124 Misc. 2d 658 | N.Y. City Civ. Ct. | 1984
OPINION OF THE COURT
The New York State Legislature in 1960 enacted sections 217 and 218 of the General Business Law, clearly “special-interest” protective legislation for retail mercantile establishments where “goods, wares or merchandise are offered to the public for sale” (L 1960, ch 1005, eff June 1,1960). It provided that in any action for false arrest, false imprisonment, unlawful detention, defamation of character, assault, trespass or invasion of civil rights, an authorized agent of the store may detain a person to question the ownership of merchandise as long as the detention is done in a reasonable manner and for a reasonable time and the agency had reasonable grounds to believe that the person detained was committing or attempting to commit larceny on the premises. This protective shield, unique because of its grant to only a segment of our commercial community, i.e., retail mercantile establishments, was designed to stem an acknowledged tide of “shoplifting”; it has also led to
Helen Keefe, a 65-year-old diminutive, snow-capped, gentle woman with a background that included three years in a religious order, piano teaching and studies at the New York Art Students League, had been coming to Gimbel’s main store from her New Jersey residence for more than 30 years. She had also been attending the adjacent St. Francis of Assisi Church for approximately the same length of time except for a period when she was hospitalized for a splenectomy after a serious auto mishap.
On January 9, 1981, she responded to an advertisement by defendant offering men’s outerwear, and after buying a hat for herself, she went to the store’s popular lower level. She purchased a corduroy jacket and a down coat for her husband. Payment was made by check and each garment was separately packaged. The receipt was handed to her but not stapled by the store’s employee to the outside of either coat box in contravention of the alleged store policy. When she attempted to leave the store, she testified that red lights began to flash and a “bell like a fire engine” went off, that a red-jacketed man “grabbed her by the arm” that another “tore the boxes out of her hand” and loudly commanded she accompany them; that the boxes were thrown to the floor; that a large crowd gathered, some of whom she
The trial herein extended over a period of several days. At the conclusion of the testimony and summations the court determined, as a matter of law, that defendant was negligent and so advised the jury, predicated upon the admissions by the chief of security and other witnesses, and the summation of defendant’s counsel. The jury thereafter awarded plaintiff $100,000 in compensatory damages for
The jury was charged that if they found defendant’s acts went beyond ordinary negligence, were so wanton and reckless as to constitute extreme or gross negligence, they might, but were not required, to allow plaintiff exemplary or punitive in addition to compensatory damages. (It was clearly explained to them that if any amount was so awarded by them in the exercise of their sound judgment and discretion it would be to punish the defendant and deter others from similar acts.) Their verdict was $500,000 exemplary damages. Defendant moves herein, pursuant to CPLR 4404 (subd [a]) to set aside the jury’s verdict as to both sums.
The jury also determined there was no assault or battery or wrongful detention. The plaintiff cross' moves herein to set aside that part of the verdict.
At the conclusion of the entire trial, this court stated that the amount of the verdict was excessive and urged parties and counsel to meet and negotiate a mutually acceptable reduced settlement. When their efforts were unsuccessful the court held several postverdict conferences. The plaintiff was both reasonable and realistic citing her age, state of health and the trauma of the trial as motivation for accepting the court’s recommendation of a settlement at a substantially reduced sum from the jury’s verdict of $600,000. The defendant and its carrier remained adamant at $40,000, however (admitting they would prefer to disburse considerable funds for an appeal than give the cost thereof to the plaintiff to resolve the matter).
