot recover for losses that he
could have avoided
without undue risk, burden, or humiliation.
4. Punitive Damages
Punitive damages are damages awarded in addition to the
compensatory remedy
that are designed to punish a defendant for particularly

reprehensible behavior and to
deter the defendant and others from committing similar behavior
in the future. The
traditional rule is that punitive damages are not recoverable in
contracts cases unless a
specific statutory provision (such as some consumer protection
statutes) allows them or
the defendant has committed fraud or some other independent
tort. A few states will
permit the use of punitive damages in contracts cases in which
the defendant’s conduct,
though not technically a tort, was malicious, oppressive, or
tortuous in nature.
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America’s Population
Determine how the changing demography of the U.S.
population has affected American politics.
Where we live, how we work, our racial and ethnic composition,
and our average age and standard of living have all changed
substantially over the course of our history. Each change has
influenced and continues to influence our political life. In this
section we highlight several of the most important of these
demographic characteristics.
Growing
Unlike most other rich democracies, the United States continues

to experience significant population growth. According to the
Bureau of the Census, the population grew almost 10 percent
between 2000 and 2010 to a total of almost 309 million people
and had passed 318 million by the end of 2014. This leaves the
United States as the third most populous country in the world,
trailing only China at 1.36 billion and India at 1.24 billion.
During the same period, other countries experienced stagnant
growth or their population actually declined, as it did in Japan
and Russia. Population growth has been the product of both a
higher-than-replacement birth rate (more people are being born
than dying2) and immigration. While the U.S. birth rate and
immigration fell after the 2007 recession hit, both rebounded a
bit in 2013. Both births and immigration are important for
economic growth and fiscal health. When a country’s population
grows, more people become part of the working, tax-paying
population, helping to cushion the burden on national budgets
of those who have retired, and more businesses are formed to
service the needs of new and growing households. There is a
growing market in countries with increasing populations for
houses and apartments, furniture, appliances, electronics, cars,
and all the multitude of services and products associated with
them.
Some worry, however, that population growth in a rich country
like the United States must at some point run up against the
limits of available resources, such as oil, and that the natural
environment will be hurt as more people invariably produce
more pollutants. Of course, an increase in population need not
lead to such outcomes if business firms and consumers use more
efficient and less polluting forms of energy, let us say, and use
and dispose of other resources in more environmentally friendly
ways. How to do this and what the relative roles government
and the private sector should play in accomplishing these
outcomes is a recurring element of political debate in the United
States today.
Becoming More Diverse

Based on a long history of immigration, ours is an ethnically,
religiously, and racially diverse society.3 The white European
Protestants, black slaves, and Native Americans who made up
the bulk of the U.S. population when the first census was taken
in 1790 were joined by Catholic immigrants from Ireland and
Germany in the 1840s and 1850s (see Figure 4.1). In the 1870s,
Chinese migrated to America, drawn by jobs in railroad
construction. Around the turn of the twentieth century, most
emigration was from eastern, central, and southern Europe, with
its many ethnic, linguistic, and religious groups. Today most
emigration is from Asia and Latin America, with people from
Mexico representing the largest single component. Starting in
the 1990s and continuing today, the number of immigrants from
the Middle East and other locations with Muslim populations
has been significant. More than 1 million people from
predominantly Muslim countries in the Middle East, Africa, and
Asia immigrated to the United States between 2000 and 2013,
bringing their total to about 3.5 million.4
Figure 4.1 Immigration to the United States, by Decade
Measuring immigration to the United States in different ways
gives rise to quite different interpretations of its scale.
Measured in total numbers, the largest numbers of immigrants
in U.S. history came to the United States in the decade between
2000 and 2010. However, the immigration rate (total number of
immigrant/U.S. population × 1000) is a much more important
comparative statistic. As the figure demonstrates, the rate of
U.S. immigration was highest in the middle and late nineteenth
century and in the early part of the twentieth century but fell
after that as stringent immigration laws came into force. The
rate of recent immigration, relative to the total U.S.
population—even with the high numbers of immigrants who
have come to the country over the past two decades—remains
historically low, although it has been increasing steadily since
its low point in the 1930s. In what ways do we still see the

effects of this immigration history?
1 Excerpts taken from Jane Mallor, Business Law and the
Regulatory Environment (11th ed. 2001).
Page 1
Key Concept 2: Understanding the Differences Between
1) Intentional Tort Liability
(2) Negligence Liability, and 3) Strict Liability.
I. Torts in General:
A. Definition: A tort is a civil wrong that is not a breach
(breaking) of a
contract. Tort cases and books on tort law identify different
kinds of wrongfulness,
culpability, or fault and define them differently. We use the
following four kinds of
wrongfulness.
B. Intent. We define intent as the desire to cause certain
consequences or
substantial certainty that those consequences will result from
one’s behavior.
A. Recklessness. Recklessness arises when one’s behavior
demonstrates
conscious indifference to a known high risk of harm created by
one’s
behavior.
B. Negligence. We define negligence as conduct that falls below
the level
necessary to protect others against unreasonable risks of harm.

C. Strict liability. Strict liability is liability without fault, or
liability
irrespective of fault. In a strict liability case, the plaintiff need
not prove
intent, recklessness, negligence, or any other kind of
wrongfulness on the
defendant’s part. However, strict liability is not automatic
liability. A
plaintiff must prove certain things in any strict liability case,
but fault is
not one of them.
II. Battery:
Battery is the intentional, harmful or offensive, touching of
another without his
consent. A contact is harmful if it produces bodily injury.
However, battery also includes
non-harmful contacts that are offensive-calculated to offend a
reasonable sense of
personal dignity. The intent required for battery is either: (1)
the intent to cause a harmful
or offensive contact, or (2) the intent to cause apprehension that
such a contact is
imminent. If, in order to scare Pine, Delano threatens to shoot
Pine with a gun he
mistakenly believes is unloaded, and ends up shooting Pine,
Delano would be liable for
battery.
For battery to occur, moreover, the person who suffers the
harmful or offensive
contact does not have to be the person whom the wrongdoer
intended to injure. Under a

