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About False Imprisonment in New York

As an owner or operator of a retail establishment, you may one day face a claim sounding in false imprisonment brought by a patron who was detained for the purpose of questioning or investigation in connection with attempts to shoplift items or perform some other criminal act.  It is therefore prudent for store owners to be aware of the essential elements and defenses to claims of false imprisonment.

Essential Elements for Claims of False Imprisonment

False imprisonment is sometimes referred to as “false arrest.” Arrest usually involves confinement, but not every confinement originates with an arrest, Wallace v. Kato, 549 US 384, 127 S.Ct. 1091 (2007).

False imprisonment, therefore, includes, but is not limited to false arrest. According to Martinez v. Schenectady, 97 NY2d 78, 735 NYS2d 868, 761 NE2d 560 (2001), the essential elements of both false arrest and false imprisonment are the:

  1. Defendant intended to confine plaintiff;
  2. Plaintiff was conscious of the confinement;
  3. Plaintiff did not consent to the confinement; and
  4. Confinement was not otherwise privileged.

Negligence, malice, and want of probable cause are not essential elements of the tort of false imprisonment. Further, the use of force is not a necessary element of false imprisonment, although it may increase the plaintiff’s damages. Rather, any act which restrains the plaintiff is sufficient, and he or she need not resist. See Harrison v. Samaritan Medical Center, 128 A.D.3d 1469, 9 N.Y.S.3d 495 (4th Dept. 2015). 

What Constitutes Confinement?

Any physical detention, though it be only for a few minutes, is sufficient, Jacques v. Sears, Roebuck & Co., Inc., 30 NY2d 466, 334 NYS2d 632, 285 NE2d 871 (1972). It is not necessary that there be confinement to a prison. Thus, false imprisonment may consist of confining a person to a store, Reese v. Julia Sport Wear, 260 App Div. 263, 21 NYS2d 99 (3d Dept. 1940), or a hotel room, Cicurel v. Mollet, 1 AD2d 239, 149 NYS2d 397 (1st Dept. 1956), aff'd, 1 NY2d 797, 153 NYS2d 60, 135 NE2d 594 (1956), or a hospital, Willoughby v. Mount Sinai Hosp., 15 AD3d 264, 790 NYS2d 437 (1st Dept. 2005), or preventing a person from exiting at the place where he entered when other means of exit are unknown to him and he is not advised of them, Barrett v. Watkins, 82 AD3d 1569, 919 NYS2d 569 (3d Dept. 2011).

Confinement may also result when a school child is placed in an unventilated and unsanitary “time-out” room and not permitted to leave, Peters v. Rome City School Dist., 298 AD2d 864, 747 NYS2d 867 (4th Dept 2002).

Confinement may result although no physical force is employed; the display of force sufficient to dominate the situation and submission thereto by plaintiff is enough, McLoughlin v. New York Edison Co., 252 NY 202, 169 NE 277 (1929), as is any other act which deprives plaintiff of his or her liberty, Ippisch v. Moricz-Smith, 1 Misc2d 120, 144 NYS2d 505 (Sup 1955), mod. on other grounds, 1 AD2d 968, 150 NYS2d 419 (2d Dept. 1956). There is no requirement that plaintiff offer physical resistance to the force displayed or threatened, see Stevens v. O'Neill, 51 App Div. 364, 64 NYS 663 (1st Dept. 1900), aff'd, 169 NY 375, 62 NE 424 (1902); Feldman v. Bethel, 106 AD2d 695, 484 NYS2d 147 (3d Dept. 1984). However, neither a request that plaintiff leave the premises, Bass v. Saratoga Harness Racing Ass'n, 286 App Div 934, 143 NYS2d 31 (3d Dept. 1955), nor a threat to have plaintiff arrested, Blumenfeld v. Harris, 3 AD2d 219, 159 NYS2d 561 (1st Dept. 1957), aff'd, 3 NY2d 905, 167 NYS2d 925, 145 NE2d 871 (1957), nor the issuance of an appearance ticket, Santoro v. Smithtown, 40 AD3d 736, 835 NYS2d 658 (2d Dept. 2007), nor the issuance of a criminal summons in lieu of an arrest warrant, Weiss v. Hotung, 26 AD3d 855, 809 NYS2d 376 (4th Dept. 2006), see Zetes v. Stephens, 108 AD3d 1014, 969 NYS2d 298 (4th Dept. 2013), constitutes confinement.

