Gustafson v. Payless

Infobox Court Case
name = Gustafson v. Payless Drug Stores
court = Oregon Supreme Court


date_filed = December 3 1973
date_decided = August 8 1974
full_name = Albertina Gustafson v. Payless Drug Stores NW, Inc.
citations = 269 Or. 354, 525 P.2d 118 (1974)
judges = Arno H. Denecke, Ralph M. Holman, Dean F. Bryson, Thomas Tongue, Edward H. Howell with Virgil Langtry and Herbert M. Schwab serving Pro Tempore; Chief Justice Kenneth J. O'Connell, William M. McAllister not involved in decision.
prior_actions =
subsequent_actions = none
opinions = Denecke: Affirmed lower court.
transcripts =

"Gustafson v. Payless Drug Stores" was a 1974 decision of the Oregon Supreme Court regarding an alleged case of shoplifting. The case deals mainly with the issues of malice and probable cause from a legal standpoint.

Facts

Mrs. Gustafson (plaintiff) was a California resident and US citizen who, along with her husband, was visiting relatives in Salem, Oregon. The plaintiff and her mother-in-law went shopping at the local Rite Aid (defendant). After purchasing a large swing set, the two individuals parted to make separate purchases. The plaintiff then had difficulty re-locating her mother-in-law, and set about searching for the woman.

Her search aroused the suspicions of Mrs. Yaw, the defendant’s security officer, who began to follow the plaintiff throughout the store. While searching for her relative, Mrs. Gustafson passed a counter containing cartons of cigarettes for sale, where she picked up a package in the manner of an ordinary shopper, and then proceeded with her search for the missing relative. Throughout the course of this search, the plaintiff kept the cigarettes in clear view, making no effort to conceal the merchandise.

She then located her mother-in-law, who had selected clothing for purchase. The relative paid for the clothing while Mrs. Gustafson attempted to purchase her cigarettes. The plaintiff was told she could not complete her purchase at this point, and was redirected to a separate checkout stand at the far end of the store. Mrs. Yaw witnessed these events and was fully knowledgeable of what had transpired.

While crossing to the other end of the store, an intense discussion erupted between the plaintiff and her mother-in-law regarding who owed money for the previously-purchased items. At this point, the plaintiff realized her husband was due to arrive in the parking lot to pick up the swing set. She left the store without passing any check out points. The plaintiff and her relative then waited for approximately five minutes in the parking lot, at which point her husband arrived with his pickup.

The swing set was loaded into the vehicle, and the plaintiff set her merchandise, including the non-purchased carton of cigarettes, in the bed of the truck in clear view of passers-by. It was then that Mrs. Yaw approached Mrs. Gustafson, stating that she had forgotten to purchase an item. The plaintiff claims she apologized profusely for her error, stating that she had been distracted while conversing with her mother and had forgotten to make the purchase.

Mrs. Yaw then suggested that the plaintiff re-enter the store and pay for the item. Upon doing so, however, Mrs. Yaw ordered that the plaintiff proceed upstairs, where she was subsequently arrested on the accusation of shoplifting. Mrs. Yaw proceeded to call the police, and an officer later arrived and took the plaintiff to the local station. The plaintiff filed suit against the defendant on the grounds that probable cause had not been established for her arrest. The jury ruled in favor of the plaintiff, and awarded $36,000 in damages, including $25,000 punitive. The defendant appealed.

Question

Was the lack of probable cause sufficient evidence of malice upon the part of the defendant to enable the jury to find for the plaintiff?

Holding

Yes (Affirmed).

Decision

In reciting the opinion of the court, Justice Denecke begins by stating the requirements for the establishment of probable cause. Probable cause exists if the person initiating the action adheres to the following:

He or she (A) reasonably believes that the person accused has acted or failed to act in a particular manner, and (B) correctly believes that such acts or omissions constitute at common law or under an existing statute the offense charged against the accused.

Thus, for probable cause to be established, the defendant must be able to establish a reasonable belief in the guilt of the accused, as well as a subjective belief. Payless asserts that the trial court erred in its decision, claiming that probable cause had been established for the prosecution of the plaintiff. Justice Denecke asserted that it is the duty of the court, not the jury, to determine probable cause. Furthermore, Denecke notes that the facts agreed upon by the court are in favor of the defendant.

Thus, in finding the defendant lacking in probable cause, the ruling is balanced because it provided the greatest possible merit to the defendant’s claims and still found Payless lacking in probable cause to arrest the plaintiff. Specifically, when presenting their version of the facts, the defendant contradicted Mrs. Gustafson’s statement in three particular areas.

# Mrs. Yaw claimed that the plaintiff had exited the store, cigarettes in hand, by passing a checkout stand and the people in line. (This would indicate a possible attempt at shoplifting, as it implies that the plaintiff knowingly exited the store without paying for the item.)
# Mrs. Yaw further claimed that the cigarettes had been placed on the far left of the vehicle, possibly indicating an effort to conceal the merchandise.
# Finally, Mrs. Yaw claimed that the plaintiff, when confronted about the item, calmly stated that she forgot to pay, and that no apologies were made as claimed by Mrs. Gustafson.

To these three claims, the court responded that no attempt was made to conceal the cigarettes in the bed of the truck, as the distance from where the plaintiff claimed she had placed them and where Mrs. Yaw contended they had been placed was less than a foot, and was deemed insignificant in nature. Thus, even if it was supposed that the defendant was correct in its other two contradictions to the facts, probable cause had still not been established for the arrest.

Mrs. Gustafson’s intense discussion with her mother-in-law served as reasonable evidence to support the possibility that she had been distracted sufficiently that she forgot she had not already purchased the cigarettes. The fact that she was not extremely apologetic as originally stated by the plaintiff was also academic in nature. In short, the plaintiff never behaved in a suspicious manner which would suggest shoplifting, or which implied guilt or provided probable cause.

Mrs. Gustafson kept the merchandise in plain view. She attempted to pay for the item. She waited for an extended period outside the store after exiting. She purchased additional items. None of this behavior is consistent with that of a shoplifter, and Mrs. Yaw was aware of this conduct on the part of the plaintiff.

Payless also contended that it had probable cause because it acted upon the advice of the deputy district attorney, and that the action against the plaintiff was brought as a result of the police officer and the deputy district attorney, as opposed to Payless itself. The deputy district attorney did not become involved in the matter until after the arrest, and only acted upon the facts provided by Payless. These facts left out a number of relevant points, most notably the issue of Mrs. Gustafson’s prolonged and distracting conversation with her mother-in-law. In failing to supply all the relevant details regarding the situation, the actions of Payless became instrumental in “putting the law in force,” thus voiding the claim of probable cause through the advice of the deputy district attorney.

Denecke finally notes that it had been consistently held that the jury may make a finding of malice based upon a lack of probable cause. Given that probable cause was not established, sufficient evidence of malice was found upon the part of the defendant to enable the jury to find for the plaintiff.

Dissent

Justice Holman dissents, noting that while the aforementioned facts are relevant to whether or not the plaintiff merely forgot to pay for the cigarettes, they are wholly irrelevant to whether the detective had probable cause to prosecute Mrs. Gustafson for shoplifting. Holman notes that the removal of merchandise from a store without paying is generally held as probable cause for shoplifting, as cited in the case of Delp v. Zapp’s Drug and Variety Stores. Under this ruling, he argues that the defendant possessed probable cause.

References