general intentional tort concept called transferred intent, a
defendant who intends to
injure one person but actually injures another is liable to the
person injured, despite the
absence of any specific desire to injure him. So, if Delano
throws a rock at Thomas and
hits Pike instead, Delano would be liable to Pike for battery.
As the previous examples suggest, the touching necessary for
the battery does not
require direct contract between the defendant’s body and the
plaintiff’s body. Thus,
Delano would also be liable if he successfully laid a trap for
Pike or poisoned him.
Furthermore, there is a touching if the defendant causes contact
with anything that is
attached to the plaintiff’s body. Finally, the plaintiff need not
be conscious of the battery
at the time it occurs. However, there is no liability for battery if
the plaintiff consented to
the touching. As a general rule, consent must be freely and
intelligently given to be a
defense to battery. Consent also may be inferred from a
person’s voluntary participation
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Key Concept #2
Page 2
in an activity, but it is ordinarily limited to contacts that are a
normal consequence of the

activity, but it is ordinarily limited to contacts that are a normal
consequence of the
activity. Thus, Joe Frazier would not win a battery suit against
Muhammad Ali for
injuries he suffered during one of their title fights, but a quarter
back who is knifed by a
blitzing linebacker has a valid battery claim. Finally, the law
infers consent to many
touching that are customary in normal social life or are
reasonably necessary to it.
III. Assault
Assault [is] defined as an intentional attempt or offer to cause a
harmful or
offensive contact with another, where the attempt or offer
causes a reasonable
apprehension of imminent battery in the other person’s mind.
The necessary intent is the
same as the intent required for battery. In an assault case,
however, it is irrelevant
whether the threatened contact, actually occurs. Instead, the key
thing is the plaintiff’s
apprehension of a harmful or offensive contact. Apprehension is
not the same thing as
fear; it might be described as a mental state like: “Uh, oh, here
comes a battery!”
Thus, even the bravest people can be apprehensive and can
recover for assault.
This apprehension must concern an imminent or immediate
battery. Thus, threats of a
future battery do not create liability for assault. In addition, the
plaintiff must experience
apprehension at the time the threatened battery occurs.
Finally, the plaintiff’s apprehension must be reasonable. As a

result, threatening
words normally are not an assault unless they are accompanied
by acts or circumstances
indicating the defendant’s intent to carry out the threat.
IV. False Imprisonment
False imprisonment is the intentional confinement of another
person for an
appreciable time (a few minutes is enough) without his consent.
The confinement
element essentially involves the defendant’s keeping the
plaintiff within a circle that the
defendant has created.
It may result from physical barriers to the plaintiff’s freedom of
movement, such
as locking a person in a room with no other doors or windows,
or from physical force or
the threat of physical force against the plaintiff. Confinement
also may result from the
assertion of legal authority to detain the plaintiff, or from the
detention of the plaintiff’s
property. Likewise, a threat to harm another, such as the
plaintiff’s spouse or child, can
also be confinement if it prevents the plaintiff from moving.
The confinement must be complete. Partial confinement of
another by blocking
her path or by depriving her of one means of escape where
several exist, such as locking
one door of a building having several unlocked doors, is not
false imprisonment. The fact
that a means of escape exists, however, does not relieve the
defendant of liability where
the plaintiff cannot reasonably be expected to know of its

existence. The same is true if
the escape route involves some unreasonable risk of harm to the
plaintiff, such as walking
a tightrope or climbing out of a second story window. The
confinement also may be
complete where using the escape route would involve some
affront to the plaintiff’s sense
of personal dignity; for example, imagine that D steals P’s
cloths while P is swimming in
the nude.
Key Concept #2
Page 3
Although there is some disagreement on the subject, courts
usually hold that the
plaintiff must have knowledge of his confinement before
liability for false imprisonment
arises. In addition, there is no liability where the plaintiff has
consented to his
confinement. Such consent, however, must be freely given;
consent in the face of an
implied or actual threat of force or an assertion of legal
authority by the confiner is not
freely given.
Today, many false imprisonment cases involve a store’s
detention of people
suspected of shoplifting. In an attempt to accommodate the
legitimate interests of
storeowners, most states have passed statutes giving them a
conditional privilege to stop

suspected shoplifters. To obtain this defense, the owner usually
must act with reasonable
cause, act in a reasonable manner, and detain the suspect for
only a reasonable length of
time.
For example, suppose K-Mart’s Loss Prevention Manager
personally observes a
customer places an item in his pocket and then hastily heads to
the door. The Loss
Prevention Manager then stops the customer, asks him to empty
his pockets at the Loss
Prevention Room, and after discovering that no items have been
stolen let him go. The
entire incident lasted for five minutes. K-Mart would not be
held liable for false
imprisonment under the conditional privilege of a merchant’s
defense because it had
reasonably cause to believe that a theft had taken place, it
conducted the investigation in
a reasonable manner and for a reasonable length of time.
V. Negligence;
A. In general:
The elements of a negligence case- the things the plaintiff must
prove to recover-
are: (1) a breach of duty by the defendant, (2) actual injury
suffered by the plaintiff, and
(3) actual and proximate causation between the breach and the
injury. To win, a plaintiff
must also overcome any defenses to negligence liability raised
by the defendant. The two
traditional negligence defenses are contributory negligence and

assumption of risk.
B. Breach of Duty:
1. The Reasonable Person Standard: The basic idea behind
negligence law is that each member of society has a duty to
behave so as to avoid
unreasonable risks of harm to others. This means that each of us
must act like a
reasonable person of ordinary prudence in similar
circumstances. If a person’s conduct
falls below this standard, he has breached a duty. This
“reasonable person ” standard is
objective in two senses of the term. First, the reasonable person
is a hypothetical person
with some ideal attributes- not a real human being. Second, the
reasonable person
standard focuses on behavior rather than on the defendant’s
subjective mental state.
Finally, the standard is flexible because it lets courts tailor their
decisions to the facts of
the case.
The most important such factor is the reasonable foreseeability
of harm. The idea
is that the reasonable person acts so as to avoid reasonably
foreseeable risks of harm to
others. Suppose that Donald gets into an automobile accident
with Peter after Donald
falls asleep at the wheel. Because falling asleep at the wheel
involves a foreseeable risk
Key Concept #2
Page 4

