As discussed in my last article, many states hold parents/guardians civilly liable for theft from retailers by minors (i.e., "civil recovery liability"). While many states' statutes may promote parental responsibility by holding parents/guardians civilly liable for not exercising effective control over their minor children, not all states do.¹ Instead, some states have created statutes that provide a defense to the parents/guardians of the minor child for the purpose of limiting parent/guardian liability. States such as Mississippi, North Carolina, South Carolina, Utah and North Dakota all provide defenses that can essentially excuse the parents/guardians from civil recovery liability.

Subsection (3) of Mississippi's civil recovery statute allows for parental liability when it is proven that the parents/guardians had knowledge of the minor's intent or when it is proven that the parents/guardians aided and abetted the minor in such violations. This does not mean that a retailer must prove that the parents/guardians were directly or indirectly involved with the minor in the retail theft prior to making a request for civil recovery damages. In instances where a retailer retains a civil recovery law firm to make a request for damages on its behalf, "An advocate... is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer."² Further, nowhere within the plain language of the statute is there a requirement for the injured retailer to perform the research to make a determination as to whether the parents/guardians had knowledge of the minor's intent and/or aided and abetted the minor. Instead, subsection (2) strengthens the position that a retailer is not required to perform such research because Mississippi's civil recovery statute merely requires a written demand be made to the person or accused liable for damages prior to the filing of an action for damages.

North Carolina limits parent/guardian liability to those who knew or should have known of the minor's propensity to commit a larceny and made no reasonable effort to correct or restrain the child. South Carolina is similar in that it holds parents/guardians civilly liable if the parents/guardians knew or should have known of the minor's propensity to steal. While North and South Carolina may provide a strong defense to parent/guardian liability under each states' respective civil recovery statute, it does not necessarily give the parents/guardians an automatic "out." Nowhere in these specific statutes does it preclude a retailer from making a request for civil recovery damages. Instead it merely provides the parents/guardians with a defense that may be raised after receipt of a civil recovery letter or may be raised in court in the event that a civil suit is filed against them. While a retailer may therefore make a statutory civil demand, if the parents/guardians raise such a defense, unless the retailer has evidence to overcome the defense, the retailer may consider dropping its civil damages request.

Utah limits parent/guardian liability to those who make a reasonable effort to restrain the minor child from wrongfully taking merchandise or who report the minor's intentions to the merchant involved or to local law enforcement. While parents/guardians may attempt to utilize such a defense, such defense can often be defeated because in most instances where the apprehended shoplifter is a minor, the parents/guardians are typically not present to properly supervise the minor child in the store. Had the parents/guardians been present or properly supervising the minor child, the child would not likely have shoplifted other than the sad situation when parents/guardians encourage their minor children to steal. Lastly, if the parents/guardians of the minor child had later discovered the wrongful taking of the merchandise by the child, such parents/guardians should not be absolved of any civil liability unless the parents/guardians took steps to promptly report the wrongful taking to the merchant or to local law enforcement.

North Dakota excuses parents/guardians from liability if it is determined by the court that one of the primary reasons that the minor chose to shoplift was to cause the parents/guardians to be liable for the resulting civil recovery damages. It seems that it would be rare for a child to steal in an attempt to cause financial hardship to his or her parents/guardians and may be difficult for those parents/guardians to prove.

By understanding the potential limitations on a retailer's rights, a retailer will be more aware of and potentially better equipped to defeat defenses that may arise from parents/guardians whether in response to civil settlement offers or the filing of civil recovery lawsuits.

1. See Curry v. Superior Court, 20 Cal. App. 4th 180, 187–188, 24 Cal. Rptr. 2d 495 (1993)

2. Comment Section of Rule 3.3 of the Mississippi Rules of Professional Conduct

Retailers generally understand that various potential issues may arise when apprehending a shoplifter and their concerns are heightened when the shoplifter is a minor. Parents who are not contacted by a retailer during their minor's detention tend to get upset, rightfully concerned for the safety and well-being of their minor child but sometimes mistakenly believing that their child was illegally detained because they often only get the child's side of the story. As a result, many retailers will choose to handle the apprehension of a juvenile shoplifter with special care.

Some parents have the mistaken belief that a minor shoplifter's apprehension is only conducted in a "reasonable manner" if the retailer makes successful contact with the parents to notify them of the allegations of theft by their minor child. While a retailer may desire to alert the parents of the incident, it is important for a retailer to understand that choosing to continue to hold a child beyond a reasonable length of time until the child's parents have been successfully notified may put the retailer at greater risk of exposing itself to civil liability for unreasonably detaining the minor or possibly other causes of action. Therefore, when balancing the risk of dealing with an angry parent who wanted to be present when the minor was detained against the risk of exposing the company to potential civil liability, it makes sense to develop a sound contingency plan for situations where the parent or legal guardian is not available. If a minor child was acting in concert with a second minor child, for example, would you be willing to release the minor into the custody of the second minor child's parent or legal guardian? Or, does it make more sense to make a reasonable attempt to contact the parents of the minor and then only release the child into the custody of local law enforcement if the parents have not responded within a reasonable amount of time or were not able to be reached? While many states do not provide a clear cut procedure for handling the apprehension of a minor shoplifter, some state statutes provide guidance on how the apprehension should be conducted.

