GA Code § 51-7-60 (2021)
2021 Georgia Code|Title 51 - Torts|Chapter 7 - False Arrest, False Imprisonment, Malicious Prosecution, and Abusive Litigation|Article 4 - Detention or Arrest on Suspicion of Shoplifting, Theft, or Film Piracy|§ 51-7-60. Preclusion of Recovery for Detention of Person Suspected of Theft Under Certain Circumstances

 Whenever the owner or operator of a retail establishment as defined in Code Section 16-7-2 or a food service establishment as defined in Code Section 26-2-370 or any agent or employee thereof detains or causes to be detained any person pursuant to Code Section 17-4-80 and any person who detains or causes to be detained a person while acting pursuant to Article 2 of Chapter 3 of Title 16 wherein the person so detained brings an action for false arrest or false imprisonment against such owner, operator, agent, employee, or person, no recovery shall be had by the plaintiff in such action when it is established by competent evidence:    That the plaintiff had so conducted himself or herself or behaved in such manner as to cause a person of reasonable prudence to believe that the plaintiff, at or immediately prior to the time of the detention, was committing an:   Offense authorized for detention pursuant to Code Section 17-4-80; or   Act which caused a detention which was justified as provided in Article 2 of Chapter 3 of Title 16; and     That the manner of the detention and the length of time during which such plaintiff was detained was under all the circumstances reasonable.    (Ga. L. 1958, p. 693, § 1; Ga. L. 2014, p. 404, § 2-4/SB 382; Ga. L. 2021, p. 625, § 7/HB 479.)    The 2021 amendment,  effective May 10, 2021, substituted the present provisions of the introductory paragraph for the former provisions, which read: "Whenever the owner or operator of a mercantile establishment or any agent or employee of the owner or operator detains, arrests, or causes to be detained or arrested any person reasonably thought to be engaged in shoplifting or refund fraud and, as a result of the detention or arrest, the person so detained or arrested brings an action for false arrest or false imprisonment against the owner, operator, agent, or employee, no recovery shall be had by the plaintiff in such action where it is established by competent evidence:", substituted the present provisions of paragraph (1) for the former provisions, which read: "That the plaintiff had so conducted himself or herself or behaved in such manner as to cause a person of reasonable prudence to believe that the plaintiff, at or immediately prior to the time of the detention or arrest, was committing the offense of shoplifting, as defined by Code Section 16-8-14, or refund fraud as defined in Code Section 16-8-14; or", and deleted "or arrest" following "detention" in paragraph (2). See Editor's note for applicability.   Cross references.   - Shoplifting, § 16-8-14.   Editor's notes.   - Ga. L. 2014, p. 404, § 3-1/SB 382, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2014, and shall apply to all conduct occurring on or after such date."   Ga. L. 2021, p. 625, § 8/HB479, not codified by the General Assembly, provides, in part, that: "This Act shall not apply to rights and duties that matured, penalties that were incurred, or proceedings that were begun before the effective date of this Act." This Act became effective May 10, 2021.   Law reviews.   - For article surveying torts law, see 34 Mercer L. Rev. 271 (1982). For annual survey on law of torts, see 42 Mercer L. Rev. 431 (1990). For note, "Publicly Funded Private Security: A Critical Examination of Georgia Law Pertaining to the Private Employment of Off-Duty Police Officers," see 51 Ga. L. Rev. 879 (2017).   JUDICIAL DECISIONS   Legislative intent.    - The General Assembly has declared it the public policy of this state that there should be no recovery in an action for false arrest or false imprisonment arising out of the detention or arrest of one who the owner or operator (or their agents or employees) might, by reason of the owner's or operator's conduct or behavior, have had reasonable cause to believe was shoplifting. Turner v. Bogle, 115 Ga. App. 710, 155 S.E.2d 667 (1967).    The policy of this state that there can be no recovery in an action for false arrest or false imprisonment arising out of the detention, with reasonable cause, of one suspected of shoplifting was applicable in a malicious prosecution action for an alleged shoplifting. Turner v. Bogle, 115 Ga. App. 710, 155 S.E.2d 667 (1967).    The General Assembly provides a reasonable course of conduct under O.C.G.A. § 51-7-60 which a merchant may follow in affording protection to the merchant's displayed merchandise without incurring an unreasonable exposure to tort liability in doing so. Swift v. S.S. Kresge Co., 159 Ga. App. 571, 284 S.E.2d 74 (1981).    It was the intention of the legislature that the provisions now codified as paragraphs (1) and (2) be read in the conjunctive, notwithstanding the use of the disjunctive in O.C.G.A. § 51-7-60 because the code revision committee's substitution of the word "or" for "or provided" between the paragraphs tends to give the statute a potentially irrational effect. K Mart Corp. v. Adamson, 192 Ga. App. 884, 386 S.E.2d 680 (1989).   Applicability of section.    - O.C.G.A. § 51-7-60 did not apply when the appellants were not suspected of shoplifting but rather of passing counterfeit currency. Taylor v. Super Disct. Mkt., Inc., 212 Ga. App. 155, 441 S.E.2d 433 (1994).   Strict construction.    - O.C.G.A. § 51-7-60 makes no reference to the detention of people for reasons other than suspected shoplifting, and being in derogation of common law, it must be strictly construed. Hampton v. Norred & Assocs., 216 Ga. App. 367, 454 S.E.2d 222 (1995).   Tortious misconduct claim not necessarily barred by section.    - O.C.G.A. § 51-7-60 insulates a merchant and the merchant's agents from liability for words spoken in the course of an arrest or detention only if there was a basis for a reasonable belief that a person was shoplifting: the provision did not necessarily bar a claim of tortious misconduct. Simmons v. Kroger Co., 218 Ga. App. 721, 463 S.E.2d 159 (1995), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7 (2008).    Merchant and agents are protected against liability if their conduct springs from a reasonable belief that the party detained or arrested was engaged in shoplifting in merchant's store. Swift v. S.S. Kresge Co., 159 Ga. App. 571, 284 S.E.2d 74 (1981).    No liability can be affixed for the making of statements or assertions by a merchant or the merchant's agents under the theory of tortious misconduct if there was basis for a reasonable belief that the detainee was in fact engaged in shoplifting in the store. Swift v. S.S. Kresge Co., 159 Ga. App. 571, 284 S.E.2d 74 (1981).   Question whether detention and manner of detention by retailer were reasonable.    - Retailer was not entitled to summary judgment with regard to a customer's false imprisonment claim because there were questions of fact as to whether the belief that the customer had shoplifted was reasonable and whether the manner of detention was reasonable. Carnegay v. WalMart Stores, Inc., 353 Ga. App. 656, 839 S.E.2d 176 (2020).   Manner of detention.   - When the plaintiff put forth sufficient evidence to challenge the reasonableness of the manner of the plaintiff's detention, i.e., that the plaintiff was subjected to "gratuitous and unnecessary indignities," and inasmuch as the reasonableness of the length of detention is impacted by the manner of detention, there was an issue of fact as to the reasonableness of the length of the plaintiff's detention sufficient to deny the defendant's motion for summary judgment. Jackson v. KMart Corp., 851 F. Supp. 469 (M.D. Ga. 1994).   "Reasonableness" of detention not demonstrated by compliance with private guidelines.    - Compliance with one's own private guidelines governing the detention of suspected shoplifters would not demonstrate that the arrest or detention was "reasonable," nor would the failure to adhere to such guidelines demonstrate "unreasonableness" in and of itself. Luckie v. Piggly-Wiggly Southern, Inc., 173 Ga. App. 177, 325 S.E.2d 844 (1984).    Employee's failure to adhere to private guidelines did not necessarily demonstrate unreasonableness in the detention of a suspected shoplifter. Grand Union Co. v. Miller, 232 Ga. App. 857, 503 S.E.2d 49 (1998), aff'd in part and rev'd in part, 270 Ga. 537, 512 S.E.2d 887 (1999).    Momentary pause in progress of patron through a check out line was not too inconsequential to constitute "detention" or "imprisonment" for purposes of the patron's false imprisonment claim. Williams v. Food Lion, Inc., 213 Ga. App. 865, 446 S.E.2d 221 (1994).   Evidence of shoplifting.    - When the plaintiff carried a tape measure the same size, shape and color of a roll of price tags used by shoplifters to alter prices on goods, the jury would have been authorized to find that the plaintiff's conduct was such as to excite a reasonably prudent man having knowledge of pricing tags and their use by shoplifters. S.S. Kresge Co. v. Carty, 120 Ga. App. 170, 169 S.E.2d 735 (1969).   When the indictment of the plaintiff by the grand jury on charges of theft by deception was based on the very same facts giving rise to the plaintiff's detention by the defendant, there was a presumption that the plaintiff acted in a manner such that a reasonable person would have believed the plaintiff was shoplifting. Jackson v. KMart Corp., 851 F. Supp. 469 (M.D. Ga. 1994).    Magistrate's finding of probable cause was sufficient to justify the defendant store's belief that the plaintiff was shoplifting and, further, the plaintiff's entry into a pretrial diversion program and acceptance of community service penalties established that the plaintiff was not one "who is in fact innocent of any such misconduct." Gerry v. K-Mart, 222 Ga. App. 364, 474 S.E.2d 260 (1996).    Determination of whether defendant acted with reasonable prudence or whether manner and length of detention were reasonable were matters for jury, not the court, to determine. United States Shoe Corp. v. Jones, 149 Ga. App. 595, 255 S.E.2d 73 (1979); Crowe v. J.C. Penney, Inc., 177 Ga. App. 586, 340 S.E.2d 192 (1986); Bi-Lo, Inc. v. McConnell, 199 Ga. App. 154, 404 S.E.2d 327 (1991).    