of harm to others, a reasonable person would not behave that
way. And because Donald’s
conduct fell short of this behavioral standard, he has breached a
duty to Peter. However,
this probably would not be true if Donald’s falling asleep at the
wheel was due to a
sudden, severe, and unforeseeable blackout. On the other hand,
there probably would be a
breach of duty if Donald drove the car after being warned by a
doctor that he was subject
to sudden blackouts.
To a limited extent, negligence law also considers the personal
characteristics of
the defendant. For example, children are generally required to
act, as would a reasonable
person of similar age, intelligence, and experience under similar
circumstances. People
with physical disabilities must act, as would a reasonable
person with the same disability.
Mental deficiencies, however, ordinarily do not relieve a person
from the duty to conform
to the normal reasonable person standard. The same is true of
voluntary and negligent
intoxication.
Finally, negligence law is sensitive to the context in which the
defendant acted.
For example, someone confronted with an emergency requiring
rapid decisions and
action need not employ the same level of caution and
deliberation as someone in
circumstances allowing for calm reflection and deliberate
action.

2. Special Duties:
In some situations, courts have fashioned particular negligence
duties rather that
applying the general reasonable person standard. When
performing their professional
duties, for example, professionals such as doctors, lawyers, and
accountants generally
must exercise the knowledge, skill, and care ordinarily
possessed and employees by
members of the profession. Also, common carriers and
(sometimes) innkeepers are held
to an extremely high duty of care approaching strict liability
when they are sued for
damaging or losing their customer’s property. Many courts say
that they also must
exercise great caution to protect their passengers and lodgers
against personal injury-
especially against the foreseeable wrongful acts of third person.
C. Injury:
A plaintiff in a negligence case must prove not only that the
defendant breached a
duty owed to the plaintiff, but also that the plaintiff suffered
actual injury. Ordinarily,
personal injury to the plaintiff and damage to her property meet
this test. Purely monetary
damage such as lost profits may sometimes qualify as well.
D. Causation
Even if the defendant has breached a duty and the plaintiff has
suffered actual
injury, there is no liability for negligence without the required
causal relationship

between breach and injury. To determine the existence of
actual cause, many courts
employ a “but for” test. Under this test, a defendant’s conduct
is the actual cause of a
plaintiff’s injury if that injury would not have occurred except
for (or but for) the
defendant’s breach of duty.
For example, during a bad storm a person drowns after falling
from a ship that the
owner failed to equip with lifeboats. If the jury concludes that a
life boat would not have
saved the victim’s life because of the severity of the storm, the
failure to provide a
Key Concept #2
Page 5
lifeboat is not a cause in fact of the victim’s death. But for the
negligent failure to provide
a lifeboat on the ship, the person would still have drowned.
VII. Strict Liability
A. In general: Strict liability is liability without fault or
irrespective of fault.
This means that in strict liability cases, the defendant is liable
even though he did not
intend to cause the harm and did not bring it about through his
recklessness or
negligence.

B. Abnormally Dangerous Activities: Abnormally dangerous
(or
ultrahazadous) activities are activities that necessarily involve a
risk of harm to others
that cannot be eliminated by the exercise of reasonable care.
Hence, the actor engaging in
abnormally dangerous activities is held strictly liable for
injuries sustained by third
parties as a result of the actor’s activities. Among the activities
treated as abnormally
dangerous are blasting, crop dusting, stunt flying, and gasoline
by truck.
C. Statutory Strict Liability: Strict liability principles are also
embodies in
modern legislation. The most important examples are the
workers’ compensation acts
passed by most states early in this century. Such statutes allow
employees to recover
statutorily limited amounts from their employers without any
fault on the employer’s
part. Employers participate in a compulsory liability insurance
system on to consumers,
who then become the industrial production. Other examples of
statutory strict liability
include the dram shop statutes of some states, which impose
liability on sellers of
alcoholic beverage without proof of negligence when third
parties are harmed due to a
buyer’s intoxication. Also included is the statutory strict
liability that some states impose
on the operators of aircraft for ground damage resulting from
aviation accidents.

*
Paula's Palette
Student Coaching Notes
*
*
Question 4:
False ImprisonmentReasonable Cause:Articulable knowledge of
particular facts sufficiently reasonable to suspect the detained
person of shoplifting Reasonable MannerReasonable Time
*

*
Question 4:
Reasonable Manner
NoUse of threatsCoercion of customerIntimidation of
customerUse of abusive language towards the customerUse of
force against the customerFailure to promptly inform the
customer of the reasons for the detentionDetention takes place
in public next others
*
*
Question 5: Future Income CompensationGoal of compensatory
damages:Make the injured party whole againLost future incomes
are recoverable:Nature and occurrence of lost future income
must be shown by evidence of reasonable reliability, not mere
speculation. Evidence of reasonable reliability may include
reliance on specific statistical models based on past earning
records. Proper measurement of damages is the present value of
net future income after taxes.
*
1

Bob Roy, Customer Relations Manager, for Paula’s Palette
(“Paula”), was in a quandary. He pondered
over a memo from Ben Gordon, Loss Prevention Manager at
Paula, (Exhibit 1) and a letter addressed to
him from Nancy Park, a customer, (Exhibit 2). What appeared
to have been a routine shoplifting incident
on the part of Mrs. Park turned out to lack evidence. To make
matters worse, the suspect was injured
during apprehension. It appeared that Paula faced the
possibility of a lawsuit because of the incident.
Jack Smith, Chief Administrator, had asked Mr. Roy to assess
the legal and financial consequences of
the case, make recommendations, and report back to him.
Paula is a large stationery and drawing supplies retailer with
approximately 50 stores located throughout
the State of Green. The firm has been established for many
years, making steady, if unspectacular
profits.
EXHIBIT 1
M E M O R A N D U M
DATE: January 3, 2006
TO: File
FROM: Ben Gordon, Loss Prevention Manager

