456 S.W.3d 829
Mo.2015Background
- Barkley was detained for ~46 minutes at Price Chopper after loss-prevention employees observed unpurchased items in a reusable bag she carried; employees confiscated the bag, escorted her to a security office, searched her purse, photographed items, and called police.
- While being processed, Barkley stood and approached employees, refused commands to stay seated, resisted handcuffing, ran for the office door (hands cuffed in front), was tackled/knocked down, had handcuffs moved behind her during the struggle, then moved to front and assisted to the bench; police arrived and arrested her; she was later acquitted of shoplifting.
- Barkley sued Price Chopper for multiple torts but submitted only false imprisonment and battery to the jury; Price Chopper asserted the merchant’s privilege and statutory defense (Mo. Rev. Stat. §537.125).
- Jury found for Price Chopper on both battery and false-imprisonment claims; Barkley appealed challenging jury instructions and certain evidentiary rulings; trial court denied new trial and judgment was affirmed by the court.
- Central legal question: scope of the merchant’s privilege under common law and §537.125 — whether it extends to battery and survives after recovery of merchandise, and whether the trial instructions properly presented the defense.
Issues
| Issue | Barkley’s Argument | Price Chopper’s Argument | Held |
|---|---|---|---|
| Whether merchant’s privilege applies to battery claims | Merchant’s privilege does not extend to battery; privilege ends once merchandise recovered | Privilege covers detention by reasonable means for reasonable time including reasonable force, and continues to allow investigation and summoning police after recovery | Court: Privilege protects merchant from all civil/criminal liability (including battery) if detention and force are reasonable and for reasonable time; privilege can extend after recovery to investigate and await police |
| Whether Instruction No. 9 (battery) required omission of affirmative-defense “tail” | Instruction 9 (MAI 23.02) should be given without reference to defendant’s affirmative defense | MAI 23.02 requires adding language when an affirmative defense is submitted; tail properly added | Court: Tail was proper under MAI; no error in giving Instruction 9 with reference to Instruction 10 |
| Whether Instruction No. 10 (defense) was an improper or unsupported submission of facts | Instruction 10 hypothesized defenses not supported by evidence or misstated law; privilege ends on recovery so no defense to battery | Instruction presented merchant’s privilege as an affirmative defense (modified MAI 32.10) and focused jury on reasonableness of force used to prevent flight | Court: Objections to the specific wording were not preserved; Court declines to consider new instruction-drafting claims; even if flawed, Instruction 10 focused jury on central question (reasonableness) and verdict stands |
| Evidentiary rulings (physician letters; excluded personnel/court records) | Admission of doctor letters was prejudicial and irrelevant; excluded records were relevant to punitive damages | Letters were relevant to physical condition pre- and post-incident; excluded records concerned punitive damages but jury did not reach that issue | Court: Trial court did not abuse discretion admitting letters; exclusion of punitive-damage evidence harmless because jury never reached punitive-damages question |
Key Cases Cited
- Pandjiris v. Hartman, 94 S.W. 270 (Mo. 1906) (early rule limiting merchant’s defense to cases where suspect was in fact guilty)
- Teel v. May Dep’t Stores Co., 155 S.W.2d 74 (Mo. 1941) (abrogated Pandjiris; probable cause is defense if detention is reasonable; unreasonable delay after recovery can constitute false imprisonment)
- Edgerton v. Morrison, 280 S.W.3d 62 (Mo. 2009) (permitting addition of language referencing affirmative defense to MAI verdict director without misleading jury)
- Jacques v. Sears, Roebuck & Co., 285 N.E.2d 871 (N.Y. 1972) (statute-like merchant privilege includes detention to summon police after recovery)
- Commonwealth v. Rogers, 945 N.E.2d 295 (Mass. 2011) (merchant privilege encompasses use of reasonable force; privilege would be meaningless otherwise)