However, see Ellenville v. Searles, 235 AD2d 692, 652 NYS2d 151 (3d Dept. 1997) (brief traffic stop for service of process with no actual custody is not a confinement). Likewise, plaintiff's own decision to remain at her place of employment, prompted by her fear that she would be arrested or discharged if she left, did not give rise to any confinement, Malanga v. Sears, Roebuck and Co., 109 AD2d 1054, 487 NYS2d 194 (4th Dept. 1985), aff'd, 65 NY2d 1009, 494 NYS2d 302, 484 NE2d 665 (1985); Arrington v. Liz Claiborne, Inc., 260 AD2d 267, 688 NYS2d 544 (1st Dept. 1999). An appearance in criminal court pursuant to a criminal summons is not a confinement, Nadeau v. La Pointe, 272 AD2d 769, 707 NYS2d 704 (3d Dept. 2000); Reinhart v. Jakubowski, 239 AD2d 765, 657 NYS2d 802 (3d Dept. 1997).

Defining Intent

Intent is an essential element of a false imprisonment claim. Broughton v. State, 37 NY2d 451, 373 NYS2d 87, 335 NE2d 310 (1975); Kim v. BMW of Manhattan, Inc., 35 AD3d 315, 827 NYS2d 129 (1st Dept. 2006) (no confinement by car dealer where plaintiff could leave garage if he chose not to take car); Stauber v. New York City Transit Authority, 10 AD3d 280, 781 NYS2d 26 (1st Dept. 2004) (no intent to confine where bus driver promptly requested assistance to extricate wheelchair from defective lift).

The intent necessary is intent to detain or confine, Broughton v. State, supra; Petty v. North General Hosp., 1 AD3d 288, 767 NYS2d 590 (1st Dept. 2003). It need not be intent to confine the particular person confined. It is enough that through an act done with intent to confine a third person, plaintiff is in fact confined, see Gau v. Smitty's Super Valu, Inc., 183 Ariz. 107, 901 P2d 455 (App. Div. 1 1995). Intent to confine is not established merely upon a showing that defendant's words or actions caused a police officer to confine the plaintiff, see Berrios v. Our Lady of Mercy Medical Center, 20 AD3d 361, 799 NYS2d 452 (1st Dept. 2005); Du Chateau v. Metro-North Commuter R. Co., 253 AD2d 128, 688 NYS2d 12 (1st Dept. 1999). Rather, plaintiff must show that the defendant directed the officer to take plaintiff into custody, see Vernes v. Phillips, 266 NY 298, 194 NE 762 (1935); Du Chateau v. Metro-North Commuter R. Co., supra, or otherwise affirmatively instigated the arrest, Mesiti v. Wegman, 307 AD2d 339, 763 NYS2d 67 (2d Dept. 2003). Except on the issue of punitive damages, neither good faith nor malice is relevant, Broughton v. State, supra; see Parkin v. Cornell University, Inc., 164 AD2d 240, 562 NYS2d 1013 (3d Dept. 1990).

Establishing Detention 

The restraint must be without plaintiff's consent and plaintiff must be conscious of it, Parvi v. Kingston, 41 NY2d 553, 394 NYS2d 161, 362 NE2d 960 (1977); and it is error not to instruct the jury that if plaintiff goes along voluntarily in order to clear his or her name there is no detention, Stevens v. O'Neill, 51 App. Div. 364, 64 NYS 663 (1st Dept. 1900). Whether detention was without plaintiff's consent and whether plaintiff was aware of it are generally questions for the jury.  The burden of proof is on the plaintiff to establish detention against his or her will, intent to detain or confine, and scope of employment when in issue.

Privilege

With respect to the fourth element, that the confinement was not otherwise privileged, the plaintiff must plead and prove that the confinement or detention was effectuated without a warrant, see Parvi v. Kingston, 41 NY2d 553, 394 NYS2d 161, 362 NE2d 960 (1977). A warrantless confinement or detention gives rise to the presumption that it is unlawful, thereby casting the burden upon the defendant to plead and prove justification as an affirmative defense, Barr v. Albany, 50 NY2d 247, 428 NYS2d 665, 406 NE2d 481 (1980); Such a restraint is privileged only if it is reasonable under the circumstances and in its time and manner, Sindle v. New York City Transit Authority, 33 NY2d 293, 352 NYS2d 183, 307 NE2d 245 (1973).