SUBJECT: Shoplifting Incident
_____________________________________________________
_________________________
At 2:20 p.m. today, I observed a customer, Nancy Park, who
was standing next to calligraphy sets in the store, make
a sudden move to her pocket. She then proceeded at an
accelerated pace toward the exit. I noticed that her side
pocket was stuffed. I then proceeded directly to where the
customer had been standing and noticed that a
calligraphy pen set was missing. It so happened that I noticed
earlier that day that the calligraphy pen sets were fully
stocked up. I assumed that the customer, who I had previously
observed, had shoplifted the set. As the customer
was about to leave the store by then, I began chasing after her
and reached her at the store’s entrance. Fearing that I
might lose her in the crowd, I shouted at her to stop. I then
grasped her by the arm and shoved her back to the store.
Apparently, the customer lost her balance and fell on her back
hitting one of the checkout counters. She seemed to
be hurt a little, but then I offered to help her stand up, although
she continued to limp. I then asked her if she had
forgotten to pay for something. She seemed surprised and said
that she does not understand what I am talking about.
I then directed her to follow me to the Loss Prevention room.
Kimberly Youseff, one of the checkout employees,
helped her walk toward the Loss Prevention room as the
customer complained she was having difficulties walking
and was experiencing terrible back pain. I closely walked
behind the two of them.
Per store’s protocol, I then advised the customer that she would

have to wait until the store’s manager would come
back from a meeting for the investigation to begin. The store’s
manager, Jennifer Parker, was due to return from a
meeting at 2:30 p.m. that day. Unfortunately, she only returned
at 3:30 p.m. At that time, Mrs. Parker advised the
customer why she was being held up and asked her to empty her
pockets. However, no calligraphy set was found.
Mrs. Parker then apologized for the inconvenience, gave her a
$25 gift certificate, and wished the customer well.
I really did not mean to hurt the customer, but apparently her
fall did some damage to her as she kept complaining
that her back hurts.
2
EXHIBIT 2
Nancy Park
19853 Angel Blvd.
Angel City, Green
February 18, 2006
Jack Smith, Chief Administrator
Paula’s Palette
10984 Glitter Blvd.
Beverly Flats, Green

Re: incident dated January 3rd, 2006
Dear Mr. Smith:
Based on permanent injuries inflicted on me by one of your
employees while falsely imprisoning me on January 3rd,
2006, I demand compensation in the sum of $765,000 in medical
care expense and $500,000 for loss of future
income.
On January 3rd, 2006, I came to your store to locate some art
supplies for my daughter’s art project at school. While I
was examining a number of calligraphy sets that you had on the
shelves, I was not able to find the calligraphy set my
daughter’s teacher requested. Rushed to make it back to an
appointment I had with a client that afternoon, I headed
toward the store’s exit. As I was about to leave the store’s
premises, I heard someone shout behind me ordering me
to stop immediately while using some foul language. When I
looked back, I saw a six-foot, two hundred pound man
grabbing my arm and shoving me back to the store. Due to the
tremendous force of that shoving, I lost balance and
fell on my back, right against one of the store’s checkout
counters. I immediately felt extreme pain in my back and
was unable to move. I was then helped out by a store’s
employee and was ordered to go to the Loss Prevention
room. I was told that police would be called to the premises if I
did not directly go the Loss Prevention room. There
were approximately twenty-five customers watching me as I was
escorted to the Loss Prevention room. I felt
extremely embarrassed by the ordeal. Once we got to the Loss
Prevention room, I asked the man, who accosted me
at the store’s entrance and who then followed me to the room,
the reason for my detention. He then mentioned that it
is against the store’s policy for him to discuss the matter further

and that I would have to wait for the store’s manager.
Almost an hour later, the store manager, Ms. Parker, arrived. At
that point she notified me that I have been detained
because one of the store’s employees had observed me stealing
a calligraphy pen set. I immediately denied any
involvement in the matter and offered to empty my pockets.
Ms. Parker was then satisfied that I have done nothing
wrong. She politely apologized and allowed me to leave the
store’s premises.
Later that afternoon, I was admitted to Ceder Sinai Hospital
emergency room as I was experiencing severe back pain
arising out of my fall earlier that day. That same night, a team
of surgeons operated on my back as the condition
severely deteriorated. However, they were unable to
successfully treat the back injuries in this and in two other
surgeries that followed. I am now diagnosed with an abnormal
degeneration of my spine resulting in irreparable back
injury and permanent disability. This condition prevents me
from ever walking again or from ever sitting down for
more than ten minutes at a time. As a result of this permanent
condition, I had to quit my job as a regional
salesperson for Derk, a pharmaceutical company. My doctor’s
diagnosis indicates that these injuries to my back
would prevent me from ever working again.
Besides my past and future medical bills, I am also demanding
that you compensate me for loss of future income. As
a fifty-five year old, highly successful career woman in the field
of pharmaceutical sales, I am now deprived of any
prospects of employment for the rest of my life. I am attaching
a copy of my gross yearly income from my sales
position during the last fifteen years. (See Exhibit 3).
Please respond to my settlement offer on or before April 15. I
hope this matter could be resolved amicably.