Some states provide clear guidelines regarding parental notification. For example, in North Carolina, during the period of detention, a merchant shall make a reasonable effort to call or notify the parent or guardian of the minor. Further, under the North Carolina statute, by making a reasonable attempt to call or notify the parent or guardian, the merchant cannot be held civilly liable. In Illinois, a merchant may detain a minor child in a reasonable manner and for a reasonable length of time for all or any of the purposes listed in the statute, which include requesting identification, informing and surrendering the person to the police or making a reasonable attempt to inform the parent or guardian.

Other states have statutes that provide guidelines regarding what can be considered a reasonable amount of time for the detention of a minor. For instance, Minnesota requires a merchant to detain a minor for theft for no more than one hour unless the merchant is waiting to surrender the minor to a police officer or to the minor's parent or guardian. In this instance, the minor may be detained until the police officer or the parent or guardian has arrived and accepted the custody of the minor. In Tennessee, a merchant may detain a minor for the purpose of informing a police officer or the minor's parent or guardian of the detention and further specifies that a "reasonable period of time" can include the time spent waiting to surrender the minor to the custody of the informed person.

A few states also provide specific guidelines regarding the obtainment of confessions from minors. For instance, Indiana's statute states that a retailer may detain a minor shoplifter for the purpose of informing the parents that the minor has been detained but shall not ask a minor under the age of 18 to make a statement acknowledging that he or she committed a theft or a statement waiving any of his or her legal rights if the minor was not afforded an opportunity to consult with his or her parent or guardian. In instances where a statement was obtained from the minor in violation of the statute, such statement would not be admissible as evidence against the minor as to whether the child committed the act or a crime. Further, in North Dakota, a merchant may not request a minor shoplifter to sign an admission of theft unless the minor's parent, guardian, or attorney is present. An admission obtained in violation of North Dakota's statute would also be inadmissible against the minor in a civil or criminal action.

In apprehensions that involve minor children, the majority of states do not require special treatment of minor theft offenders; however, as a risk management precaution, it is important to develop and implement standards to help ensure the highest legal protection to the retailer. Therefore, retailers should take great efforts to develop and review policies and procedures regarding the steps required to ensure probable cause exists for productive apprehensions, that minors are only detained in a reasonable manner with witnesses present and for a reasonable amount of time, and are released in a manner consistent with the individual state law. When in doubt, it is best to be more conservative and set a national policy that will withstand the scrutiny of and fit any state law.

Have a question about civil recovery or related theft law? E-mail us at This e-mail address is being protected from spambots. You need JavaScript enabled to view it and we'll pass it on to our friends at Palmer, Reifler & Associates to get an answer from their legal team.

Intentional torts such as theft require a finding of intent. However, at times, a finding of intent can be difficult to prove. Generally, it requires a retailer to prove that the alleged shoplifter possessed the mental state necessary to commit theft at the time of the incident.¹ Absent a reasonable determination of intent, the retailer can potentially be at risk to exposing itself to various liabilities including false imprisonment, malicious prosecution, defamation and slander. It is due to this difficult determination that many retailers sometimes choose to err on the side of caution and refrain from detaining a suspected shoplifter. So how can a retailer make a reasonable determination that the suspected shoplifter possesses the intent to commit theft when it is nearly impossible to determine a person's state of mind? Many states allow for a presumption of intent. The third part of our merchant detention statute series will focus on those states that make it easier for retailers to determine whether the suspected shoplifter had the intention to commit theft by allowing intent to be presumed under certain circumstances.

A presumption allows a specific fact to be deemed a reasonable assumption when the fact is based upon the existence of other known or proven facts.² In states where a presumption is allowed, a retailer has the right to make the assumption that an alleged shoplifter possesses the required mental state to commit theft based upon the existence of other known facts that would give rise to that conclusion. For example, some states allow for intent to be presumed as soon as the person conceals unpurchased merchandise.³ Arizona and Arkansas allow for the appropriate mental state to be presumed if the person conceals unpurchased merchandise. Nevada permits a presumption of intent if the retailer observes the person concealing merchandise while on its premises and Oklahoma gives rise to that same presumption if the person is observed concealing unpurchased merchandise either on or off its premises.⁴

