1. Assault--civil--shopkeeper's privilege--instruction
The trial court correctly instructed the jury on the
applicability of N.C.G.S. § 14-72.1(c), the “shopkeeper's
privilege,” in an action for civil assault resulting from
plaintiff's attempt to leave a store after being accused of
shoplifting and the detention of plaintiff by force until the
police arrived. Although plaintiff contended that the privilege
created by the statute is not a defense to assault and battery,
the alleged assault and battery in this case cannot be separated
from the detention and the two torts must be treated as a whole.
2. Assault--civil--detention of shoplifter--shopkeeper's
privilege--burden of proof
In a civil assault action arising from the detention by
force of a suspected shoplifter, the trial court erred by
instructing the jury that plaintiff had the burden of proving
that defendants failed to act in a reasonable manner.
Reasonableness is an element of the affirmative defense provided
by N.C.G.S. § 14-72.1(c) and the courts have consistently placed
on defendants the burden of proving that an affirmative defense
exists to a claim of assault and battery. The portion of Hawkins
v. Hawkins, 101 N.C. App. 529, relied upon by defendants is
dictum.
Mast, Schulz, Mast, Mills & Stem, P.A., by David F. Mills, for
plaintiff-appellant.
Smith, Helms, Mulliss & Moore, L.L.P., by Matthew W. Sawchak,
Clayton D. Somers, and Wendy I. Sexton, for defendants-
appellees.
SMITH, Judge.
Plaintiff Aubrey Redding Jr. appeals from a jury trial
resulting in a verdict and entry of judgment thereon in favor ofdefendants Shelton's Harley Davidson, Inc. (Shelton's Harley) and
Shelton Davis (Davis). We order a new trial.
On 16 September 1997, plaintiff entered Shelton's Harley in
Goldsboro, North Carolina. A store employee, suspecting plaintiff
was stealing a vest, confronted plaintiff and then yelled out to
other employees to call the police. Plaintiff tried to leave the
store; however, John Martindale (Martindale), a store employee,
blocked plaintiff's exit and, along with Davis, the store owner,
attempted to detain him until the police arrived. Plaintiff
alleges he was injured when “all three men fell onto the asphalt
and concrete outside of the store.” According to plaintiff, Davis
and Martindale held plaintiff on the ground for “approximately 15
minutes while waiting for the police to arrive.”
Plaintiff filed suit against defendants 11 February 1998,
alleging a claim of assault and battery and seeking both
compensatory and punitive damages. Defendants answered 9 April
1998, generally denying plaintiff's allegations and asserting in
defense, inter alia, that Davis' actions against plaintiff were
privileged.
Trial began 17 March 1999. The jury returned a verdict
absolving defendants of liability, and the trial court entered
judgment in accordance with the verdict. Plaintiff subsequently
filed motions for new trial and for judgment notwithstanding theverdict, which motions were denied by the trial court. Plaintiff
timely appealed both the judgment and the orders denying his
motions.
[1]Plaintiff first argues the trial court should not have
“instructed the jury on the principle of the shopkeeper's
privilege.” Pursuant to N.C.G.S. § 14-72.1(c) (1999),
[a] merchant, or the merchant's agent or
employee, . . . who detains or causes the
arrest of any person shall not be held civilly
liable for detention, malicious prosecution,
false imprisonment, or false arrest of the
person detained or arrested, where such
detention . . . is in a reasonable manner for
a reasonable length of time, and, if in
detaining or in causing the arrest of such
person, the merchant, or the merchant's agentor employee, . . . had at the time of the
detention or arrest probable cause to believe
that the person committed the offense [of
concealment of merchandise].
Plaintiff argues that the privilege created by this statute is not
a defense to assault and battery, citing Burwell v. Giant Genie
Corp., 115 N.C. App. 680, 446 S.E.2d 126 (1994) as controlling
authority.
In Burwell, this Court examined whether G.S. § 14-72.1(c)
protected a police officer from liability for “conducting a 'pat
down' search of plaintiff before determining whether to arrest
plaintiff.” Id. at 685, 446 S.E.2d at 129. The plaintiff in that
case filed suit against the officer alleging assault and battery.
After noting that the statute specifically exempts merchants and
police officers from liability for “detention, malicious
prosecution, false imprisonment, [and] false arrest,” G.S. § 14-
72.1(c), we stated that
[a]ctions for assault and battery are
conspicuously omitted from the statute. We do
not read G.S. [§] 14-72.1(c) as giving police
officers or merchants the right to conduct
“pat down” searches of customers without their
consent.
Burwell, 115 N.C. App. at 685, 446 S.E.2d at 129.
The facts recited in Burwell indicate that plaintiff therein,
after paying for his groceries and while attempting to leave the
store, was accused of stealing cigarettes by the store manager.