Sincerely,
Nancy Park
Enclosures
3
EXHIBIT 3
Number Year Gross Income Price Index*
1 1991 50,599 136.2
2 1992 53,109 140.3
3 1993 53,301 144.5
4 1994 56,885 148.2
5 1995 56,745 152.4
6 1996 60,493 156.9
7 1997 61,978 160.5
8 1998 61,631 163.0
9 1999 63,297 166.6
10 2000 66,531 172.2

11 2001 67,600 177.1
12 2002 66,889 179.9
13 2003 70,024 184.0
14 2004 70,056 188.9
15 2005 71,857 195.3
* Source: U.S. Department of Labor, Urban Consumers, 1982 -
1984 = 100
4
Required:
Suppose you are Bob Roy. You have just confirmed that, for all
practical purposes, Mrs. Park will be
unable to work at all during the next ten years, including all of
2006. Write a report, addressed to Jack
Smith, Chief Administrator of Paula. Be sure to follow the
guidelines for writing a report found in the
Gateway Web Site.
To prepare for this case, you may want to review business law
LDC concepts 2 and 9, financial
accounting LDC concept 7, macroeconomics LDC concept 1,
and statistics LDC concepts 1, 4, and 8.

5
PAULA’S PALETTE LIBRARY
PAUL CALDWELL, PLAINTIFF-
RESPONDENT, v. TODD
KHLER DEFENDANT-APPELLANT
A-108 September Term 1993
Supreme Court of Green
March 14, 1994, Argued
July 6, 1994, Decided
PRIOR HISTORY: [***1]
COUNSEL: W. Stephen Leary argued the
cause for appellant.

Raymond T. Roche argued the cause for
respondent
OPINIONBY: HANDLER
OPINION:
On May 21, 1987, Todd Khler (hereinafter
defendant), who was operating a car struck
the rear end of a disabled vehicle at or near
the shoulder of the Pulaski Skyway. The
disabled car had stalled in the right lane of
the roadway and its owner, Deloris Haynes,
had left the car to seek help. Plaintiff, Paul
Caldwell, who remained in the disabled
vehicle, was injured by the impact. Caldwell,
who was thirty-five-years-old at the time of
the accident, was examined and treated
over the years by various doctors and
hospitals. For almost a year after the May
1987 accident, Caldwell continued treatment
with Dr. Sherman, a board-certified
internist, who initially treated Caldwell for a
spasm, tenderness, and a reduced range of
motion in his back. Despite Caldwell's
treatment, he remained in pain. Eventually,
Dr. Sherman suspected the "possibility of
tuberculosis of the spine." Dr. Sherman
testified that in his opinion "the accident
unmasked or reactivated latent tuberculosis"
because he could find no other provoking
factors, and medical literature indicated that
"significant auto trauma can be a provoking
factor."

Later, Caldwell began treatment with Dr.
Lee, an orthopedic surgeon. In late 1990,
Dr. Lee admitted Caldwell to the hospital
because Caldwell was still experiencing
back pain and his "right leg was still getting
numb every now and then." Caldwell
testified that Dr. Lee told him he had
tuberculosis of the spine. Dr. Lee's
discharge summary indicated the final
diagnosis as post-traumatic lumbosacral
sprain with spasms, psoas abscess with
multiple lumbar abscesses, suspected
tuberculosis, and osteomyelitis with
destruction of certain vertebrae. Apparently,
Dr. Lee's antibiotic treatment of Caldwell
ended the progress of the disease. No
evidence suggested that further destruction
of spinal bone or other increase in disability
had occurred or would occur in the future.
Caldwell testified that his back pain was
"sharp," he was "in constant pain every
day," and "everything became a problem,"
including tying his shoes, walking, and
driving. Caldwell denied ever having had
any back pain before the accident.
Before the accident, plaintiff had been
employed for two to three years as a general
laborer by a construction company that
repaired bridges and tunnels. At the time of
the accident, Caldwell earned $25.65 per
hour and worked forty or forty-five hours per
week, although his hours varied, seemingly
due to the seasonal nature of the work. After

the accident Caldwell missed three months
of work.
Caldwell testified that at the construction
company he earned an average gross
weekly income of about $ 1,000. His
testimony suggested that his pre-accident
annual salary before taxes had been about $
44,000. Caldwell stated that in 1987, the
year of the accident in which he missed
three months of work, he had earned $
33,000. However, Caldwell estimated that
his gross wages for the previous year in his
work for the same company were only
"twenty something" thousand.
6
After the accident and the three-month
absence, Caldwell continued working for the
company, with lighter work assignments but
at the same salary, until July 1990, more
than three years after the accident. In July
1990, the company discharged Caldwell.
Caldwell testified that he had been fired
because he could no longer "do the
strenuous work that it would take to do . . .
the lifting, and other things like that."
Caldwell also stated that "[b]eing terminated
with a construction company means you
can be fired one day and back at work the
next day just because, you know . . .
[t]here's quite a few they would fire one

week, hire back the next week. So I was just
one of them." That was the first time the
company fired Caldwell. He did not seek to
be rehired. Caldwell remained unemployed
for a period of eighteen or nineteen months.
In February or March 1992, he found work
driving a senior citizens' van twenty hours a
week at $ 5.50 per hour. At the time of trial,
Caldwell was earning a little over $ 6,000
per year. He said he was capable of driving
a full week, but the job offered only twenty
hours. Thus, in addition to the initial three-
month absence from work, Caldwell missed
eighteen or nineteen months between the
construction and the driving job. Then, he
worked part-time during a five- or six-month
period during which he had the twenty-hour-
per-week driving job.
Ultimately, the jury found defendant Todd
Khler 100% liable and awarded Caldwell a
total of $1,550,000: $ 50,000 for past lost
wages and $ 1.5 million for future lost
wages.
On appeal, defendant-appellant sought an
order for a new trial on the computation of
future lost wages.
II.
In assessing whether the quantum of
damages assessed by the jury is excessive,
a trial court must consider the evidence in
the light most favorable to the prevailing
party in the verdict. Taweel v. Starn's