When the manager admitted that the manager made no attempt to verify the plaintiff's explanation of the plaintiff's actions, the jury was justified in its determination that the supermarket's manager acted unreasonably by allowing the plaintiff to remain handcuffed and immobilized in the back room of the store and by initiating prosecution of the shoplifting charge for which the plaintiff was never convicted. Colonial Stores, Inc. v. Fishel, 160 Ga. App. 739, 288 S.E.2d 21 (1981).    Unsolicited statements made by two of the plaintiff's co-workers, reporting that the plaintiff was periodically purloining store goods, furnished probable cause for the defendant store owner to investigate and reasonably detain the plaintiff for the purpose of questioning the plaintiff about possible theft. Crowe v. J.C. Penney, Inc., 177 Ga. App. 586, 340 S.E.2d 192 (1986).    Determination of whether defendant through its agents acted with reasonable prudence is for jury, and will not be controlled by this court. Gibson's Prods., Inc. v. Edwards, 146 Ga. App. 678, 247 S.E.2d 183 (1978).   Reasonable cause to believe customer had not paid.    - Food store manager had cause as a reasonably prudent person to believe that the customer had not paid for the Brunswick stew, since the customer had gone twice to the deli in the space of a few minutes, the customer had made three shopping forays in approximately twenty minutes, and neither the deli clerk nor the manager saw the customer check out the first two times. Brown v. Winn-Dixie Atlanta, Inc., 194 Ga. App. 130, 389 S.E.2d 530 (1989).   Store patron's voluntary surrender of freedom.    - Grocery store was not liable for false imprisonment when a patron by the patron's own free choice surrendered the patron's freedom of motion by remaining in the checking aisle to clear oneself of suspicion. Williams v. Food Lion, Inc., 213 Ga. App. 865, 446 S.E.2d 221 (1994).   False imprisonment of child accused of shoplifting.    - Summary judgment was properly denied on a parent's false imprisonment claim under O.C.G.A. § 51-7-20 arising out of an accusation by store employees that the parent's nine-year-old child stole from the store because whether the child's detention was justified by the employees' reasonable belief that the child was shoplifting under O.C.G.A. § 51-7-60 was a jury question; the actions relied upon by the employees were, for the most part, not the result of the child's suspicious actions or behavior, and whether the employees acted with reasonable prudence was a matter for the jury to decide. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008).   Detention not shown.    - When the plaintiff was observed by several different store employees who characterized the plaintiff's behavior as "suspicious" and was later followed to a parking lot where the plaintiff was asked by an assistant store manager if the plaintiff had anything belonging to the store, there was no detention which could support the plaintiff's action for false imprisonment. Lord v. K-Mart Corp., 177 Ga. App. 651, 340 S.E.2d 225 (1986).    Since the plaintiff was not touched or physically detained but was merely asked a question, and the plaintiff's response to that question provoked no further action on the defendant's part, no detention occurred. Fields v. Kroger Co., 202 Ga. App. 475, 414 S.E.2d 703 (1992).   Summary judgment inappropriate.    - Summary judgment in favor of the merchant was inappropriate after the plaintiffs testified that a security employee detained the plaintiffs for an hour to an hour and a half and verbally and physically abused the plaintiffs, thereby raising a triable issue of fact. Brown v. Super Disc. Mkts., Inc., 223 Ga. App. 174, 477 S.E.2d 839 (1996).   Adjudication of guilt protects from liability.    - Adjudication of guilt of shoplifting entered by a juvenile court protected the defendant from liability for false imprisonment since the provision in O.C.G.A. § 51-7-60 that no recovery shall be had in an action for false arrest or false imprisonment when it is established by competent evidence: "(1) [T]hat the plaintiff, at or immediately prior to the time of the detention or arrest, was committing the offense of shoplifting," is merely a restatement of the probable cause standard. J.C. Penney Co. v. Miller, 182 Ga. App. 64, 354 S.E.2d 682 (1987).    Cited in Dixon v. S.S. Kresge, Inc., 119 Ga. App. 776, 169 S.E.2d 189 (1969); Godwin v. Gibson Prods. Co., 121 Ga. App. 59, 172 S.E.2d 467 (1970); Ross v. Rich's, Inc., 129 Ga. App. 716, 201 S.E.2d 159 (1973); Tomblin v. S.S. Kresge Co., 132 Ga. App. 212, 207 S.E.2d 693 (1974); Cash v. State, 136 Ga. App. 149, 221 S.E.2d 63 (1975); Miller v. Roses' Stores, Inc., 151 Ga. App. 158, 259 S.E.2d 162 (1979); Arnold v. Eckerd Drugs of Ga., Inc., 183 Ga. App. 211, 358 S.E.2d 632 (1987); Winn-Dixie Stores, Inc. v. Nichols, 205 Ga. App. 308, 422 S.E.2d 209 (1992); Mitchell v. Walmart Stores, Inc., 223 Ga. App. 328, 477 S.E.2d 631 (1996).   RESEARCH REFERENCES   Am. Jur. 2d.   - 52 Am. Jur. 2d, Malicious Prosecution, § 57.   ALR.   - Admissibility of defendant's rules or instructions for dealing with shoplifters, in action for false imprisonment or malicious prosecution, 31 A.L.R.3d 705.   Construction and effect, in false imprisonment action, of statute providing for detention of suspected shoplifters, 47 A.L.R.3d 998.   Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee, 93 A.L.R.3d 826.   Retailer's surveillance of fitting or dressing rooms as invasion of privacy, 38 A.L.R.4th 954.