Id. at 681-82, 446 S.E.2d at 127. The manager then “grabbed
plaintiff's arm and pulled plaintiff about two aisles down toward
the store office.” Id. at 682, 446 S.E.2d at 127. An off-dutypolice officer approached plaintiff, showed plaintiff his badge,
and, along with the store manager, conducted a “pat down” search of
plaintiff. Id. at 682, 684, 446 S.E.2d at 127, 128.
In Burwell, the plaintiff's assault and battery claim was
predicated upon the “pat down” search, which was a separate act
from the detention of the plaintiff. As the Burwell Court noted,
the assault and battery occurred “during [plaintiff's] detention.”
Id. at 686, 446 S.E.2d at 130 (emphasis added). The search was not
conducted in order to detain plaintiff, but was instead conducted
while plaintiff was detained. As the search was an assault and
battery not necessary to plaintiff's detention, defendants were not
entitled to the protection of G.S. § 14-72.1(c).
In the instant case, however, the alleged assault and battery
cannot be separated from plaintiff's detention. The plaintiff in
the case at bar attempted to leave the store once accused of
shoplifting, and was detained by force by Davis and Martindale.
The force used to detain plaintiff resulted in the three men
falling to the ground, at which point plaintiff was injured. Thus,
the alleged assault and battery in this case is the detention. See
Kmart Corp. v. Perdue, 708 So.2d 106, 110 (Ala. 1997) (in state
with nearly identical privilege statute, court held that where
merchant uses only force minimally necessary to ensure detention of
suspected shoplifter, statute protecting merchant against unlawful
detention claim must also shield merchant from assault and battery
claim). The two torts were not separate acts and must be treated
as a whole. G.S. § 14-72.1(c) protects merchants from civil actions for
detention if its terms are complied with. The issues presented by
this case are thus (1) whether defendants had probable cause to
believe plaintiff had concealed merchandise and (2) whether the
detention was “in a reasonable manner for a reasonable length of
time.” G.S. § 14-72.1(c). If probable cause was lacking or the
detention was not reasonable, G.S. § 14-72.1(c) would not apply and
defendants would be liable for assault and battery. Cf. Kmart, 708
So.2d at 110 (when there is no evidence merchant “used any more
force than was necessary to ensure that [plaintiffs] were
detained,” merchant entitled to directed verdict on assault and
battery claim); State v. Ataei-Kachuei, 68 N.C. App. 209, 213-14,
314 S.E.2d 751, 754 (indicating that firing three shots at victim,
one of which hit and killed victim, could be reasonable manner of
detaining victim), disc. review denied, 311 N.C. 763, 321 S.E.2d
146 (1984).
In sum, the trial court correctly instructed the jury on the
applicability of G.S. § 14-72.1(c). We thus overrule this
assignment of error.
[2]Plaintiff next alleges the trial court incorrectly placed
the burden of proof on him to show that defendants failed to act in
a reasonable manner to detain plaintiff. Plaintiff argues the
privilege created under G.S. § 14-72.1(c) should be regarded as an
affirmative defense upon which defendants have the burden of proof.
We agree.
Plaintiff objects to the following instruction given by thetrial court:
The first question is issue number one, did
the defendants fail to act in a reasonable
manner to detain the plaintiff at their store
on September 16, 1997. The plaintiff has the
burden of proof to prove to you that
defendants did fail to act in a reasonable
manner in detaining him. If he's satisfied
you by the greater weight of the evidence that
the defendant did fail to so act in a
reasonable manner, then you would answer that
issue yes . . . .
Defendants argue the instruction was correct as given, in that this
Court has stated that “lack of privilege” is one of the elements of
battery, see Hawkins v. Hawkins, 101 N.C. App. 529, 533, 400 S.E.2d
472, 475 (1991), aff'd, 331 N.C. 743, 417 S.E.2d 447 (1992), that
plaintiff must prove in order to prevail.
The issue before this Court in Hawkins was “whether the lack
of an award of at least nominal damages precludes an award of
punitive damages” in a case based on claims of assault and battery.
Hawkins, 101 N.C. App. at 532, 400 S.E.2d at 474. In the course of
discussing the punitive damages issue, we noted that
[t]he elements of battery are intent, harmful
or offensive contact, causation, and lack of
privilege.
Id. at 533, 400 S.E.2d at 475, citing 1 W. Haynes, North Carolina
Tort Law § 4-2 (1989) (hereinafter Haynes) for that proposition.
We first note that Hawkins merely listed the “elements” without
discussing which party had the burden of proof as to each.
In addition, neither party to that case disputed that
plaintiff therein had established his claim for battery; the sole
issue before the court was whether punitive damages were allowable. See Hawkins, 101 N.C. App. at 533, 400 S.E.2d at 475. Th
us, the
portion of our opinion setting forth the elements of battery “was
unnecessary to the court's holding and therefore dictum.” Donovan
v. Fiumara, 114 N.C. App. 524, 533, 442 S.E.2d 572, 578 (1994).