Shoprite Supermarket, 276 A.2d 861
(1971). Therefore, a trial court should not
interfere with a jury verdict unless the verdict
is clearly against the weight of the evidence.
Horn v. Village Supermarkets, Inc., 615 A.2d
663 (App. Div.1992). The verdict must shock
the judicial conscience. Carey v. Lovett, 622
A.2d 1279 (1993).
III.
The principal goal of damages in personal-
injury actions is to compensate fairly the
injured party. Deemer v. Silk City Textile
Mach. Co., 475 A.2d 648 (App.Div.1984).
Fair compensatory damages resulting from
the tortious infliction of injury encompass no
more than the amount that will make the
plaintiff whole, that is, the actual loss. Ruff v.
Weintraub, 519 A.2d 1384 (1987). "The
purpose, then, of personal injury
compensation is neither to reward the
plaintiff, nor to punish the defendant, but to
replace plaintiff's losses." Domeracki v.
Humble Oil & Ref. Co., 443 F.2d 1245, 1250
(3d Cir.), (1971).
A.
An injured party has the right to be
compensated for diminished earning
capacity. Smith v. Red Top
Taxicab Corp., 168 A. 796 (E. & A.1933).
The measure of damages for tort recovery

encompassing diminished earning capacity
can be based on the wages lost as a result
of the defendant's wrongdoing. Ibid. That
measure includes the value of the decrease
in the plaintiff's future earning capacity. Coll
v. Sherry, 176, 148 A.2d 481 (1959). When
the effects of injury will extend into the
future, "the plaintiff is entitled to further
compensation -- for [the] capacity to earn in
the future has been taken from the plaintiff,
either in whole or in part." Robert J.
Nordstrom, Income Taxes and Personal
Injury Awards, 19 Ohio St.L.J. 213, 217
(1958).
However, the evaluation of such a decrease
in future earning capacity is necessarily
complicated by the uncertainties of the
future. Although generally objectionable for
the reason that their estimation is
conjectural and speculative, loss of future
income dependent upon future events are
allowed where their nature and occurrence
can be shown by evidence of reasonable
reliability. Case precedent recognize and
apply the general principle that damages for
7
the loss of future income are recoverable
where the evidence makes reasonably
certain their occurrence and extent. The
award of damages for loss of future income
depends upon whether there is a

satisfactory basis for estimating what the
probable earnings would have been had
there been no tort. A satisfactory basis for
an existing basis may include reliance on
specific economic or statistical models
based on past earnings record. See Tenore
v. Nu Car Carriers, Inc., 67 N.J. 466, 494,
341 A.2d 613 (1975). The "proper measure
of damages for lost future income in
personal-injury cases is net income after
taxes." Ruff, supra, 105 N.J. at 238, 519
A.2d 1384.
The net-income rule embodies the principle
that "damages in personal-injury actions
should reflect, as closely as possible, the
plaintiff's actual loss." Ibid.; see Tenore,
supra, 67 N.J. at 477, 341 A.2d 613. Hence,
"If plaintiff gets, in tax-free damages, an
amount on which he would have had to pay
taxes if he had gotten it as wages, then
plaintiff is getting more than he lost." 4
Fowler V. Harper et al., The Law of Torts §
25.12 (2d ed. 1986); see Ruff, supra, 105
N.J. at 238, 519 A.2d 1384. The
measurement of aftertax income is the
"more accurate, and therefore proper,
measure of damages," Ruff, supra, 105
N.J. at 241, 519 A.2d 1384, because
personal-injury damage awards are subject
to neither federal nor state taxes. 26 U.S.C.
§ 104(a)(2); N.J.S.A. 54A: 6-6. See
generally Annotation, John E. Theuman,
Propriety of Taking Income Tax into
Consideration in Fixing Damages in
Personal Injury or Death

Action, 16 A.L.R.4th 589, 611 (1982 &
Supp.1993).
Evidence of loss of future income must be
discounted to present value, a procedure
that recognizes that the injured party would
have had his income spread out over the
remaining years of his working life. Tenore,
supra, 67 N.J. at 474, 341 A.2d 613.
In this case, the jury apparently based its
future-lost-income award of $ 1.5 million
only on Caldwell's gross income, given that
neither plaintiff nor defendant presented any
evidence of net income. The jury probably
had calculated the future lost wages award
by multiplying the gross income figure of $
1,000 per week by the number of weeks of
Caldwell's life expectancy. The jury may
have reasonably concluded that plaintiff
used to make $ 1,000 per week but, despite
his demonstrated desire to work steadily and
hard, he was now doomed to jobs paying no
more than his current earnings of $ 120 per
week for the rest of his life.
Despite the absence of evidence of plaintiff's
net income, the trial court instructed the jury
to use net income as the measure of lost
wages. Nevertheless, the jury seemingly did
not attempt to ascertain or apply net income
in its computation of the award. See Lesniak
v. County of Bergen, 117 N.J. 12, 28-29,
563 A.2d 795 (1989).

In this case, neither party presented the jury
with evidence of plaintiff's net income. The
deficiencies in the evidence led the jury to
reach exaggerated awards for future
income. The verdict obviously was distorted
by evidence that was limited to gross
income. In a fifty-week year, Caldwell would
lose gross earnings of $ 880 per week or $
44,000 per year. We may surmise that the
jury had multiplied Caldwell's life expectancy
of 34.55 years by the $ 44,000 in lost gross
earnings to arrive at $ 1,520,000, which was
rounded down to $ 1,500,000. That award
contemplated plaintiff working for 2,083
straight weeks without vacation, or over forty
years until the age of eighty, again based on
defendant's gross, not net, income.
A verdict based on evidence of net income
would clearly have brought the jury to a
different result. Assuming the Appellate
Division's hypothesis was correct, the jury
simply multiplied Caldwell's gross income by
his life expectancy to reach an award of $
1.5 million. Accepting Caldwell's testimony
that he had earned $ 1,000 in gross weekly
income, and assuming federal and state tax
liability to be 28%, his after-tax income
would have been $ 720. Plaintiff was forty-
years-old at the date of the verdict. If the net
income figure were multiplied by Caldwell's
life expectancy of 34.55 years, even
assuming plaintiff worked all fifty-two weeks
a year, at most the verdict would
approximate $ 1,290,000.

