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LA240 Legal Writing Final Exam Duran Legal Memo Sandra Black Or

LA240 Legal Writing Final Exam Duran Legal Memo Sandra Black Or

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Published by: LegalDoomUT on Sep 12, 2010
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11/01/2012

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MEMORANDUM OF LAW
To:Supervising AttorneyFrom:Sandra Black, ParalegalDate:June 22, 2010Case:Duran v. ShoptownRe:False ImprisonmentStatement of AssignmentI have been assigned the task of answering the legal question if there is a possibility that Mrs.Duran will prevail in a false imprisonment claim in response to shoplifting allegation made bythe store’s security guard.IssueUnder Statutory Law
:
 Kan. Stat. Ann. § 21-3424, Criminal Restraint 
. (a) Criminal restraint isknowingly and without legal authority restraining another person so as to interfere substantiallywith such person's liberty. (b) This section shall not apply to acts done in the performance of duty by any law enforcement officer of the state of Kansas or any political subdivision thereof.(c) Any merchant, or a merchant's agent or employee, who has probable cause to believe that a person has actual possession of and has wrongfully taken, or is about to wrongfully takemerchandise from a mercantile establishment, may detain such person on the premises or in theimmediate vicinity thereof, in a reasonable manner and for a reasonable period of time for the purpose of investigating the circumstances of such possession. Such reasonable detention shallnot constitute an arrest nor criminal restraint.Brief Answer Qualification. No. In the case of, Melia v. Dillon Companies, Inc., 18 Kan. App. 2d 5, 846 P.2d257 (1993), “Martin
Melia
filed suit seeking compensatory and punitive damages against
DillonCompanies
,
Inc
., (
Dillon
) upon allegations of false imprisonment and malicious prosecution.The jury returned a verdict in favor o
Melia
, awarding compensatory damage of $20,200. Thetrial court additionally imposed punitive damages of $20,000.
Dillon
appeals, contending thetrial court erred in not granting its motion for directed verdict. We agree and reverse the judgment of the trial court.”Statement of FactsThe store’s security guard saw Janet Duran place a bottle of nail polish in her coat pocket as shewas shopping. Ms. Duran took the polish from her pocket and put the polish back. She attempted
 
to leave the store after she paid for her items when the guard stopped her and took her to themanager’s office. The guard advised her that he was detaining her for shoplifting. The storemanager searched her purse and ordered Ms. Duran to empty her pockets. She willinglycomplied with the request. The store manager searched her purse and did not find the polish. Themanager asked her to leave the store immediately following the search.AnalysisStoreowners, managers, employees, and security officers have limited rights when detaining a person reasonably suspected of shoplifting. Detention is limited to the premises or immediatevicinity. An investigation of the incident must also take place within a reasonable manner andamount of time.There are three elements involved in false imprisonment: (1) confinement (2) restraint without ameans of escaping and (3) there must be harm or injury caused by the confinement or detention.Malice is not an element included in the tort of false imprisonment. However, if it can be proven by a plaintiff, punitive damages, compensatory damages, or nominal damages can be awarded.Jane Duran’s detention meets the confinement element but she was not restrained or held againsther will by the security officer or store manager. There was no harm or injury caused by thedetention and store personnel conducted an immediate investigation. The nail polish was notfound on Ms. Duran after the search and the manager asked her to leave immediately after thestore investigation was completed. While the accusation and detention may have beenembarrassing, there was no harm or injury caused by the actions of the store employees such as prosecution or loss of wages.According to the case law in
Melia v. Dillon Companies, Inc.
, 18 Kan. App. 2d 5, 846 P.2d 257(1993), the court evaluated Melia's false imprisonment claim under the provisions of K.S.A. 21-3424 which is the controlling statutory law in the case. The court clarified the statute:"(1) Unlawful restraint is knowingly and without legal authority restraining another so as tointerfere substantially with his liberty.(3) Any merchant, his agent or employee, who has probable cause to believe that a person hasactual possession of and (a) has wrongfully taken, or (b) is about to wrongfully take merchandisefrom a mercantile establishment, may detain such person (a) on the premises or (b) in theimmediate vicinity thereof, in a reasonable manner and for a reasonable period of time for the purpose of investigating the circumstances of such possession. Such reasonable detention shallnot constitute an arrest or an unlawful restraint.Although 21-3424 is a criminal statute, the merchant's defense set forth in subsection (3) isapplicable to civil actions for false imprisonment” as established in the case of 
 Alvarado v. Cityof Dodge City,
238
Kan
. 48, 60, 708
P.2d
174 (1985). The appellate court overturned the trialcourt’s judgment and directed verdict against
 Dillion
based on the probable cause factor.

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