Cases that have since cited Hawkins' formulation of the elements of
battery as including “lack of privilege” have also done so in
dictum. See Holloway v. Wachovia Bank and Tr. Co., 109 N.C. App.
403, 415, 428 S.E.2d 453, 460 (1993) (court's decision based on
intent and lack of consent), rev'd in part, aff'd in part, 339 N.C.
338, 452 S.E.2d 233 (1994); Wilson v. Bellamy, 105 N.C. App. 446,
465, 414 S.E.2d 347, 357-58 (issue was whether plaintiff consented
to contact), disc. review denied, 331 N.C. 558, 418 S.E.2d 669
(1992).
Further, the treatise relied on by Hawkins for the proposition
that “lack of privilege” is an element of battery also notes that
“privilege” is a defense to battery, see Haynes at § 4-3, and that
“the essential elements of the tort [are] intent, a harmful or
offensive touching, and causation,” id. at § 4-6 (emphasis added).
This formulation of the “essential elements” of battery is
consistent with prior caselaw, see Dickens v. Puryear, 302 N.C.
437, 445, 276 S.E.2d 325, 330 (1981) (“[t]he interest protected by
the action for battery is freedom from intentional and unpermitted
contact with one's person”); Ormond v. Crampton, 16 N.C. App. 88,
94, 191 S.E.2d 405, 410 (“[a] battery is made out when the person
of the plaintiff is offensively touched against his will”), cert.
denied, 282 N.C. 304, 192 S.E.2d 194 (1972), and traditionalformulations of the elements of battery, see 6 Am. Jur. 2d Assault
& Battery § 3 (1999) (“[a] battery is a wrongful or offensive
physical contact with another through the intentional contact by
the tortfeasor and without the consent of the victim”).
Finally, Haynes notes that
[a]fter the plaintiff has introduced
sufficient evidence to support his cause of
action for battery, the burden of proof shifts
to the defendant to put forth such defenses as
are possible in mitigation or justification.
For example, the defendant could set forth the
defenses of provocation, privilege, [and]
self-defense . . . .
Haynes at § 4-7. Our courts have consistently placed the burden of
proof on defendants to prove an affirmative defense exists to a
plaintiff's claim of assault and battery. See Roberson v. Stokes,
181 N.C. 59, 64, 106 S.E. 151, 154 (1921) (where defendant admits
making the assault, burden is on him to prove justification for
such conduct); Young v. Warren, 95 N.C. App. 585, 588, 383 S.E.2d
381, 383 (1989) (self-defense and defense of family are affirmative
defenses to assault upon which defendant has the burden of proof);
see also W. Page Keeton et al., Prosser and Keeton on the Law of
Torts § 16 (5th ed. 1984) (it would be “manifestly unsound and
impractical to require a plaintiff to negative at the outset all
possible excuses or justifications”; thus, defendant must “plead
and prove” such justifications); 6 Am. Jur. 2d Assault & Battery §
165 (1999) (defendant has burden of proving justification).
“[O]n an affirmative defense, the burden of proof lies with
the defendant.” Price v. Conley, 21 N.C. App. 326, 328, 204 S.E.2d
178, 180 (1974). The privilege created by G.S. § 14-72.1(c) is anaffirmative defense, as it “rais[es] new facts and arguments th
at,
if true, will defeat the plaintiff's . . . claim, even if all
allegations in the complaint are true.” Black's Law Dictionary 430
(7th ed. 1999); compare Young, 95 N.C. App. at 588, 383 S.E.2d at
383 (defense which results in avoidance of liability is affirmative
defense), and Carlson v. State, 524 S.E.2d 283, 286 (Ga. Ct. App.
1999) (“[a]ffirmative defenses are those in which the defendant
admits doing the act charged but seeks to justify, excuse, or
mitigate his conduct”), with State v. Miller, 339 N.C. 663, 676,
455 S.E.2d 137, 144 (evidence regarding defendant's mental state at
time of crime, which may rebut State's proof of premeditation and
deliberation, is not affirmative defense for which defendant bears
burden of proof), cert. denied, Miller v. North Carolina, 516 U.S.
893, 133 L. Ed. 2d 169 (1995).
The trial court therefore erred in instructing the jury that
plaintiff had the burden of proof to establish that defendants
failed to act in a reasonable manner in detaining plaintiff, as
reasonableness is an element of the affirmative defense provided by
G.S. § 14-72.1(c). We thus vacate the judgment of the trial court
and remand this case for a new trial. In light of our disposition
herein, we decline to address plaintiff's remaining assignments of
error.
New trial.
Judges WALKER and TIMMONS-GOODSON concur.
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