Other states allow for a presumption of intent when the suspected shoplifter has concealed merchandise either on his person or on another person. Delaware and New Mexico allow the retailer to presume intent when the person willfully conceals unpurchased merchandise on or within the belongings of his person or another person either on or outside the premises of the store.⁵

Certain states such as Mississippi allow for a presumption of intent to apply to the person who actively conceals merchandise as well as the person who acts in concert with the principal offender.⁶ Other states require that the person not only conceal merchandise but also pass all points of purchase or exit the store. North Dakota gives rise to a presumption of intent when the person is observed concealing merchandise on or within the belongings of his person or another person and subsequently passing the last point of sale without making any attempt to pay for the concealed merchandise.⁷

When a retailer is unsure as to whether the suspected shoplifter has the intent to commit theft, generally, a safe course of action is to consider all of the facts and circumstances surrounding that particular incident.⁸ While simply concealing merchandise may not always give rise to a presumption of intent, it will at least give a retailer reasonable grounds to detain the suspected shoplifter in a reasonable manner and for a reasonable length of time for the purpose of investigating whether or not a theft did in fact occur.

1. See Black's Law Dictionary 369 (3rd pocket ed. 2006)
2. See Black's Law Dictionary 558 (3rd pocket ed. 2006)
3. ARIZ. REV. STAT. ANN. § 13-1805; ARK. CODE ANN. § 5-36-102
4. NEV. REV. STAT. § 597.850; OKLA. STAT. tit. 22, § 1343
5. DEL. CODE ANN. tit. 11, § 840; N.M STAT. ANN. § 30-16-22
6. MISS. CODE ANN. § 97-23-93
7. N.D. CENT. CODE § 51-21-02
8. Guijosa v. Wal-Mart Stores, Inc., 6 P.3d 583, 591-93, 101 Wash. App. 777 (2000) aff'd, 32 P.3d 250, 144 Wash. 2d 907 (2001)

Many states have created merchant detention statutes in an effort to protect retailers. These statutes were created to protect retailers from exposure to civil liability associated with detaining suspected shoplifters, provided the merchant meets the conditions of the applicable statute. Due to space constraints, in this article we are not able to address the question of what is a reasonable manner of detention or other issues that may arise regarding the detention of theft offenders.

While merchant detention statutes provide some guidance regarding the detention of suspected shoplifters, the various state statutes do not address or are not consistent with each other as to the amount of time that is considered reasonable to detain an individual suspected of stealing from a store. Because of the litigious nature of our society and due to the various questions not addressed or inconsistent in the detention statutes, many retailers have decided to set more stringent policies than listed in detention statutes for detaining suspected shoplifters to help minimize potential civil liability. What exactly constitutes a reasonable length of time?

Some state statutes permit a retailer to detain a suspected shoplifter for the purpose of contacting law enforcement and having the suspected shoplifter placed into custody.¹  However, many of these states still require that the suspected shoplifter be detained for a reasonable amount of time.²  Other states allow the retailer to detain the suspected shoplifter for the period of time needed to await the arrival of law enforcement or to surrender the suspected shoplifter to a peace office or local law enforcement.³

While the wording of many of these statutes help provide some guidance to retailers when detaining suspected shoplifters, it would prove helpful for these statutes to contain an exact time or at least an acceptable range for what would constitute a reasonable length of time. Luckily, there are some statutes that actually do provide a time frame. Some state statutes have very stringent requirements that allow for as little as thirty minutes for detainment, while other more liberal statutes allow for as long as two hours for detainment.

Detention statutes in Maine, Montana, and West Virginia protect retailers that detain for a reasonable amount of time to investigate the suspected shoplifting incident so long as the detainment does not exceed thirty minutes.⁴

The detention statute in Louisiana allows a retailer to detain a suspected shoplifter for questioning so long as the investigation does not exceed sixty minutes.⁵  However, should the retailer have reasonable cause to believe the person committed theft, the retailer reserves the right to detain the suspected shoplifter for arrest by a peace officer.⁶

Minnesota's detention statute allows a retailer to detain a suspected shoplifter for no more than one hour unless the retailer is waiting to surrender the suspected shoplifter to a peace officer or a minor's parent or guardian. In this instance, the suspected shoplifter may be detained until the peace officer or the parent or guardian of the minor child has arrived and accepted custody of the suspected shoplifter.⁷

Rhode Island allows a retailer to detain a suspected shoplifter until a police officer has been summoned to the premises; however, in no instances shall this period of time exceed one hour.⁸

Virginia allows for a retailer to detain a suspected shoplifter for a time not to exceed one hour.⁹  Also, in Virginia, if notice is visibly posted at each store exit that informs the patrons of the presence of anti-shoplifting devices, a person can be stopped when an electric article surveillance device is activated.¹⁰   However, such detainment shall only be for the amount of time that is needed to make an inquiry into the circumstances relating to the activation of the device.¹¹