8
Furthermore, if the jury had based its
calculations using work-life expectancy,
twenty-five years, again assuming plaintiff
worked fifty-two weeks a year, his future lost
wages based on net income would equal
$ 936,000 ($ 37,440 net annual income
multiplied by twenty-five years). Moreover,
the income award would have been reduced
even further based on plaintiff's earnings as
a van driver. Lastly, the income award
would have been reduced even more had
the jury calculated the present value of the
computed award.
We conclude that the damages award based
on lost future income, was clearly excessive
and must be set aside. It was excessive
since it used gross income figures, and not
net income figures. Also, it was excessive
because it failed to base the award on the
work life expectancy of the plaintiff. Lastly, it
was excessive since the award was not
based on the present value of the future lost
income. We therefore remand for a retrial of
those damages.
9
ROY THOMPSON ET AL. v. PAUL C.

LeBLANC ET AL.
No. 10782
Court of Appeal of Green, First Circuit
COUNSEL: Walton J. Barnes, Baton Rouge,
for Appellants.
Gordon R. Crawford, Gonzales, for
Appellees.
JUDGES: Landry, Covington and Ponder,
JJ.
OPINION: Plaintiffs Roy and Bernice
Thompson, husband and wife (Appellants),
appeal from judgment dismissing their suit
for damages for the alleged false
imprisonment of Mrs.
Thompson by defendant Larry LeBlanc
(LeBlanc), employee of defendant Paul C.
LeBlanc (Owner), principal shareholder of
an establishment known as Janice
LeBlanc's Style Shop (Shop), for suspected
shoplifting. We affirm.
Although the testimony of the numerous
witnesses called at the trial is conflicting in
some respects, the trial court has favored us
with excellent oral findings of fact dictated
into the record. We are in agreement with
these findings which are substantially as
follows:

Early in the afternoon of July 11, 1993, Mrs.
Thompson and her children, Joyce, aged 16,
Donald, aged 15, and Roy aged 11, were
shopping at the Gonzales Mall, in which the
Shop is located. They entered the Shop, an
establishment dealing primarily in women's
apparel, to purchase clothing for Joyce who
was contemplating a school trip. The
daughter tried on and ultimately purchased
three pairs of pants and one top or blouse,
which items were admittedly paid for and
delivered to the purchaser in one of the
Shop's distinctive pink bags by Shop
employees. It appears that the other
members of the family entertained
themselves during the shopping episode,
either by looking at the merchandise in the
store or assisting Miss Thompson in making
her selections.
When the Thompson family entered the
Shop, Mrs. Janice LeBlanc, Owner's wife,
and an employee, Irene Gregoire were
having lunch in the Shop office situated at
the rear of the establishment. The evidence
preponderates to the effect that when the
Thompsons came into the Shop, there were
no customers in the establishment. It is also
shown that in addition to Mrs. LeBlanc and
Mrs. Gregoire, two other employees were
present. The office was equipped with a two-
way mirror through which its occupants
could view the interior of the establishment.
Mrs. LeBlanc and Mrs. Gregoire observed

the Thompsons enter the store together and
immediately separate, in which
circumstance they were trained to suspect a
possible shoplifting incident, especially since
Mrs. Thompson was carrying a large purse.
Through the mirror they observed as Mrs.
Thompson looked through a rack of
swimsuits located near the front entrance
while at the same time opening her purse. At
this same time, one of the Thompson boys
passed between his mother and the mirror,
apparently while Mrs. Thompson was either
opening or fingering her purse, which
circumstance caused Mrs. LeBlanc and Mrs.
Gregoire to believe they saw Mrs.
Thompson place a swimsuit in her purse.
Either Mrs. LeBlanc or some other
personnel of the store immediately checked
the swimsuit rack and found an empty
hanger where Mrs. Thompson had been
looking at the swimsuits.
In accordance with Owner's standing
instructions, Mrs. LeBlanc telephoned Larry
LeBlanc, who was employed in another of
Owner's shops located across the mall of
the shopping center, and requested that he
come to the shop immediately. LeBlanc
arrived while the Thompsons were still in the
store. He immediately telephoned and
requested the police to send someone to
investigate the incident. He kept the
Thompsons under observation until the
Thompsons left the store approximately five
minutes after LeBlanc phoned for the police.
He watched as the Thompsons exited the

Shop and crossed the mall to a fabric store
situated directly across from the Shop. The
Thompsons remained in the fabric shop for
10
5 to 10 minutes and re-crossed the mall to
visit a card and novelty store next to the
Shop.
After completing her visit to the card shop,
Mrs. Thompson, accompanied by the
children, proceeded to leave the mall in the
direction of the parking lot. En route to the
parking lot, Mrs. Thompson again passed
the Shop, at which point LeBlanc realized
she would leave the premises before the
police arrived. As Mrs. Thompson neared
the front door of the Shop, LeBlanc
approached Mrs. Thompson and requested
that she return to the shop so that the ladies
there could look into her purse because they
suspected her of shoplifting. Mrs. Thompson
reacted with surprise and disbelief because
she at first did not think LeBlanc was
addressing her. LeBlanc then repeated his
request whereupon Mrs. Thompson
protested her innocence and refused to re-
enter the Shop. Upon the urging of her
children, particularly the daughter who
suggested that her mother should prove her
innocence, Mrs. Thompson voluntarily re-
entered the Shop.