This court has carefully reviewed many, many cases in which verdicts were declared to be excessive and the pronouncements by several courts that the verdict in a case would be set aside unless the plaintiff agreed to a reduction to a more reasonable sum. The court could find no cases, however, where, as here, the plaintiff acceded to the court’s suggestion of a substantial reduction but the defendant, while admitting its culpability, remained inflexible and intransigent. To set aside the verdict, in toto, under those circumstances and compel this plaintiff to expend further
The court denies the defendant’s motion to set aside the jury’s verdict of compensatory damages in the sum of $100,000. There was nothing unconscionable or unfair in light of plaintiff’s uncontradicted testimony of headaches, sleeplessness, incontinence, mental suffering including depression, anxiety, ridicule, embarrassment, and restricted physical, occupational and social activities, etc. Plaintiff had had a serious auto accident sometime prior to the within incident necessitating the removal of her spleen and had been under continuous treatment at a hospital as an outpatient since that time. Her earlier physical problems were exacerbated by the within occurrence. Defendant must “take the plaintiff as he finds her.” In view of all of the foregoing, the compensatory damages were commensurate with the injury done (Varriale v Saratoga Harness Racing, 76 AD2d 991; 7A Warren, NY Negligence [3d ed], pp 13-21).
Clearly the jury found and decided that the admitted negligence of defendant was misconduct which transgressed mere ordinary negligence and constituted a reckless, willful and wanton disregard of both the rights of the plaintiff, to whom it happened twice within a space of an hour, and the public to whom a mistaken “stop” occurs 20 times a day. The defendant was and is duty bound to take appropriate measures to stop the mishandling of customers who unwarily come onto defendant’s premises expecting a pleasant shopping trip but who experience something quite traumatic at least 100 times a week.
When one who operates a retail premises opens his doors to consumers and invites them in to inspect his wares and spend their funds, he has a duty to provide, at the very
The jury herein made a “statement.” By their verdict and the size thereof they issued a warning to the mammoth chains whose wealth they were entitled to consider that they deemed it an affront to invite this plaintiff in and then inflict such oppressive conduct upon her by the reckless and admittedly negligent conduct of employees who were “too busy.” The court construes their verdict as one designed to prevent similar injurious impact to other consumers at large and as a deterrent to defendant and other stores who daily engage in the same offensive conduct resulting from a system they have authorized, initiated, adopted and installed for their benefit without regard for the innocent who are negligently brought into the net they have woven (Brink’s, Inc. v City of New York, 546 F Supp 403; Reynolds v Pegler, 123 F Supp 36, 39, affd 223 F2d 429, cert den 350 US 846; Garrity v Lyle Stuart, Inc., 40 NY2d 354). While it might be said by some that the
There is no yardstick in measuring what amount will deter repetition of grossly negligent acts and lack of supervision as in the instant case. Cases speak of an award being excessive that “shocks the conscience” of the court — or an award that results from “passion [or] prejudice” (Juiditta v Bethlehem Steel Corp., 75 AD2d 126, 138; Petosa v City of New York, 63 AD2d 1016, 1017). This court believes that the criteria should be what amount will “smart” or “pinch”
As Mr. Justice Kassal, formerly of this court, once said: “Regarding the amount of such punitive damages the jury has determined what it feels will set an example and establish guidelines to avoid recurrence. The jury, as such, represents the voice of the community and it is not the province of the Trial Judge to substitute his judgment for the jury’s unless it is so excessive as to shock the conscience of the court” (Da Costa v Technico Constr. Corp., 74 Misc 2d 583, 585):
The court determines that punitive damages in the sum of $75,000 will serve as a sufficient deterrent to prevent repetition by the within defendant and others similarly situated, and will encourage better training and supervision of employees and the hiring of more employees, if necessary, to accord innocent shoppers the care and courtesy they are entitled to. It may also motivate the introduction of a better system that will not entrap the innocent consumer.
Accordingly, the motion to set aside the verdict of $600,000 herein is granted unless plaintiff files a written stipulation agreeing to the reduction of the verdict herein to the total sum of $175,000 (representing compensatory damages of $100,000 and punitive damages of $75,000) within 15 days from the filing of this decision, in which event a judgment for the reduced amount may be entered by the plaintiff. Should the defendant thereafter decide to pursue an appeal from this decision and the aforesaid reduced sum, the court also determines that the plaintiff’s cross motion re causes of action for assault, battery and