Lastly, Indiana allows a retailer a reasonable amount of time to investigate the suspected shoplifting incident and release the suspected shoplifter to law enforcement so long as the detainment does not exceed two hours.¹²

When a retailer is unsure as to what would constitute a reasonable amount of time, generally, a safe method would be to consider the reasonableness of the detention as well as the facts and circumstances relating to the suspected shoplifter's incident.¹³  However, without being provided with specific parameters, it is sometimes difficult for a retailer to determine what exactly would constitute a reasonable length of time. For these reasons, it is important for retailers to develop and implement standards that meet the most stringent of detention statutes and to collectively urge state legislatures to expand the time frame for what is to be considered a reasonable length of time for detentions to clear up ambiguities in the various detention statutes and to provide retailers greater legal protections when making theft apprehensions.

1. DEL. CODE ANN. tit. 11, § 840; FLA. STAT. § 812.015
2. Id.
3. See N.H. REV. STAT. ANN. § 627:8-a; TENN. CODE ANN. § 40-7-116; CONN. GEN. STAT. § 53a-119a
4. ME. REV. STAT. tit. 17, § 3521; MONT. CODE ANN. §46-6-506; W. VA. CODE § 61-3A-4
5. LA. CODE CRIM. PROC. ANN. art. 215
6. Id.
7. MINN. STAT. § 629.366
8. R.I. GEN. LAWS § 11-41-21
9. VA. CODE ANN. § 8.01-226.9
10. Id.
11. Id.
12. IND. CODE § 35-33-6-2
13. Guijosa v. Wal-Mart Stores, Inc., 6 P.3d 583, 591-93, 101 Wash. App. 777 (2000) aff'd, 32 P.3d 250, 144 Wash. 2d 907 (2001)

Retail Theft Victims & The Criminal Exception:

How some states restrict retailers' rights to civil action.

Annually, retailers lose billions of dollars due to theft. In 2010, global retail shrinkage totaled $107.284 billion with shoplifting being the largest contributing factor. As a result, retailers have invested $26.823 billion towards preventative measures including increased security personnel costs, investments in video surveillance systems and various EAS loss control devices.

All U.S. states have come to realize the huge impact of shoplifting to the retail industry and have enacted civil statutes to help deter future theft incidents and to help make the victim retailers "whole". Almost all of the state statutes provide retailers a right to recover civil (penalty) damages in addition to actual damages for shoplifting incidents thereby adding to the common law and providing a component of punishment to their civil recovery statutes. However, this has not always been the case. Instead, some states have restricted the victimized retailers' rights.

Generally, injured victims have both criminal and civil remedies available to them for redress. However, some states restrict retailers' rights of access to the courts. For instance, in Michigan and Wyoming retailers are required to file a police report prior to sending a statutory civil damages request pursuant to each state's respective statute. In North Dakota, a merchant may not request any statutory civil damages and/or civil restitution until the completion of the criminal case. In Virginia, if a person is arrested, a statutory civil damages request cannot be made until the person is convicted under Virginia Code Annotated Section 18.2-103. New Mexico also requires a conviction under its shoplifting statute as a prerequisite to civil liability. In Tennessee, a retailer must receive consent from the District Attorney General for the local county prior to making a statutory civil damages request "in lieu of" criminal prosecution. In South Carolina, a merchant may not subsequently file criminal charges after a statutory civil damages request has been made. In West Virginia, if the criminal court orders a defendant to pay a criminal penalty which is equal to amount requested as statutory civil damages (penalty), the request for statutory civil damages must be discontinued. Lastly, while the New Hampshire statute raised the additional civil damages liability from $200 to $400, if a store chooses to enter into the statutory settlement agreement instead of opting to pursue a civil statutory damages claim in civil court under subsection III, the retailer could be precluded from pursuing prosecution.

For these reasons, it is important for retailers to collectively urge state legislatures to remove these types of restrictions from their civil theft statutes and to also include employee theft incidents and theft of cash within the various statutes' reach so that retailers can have greater rights and remedies available to combat retail theft from employees and shoplifters.

1. http://www.globalretailtheftbarometer.com/pdf/grtb-2010-summary.pdf

2. http://www.globalretailtheftbarometer.com/pdf/grtb-2010-summary.pdf

3. Michigan Compiled Laws Section 600.2953 and Wyoming Statutes Section 1-1-127

4. North Dakota Century Code Section 51-21-05

5. Virginia Code Annotated Section 18.2-104.1

6. New Mexico Statutes Annotated § 30-16-21

7. Tennessee Code Annotated Section 39-14-144

8. South Carolina Code Annotated Section 15-75-40

9. West Virginia Code § 61-3A-5

10. New Hampshire Revised Statutes Section 544-C:1