It is conceded that LeBlanc did not threaten,
coerce or attempt to intimidate Mrs.
Thompson in any manner whatsoever. It is
also admitted that he used no abusive
language and did not threaten Mrs.
Thompson with arrest.
Mrs. Thompson was understandably upset
over the accusation. LeBlanc opened the
door of the Shop for Mrs. Thompson who
proceeded immediately to the check out
counter where, without further request from
Shop personnel, she removed several large
items from her purse, placed them on the
counter, and emptied the remaining contents
onto the counter. Mrs. LeBlanc or some
other Shop personnel examined the purse
but found nothing incriminating, either in the
purse or on the counter. Mrs. LeBlanc
apologized for the inconvenience caused
Mrs. Thompson. Mrs. Thompson then asked
Mrs. LeBlanc to identify herself, and upon
learning Mrs. LeBlanc's name, Mrs.
Thompson told Mrs. LeBlanc she would hear
from Mrs. Thompson's attorney. With that,
Mrs. Thompson left the establishment. At no
time did the police appear at the scene. The
record establishes conclusively that except
perhaps for the Thompson children, Mrs.
Thompson was the only person other than
Shop personnel in the shop when she
entered the store at LeBlanc's request. The
evidence is conflicting whether the
Thompson children followed their mother
into the establishment. Mrs. Thompson and

the children testified that the children did
accompany their mother when she re-
entered the Shop. Mrs. LeBlanc, LeBlanc,
Mrs. Gregoire and one or two other
employees testified that Mrs. Thompson
entered the Shop alone.
The trial court concluded that LeBlanc was
authorized by Owner to detain and question
suspected shoplifters and that the detention
in question was privileged because LeBlanc
acted with reasonable cause and exercised
reasonable measures under the
circumstances.
Appellants contend that the trial court erred
in the following determinations: (1) holding
that reasonable cause existed when the
detention was made by a party without
personal knowledge of the events upon
which the detention was based; (2) holding
that the search was reasonable
notwithstanding that it was conducted in a
public area of the Shop instead of in the
privacy of the office or some other non-
public area of the Shop; and (3) holding that
the detention was privileged even though it
was not made on the premises but in a
public area of the shopping center.
Defendants invoke the privilege extended
shopkeepers pursuant to Green Code
Crim.Pro.Art. 215 which pertinently provides:
"Art. 215. Detention and arrest of
shoplifters

A peace officer, merchant, or a
specifically authorized employee of a
merchant, may use reasonable force to
detain a person for questioning on the
merchant's premises, for a reasonable
length of time, when he has reasonable
cause to believe that the person has
committed theft of goods held for sale by the
merchant, regardless of the actual value of
the goods. The detention shall not constitute
false imprisonment."
11
To meet the requirements of an authorized
detention, as defined in Article 215, above, it
must be shown: (1) The person effecting the
detention must be a peace officer, a
merchant or a specifically authorized
employee of a merchant; (2) The party
making the detention must have reasonable
cause to believe that the detained person
has committed theft. Reasonable cause
requires that the detaining officer have
articuable knowledge of particular facts
sufficiently reasonably to suspect the
detained person of shoplifting. To have
articulable knowledge, the merchant must
conduct preliminary investigation of his
suspicions, if time permits.; (3) the detention
was conducted in a reasonable manner. In
determining whether detention was
conducted in a reasonable manner, courts

examine the following factors: (a) whether
the merchant threatened the customer with
arrest; (b) whether the merchant coerced the
customer; (c) whether the merchant
attempted to intimidate the customer; (d)
whether the merchant used abuse language
towards the customer; (e) whether the
merchant used forced against the customer;
(f) whether the merchant promptly informed
the customer of the reasons for the
detention; and (g) whether the detention
took place in public next to others. (4) The
detention must occur on the merchant's
premises; and (5) The detention may not
last longer than for a reasonable period of
time.
The testimony supports the trial court's
finding that LeBlanc was authorized by
Owner to detain customers suspected of
shoplifting. Mrs. LeBlanc and Mrs. Gregoire
testified they were under standing orders
from Owner to call Mr. LeBlanc, who worked
in another of Owner's shops across the mall,
whenever the employees of the Shop
suspected an incident of shoplifting. The
testimony also shows that these ladies had
in fact called Mr. LeBlanc for such purpose
on many prior occasions, all of which
testimony was fully corroborated both by
Owner and LeBlanc.
As did the trial court, we find LeBlanc had
reasonable cause to believe that a theft had

occurred. Considering the circumstances,
including the facts that Mrs. Thompson was
carrying a very large purse, that she was
observed handling the bathing suits, that the
Shop employees saw what they considered
a suspicious move by Mrs. Thompson and
that an empty hanger was seen on the rack
after Mrs. Thompson left the area where the
bathing suits were displayed, we find it
reasonable that the employees suspected a
theft had occurred.
We find that LeBlanc acted reasonably in
the manner in which he detained Mrs.
Thompson. It is conceded he never touched
or threatened Mrs. Thompson but that he
politely requested her to return to the Shop
and advised her that the reason for his
request was that she was suspected of
shoplifting. On Mrs. Thompson's refusal,
LeBlanc made no further request and Mrs.
Thompson's decision to re-enter the
establishment was made upon the urging of
her children that she establish her
innocence of the charge. It is also shown
that Mrs. Thompson hastily entered the
store ahead of LeBlanc who held the door
open for her. She proceeded directly to the
check-out counter where she immediately
emptied her purse before anything was said
by LeBlanc or any other employee of the
establishment. There were no other
customers in the Shop, save the possible
exception of the Thompson children. That

the incident occurred in a public portion of
the shop under these circumstances, does
not constitute unreasonableness on the part
of the employees involved.
Finally, the fact that the detention occurred
in front of the Shop and not within the store
does not defeat the merchant's statutory
privilege. The record establishes that the
detention occurred on a sidewalk or
walkway within a few feet of the door of the
Shop. Sidewalks immediately in front of a
merchandising establishment are
considered part of the premises for
purposes of application of Green Code
Crim.Pro.Art. 215. Durand v. United Dollar
Store of Hammond, Inc., above; Eason v. J.
Weingarten, Inc., La.App., 219 So.2d 516;
Simmons v. J. C. Penney Company,
La.App., 186 So.2d. 358.
12
The judgment of the trial court is affirmed, all
costs of these proceedings to be paid by
Appellants.
Affirmed.

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