Defenses

An action for false imprisonment is governed by a one-year statute of limitations, see C.P.L.R. § 215, and the defendant may assert the defense of the statute of limitations.  In the case of an arrest without a warrant, the defendant may assert that the arrest was justified, based upon proof that, at the time of the arrest, the defendant had probable cause to believe that the plaintiff had committed a crime. See Wallace v. City of Albany, 283 A.D.2d 872, 725 N.Y.S.2d 728 (3d Dept. 2001). The defendant may also assert the defense of “lawful detention” pursuant to N.Y. Gen. Bus. Law § 218. See Waynes v. BJ’s Wholesale Club, Inc., 97 A.D.3d 659, 948 N.Y.S.2d 641 (2d Dept. 2012). This statute permits reasonable detention without incurring liability. It provides that in an action for false imprisonment brought by a person who was detained on or in the immediate vicinity of the premises of a retail mercantile establishment or a movie theatre, it is a defense that such person was detained in a reasonable manner and for a reasonable time for the purpose of investigation or questioning, provided that the owner of the establishment (or the employee or agent of the owner) had reasonable grounds to believe that the person detained was committing or attempting to commit larceny of merchandise or engaged in the unauthorized operation of a recording device in a movie theatre.

Damages

Damages can be awarded for injuries suffered by the plaintiff as a result of the incident. The defendant’s good or bad motives, good or bad faith, and malice or lack thereof, may have a bearing on the amount of damages. Broughton v. State, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975) (Ct. Cl. 2010) (award of $20,000 for past noneconomic damages as result of 91 days’ unlawful confinement resulting from Division of Parole’s miscalculation of plaintiff’s release date). See Sanabria v. State, 29 Misc. 3d 988, 908 N.Y.S.2d 527 (Ct. Cl. 2010). 

Compensatory damages that plaintiff may recover are those damages reasonably and proximately caused by the illegal detention, Aguglia v. Hills Dept. Stores, Inc., 167 AD2d 934, 561 N.Y.S.2d 1002 (4th Dept. 1990), including mental anguish, Hoffner v. State, 207 Misc. 1070, 142 N.Y.S.2d 630 (Ct. Cl. 1955), shame and humiliation, Tierney v. State, 266 App. Div. 434, 42 N.Y.S.2d 877 (3d Dept. 1943), injury to reputation, Allen v. Fromme, 141 App. Div. 362, 126 N.Y.S. 520 (1st Dept. 1910), physical suffering or bodily injuries, Sindle v. New York City Transit Authority, 33 NY2d 293, 352 NYS2d 183, 307 NE2d 245 (1973), loss of earnings or business, see Roher v. State, 279 App. Div. 1116, 112 NYS2d 603 (3d Dept. 1952); and legal expenses in defending the prior charge, Broughton v. State, 37 NY2d 451, 373 NYS2d 87, 335 NE2d 310 (1975), Worden v. Davis, 195 NY 391, 88 NE 745 (1909).  A showing of good faith by defendants is relevant to mitigation of damages and where established may result in nominal damages only, see Nelson v. Glenville, 220 AD2d 955, 633 NYS2d 222 (3d Dept. 1995).

Further, a jury may award punitive damages if the defendant acted wantonly, recklessly, willfully, or maliciously with a design to oppress or injure the plaintiff. Saurel v. Sellick, 244 A.D. 845, 279 N.Y.S. 323 (3d Dept. 1935). Good faith and absence of malice, if pleaded as a partial defense, may be shown in mitigation of punitive, though not compensatory, damages, see Best v. Genung's Inc., 46 AD2d 550, 363 NYS2d 669 (3d Dept. 1975). Probable or reasonable cause, if pleaded, may also be shown in mitigation of punitive damages, Jones v. Freeman's Dairy, 283 App. Div. 667, 127 NYS2d 200 (2d Dept. 1954).

How to Prepare for Claims of False Imprisonment

The best way to prepare for and possibly prevent a claim of false imprisonment starts with a good training program in which store employees are instructed about:

  • The elements of the claim and how to look for potential shoplifters;
  • What to do in the event that a patron is suspected of shoplifting; and
  • Effective ways to stop and detain the suspected shoplifter until the appropriate authorities arrive. 

Surveillance cameras should be employed to capture all possible video footage of the suspected shoplifter, including the act of detainment.  One caveat that must be mentioned is that many stores do not retain the video footage following the detainment.  The failure to retain the video may result in a spoliation charge and a possible adverse finding by the court, which could include the striking of the defendant’s answer. 

Accordingly, it is imperative that the store retain all footage from the date of the incident and store it in a secure location to avoid such an adverse result.  Further, never surrender your one and only copy of the video footage to police or even the insurance company or attorney.  Rather, several copies of the video should be made to ensure that the original video is not inadvertently damaged or lost. 

Proper training and preservation of key evidence is the best way for a store owner and, thereafter, the insurer, to make sure that there is a strong defense to the claim of false imprisonment.


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