In The Court of Appeals

Rachelle Westerburg as Guardian ad Litem for Robin Forstein,        Appellant,


Cato Corporation,        Respondent.

Appeal From Colleton County
Jackson V. Gregory, Circuit Court Judge

Unpublished Opinion No. 2003-UP-220
Heard September 12, 2002 – Filed March 20, 2003


Ronnie L. Crosby, of Hampton; for Appellant.

Matthew H. Henrikson, of Charleston; for Respondent.

PER CURIAM:  Rachelle Westerburg, as guardian for her daughter, Robin Forstein, appeals the trial judge’s grant of a directed verdict in favor of Cato Corporation.  The trial judge held the merchant, as a matter of law, was not liable on a false arrest cause of action for an investigatory detention by the police.  We reverse and remand.


Forstein, who was about 13 years old at the time, and three friends walked to Cato while the mother of one of the friends was shopping in Wal-Mart in the same strip mall.  Forstein tried on jeans and a blouse, decided not to purchase either, put them back on the racks, and left the store with her friends to return to Wal-Mart.  The Cato store manager did not see Forstein put the blouse back and could not locate it.  The girls left the store quickly, and the manager called the police.  When the officers arrived, the manager accompanied them to Wal-Mart and identified Forstein as the girl she suspected of shoplifting.  The police escorted Forstein outside to the sidewalk, asked her to unzip her jacket, shake out her pants, and show them the money in her pocket.  At their request, she also accompanied them back to Cato and showed them where she put the blouse.  The store manager was present during the investigation and conferred with the police a couple of times but did not speak to Forstein at any point.  The investigatory detention lasted six or seven minutes.  Forstein stated the police were polite in their questioning and did not place her under arrest or accuse her of anything.  Nonetheless, Forstein was crying and visibly upset from the incident.  Since then, she will not try on clothes in a store. 

At the close of the testimony, Cato moved for a directed verdict based on the merchant’s statutory defense. [1]   The trial judge initially denied Cato’s motion.  However, when court convened the next morning, the judge directed a verdict for Cato, holding that because Cato called the police, the statute did not apply, but Cato could not be held responsible for false arrest as a matter of law.


In ruling on a motion for directed verdict, a court must view the evidence and all reasonable inferences in the light most favorable to the non-moving party.  When the evidence yields only one inference, a directed verdict in favor of the moving party is proper.  The trial court can only be reversed by this Court when there is not evidence to support the ruling below.

Swinton Creek Nursery v. Edisto Farm Credit, 334 S.C. 469, 476-77, 514 S.E.2d 126, 130 (1999) (citations omitted).  “In deciding whether to grant or deny a directed verdict motion, the trial court is concerned only with the existence or non-existence of evidence.”  Sims v. Giles, 343 S.C. 708, 714, 541 S.E.2d 857, 861 (Ct. App. 2001); see also Pond Place Partners, Inc. v. Poole, 351 S.C. 1,15, 567 S.E.2d 881, 888 (Ct. App. 2002).  On appeal from the grant of a directed verdict, this court employs the same standard as the trial court.  Weir v. Citicorp Nat’l Servs., Inc., 312 S.C. 511, 515, 435 S.E.2d 864, 867 (1993); Sims, 343 S.C. at 714-15, 541 S.E.2d at 860-61. 


Westerburg argues the circuit court erred in granting Cato’s directed verdict motion because the store manager’s conduct creates a jury question as to whether Cato improperly instigated the false arrest.  Cato asserts no action for false arrest can be maintained where Forstein was lawfully detained by the police, the manager never directly restrained Forstein, no agency relationship existed between Cato and the police, and that any reliance on Wingate v. Postal Telegraph and Cable Company is misplaced.  204 S.C. 520, 30 S.E.2d 307 (1944).  We agree with Westerburg. 

In instigating an arrest or detention, a merchant may open itself to liability.  Whether a merchant has instigated an arrest is a question of fact for the jury.  “Accordingly, a private citizen at whose request, direction, or command a police officer makes an arrest without a warrant is liable if the arrest turns out to be unlawful. . . .”  32 Am.Jur.2d False Imprisonment § 40 (1995).  “[O]ne who instigates [the unlawful confinement of another] is subject to liability to the person confined for the false imprisonment.”  Restatement (Second) of Torts § 45A (1965). 

South Carolina jurisprudence has drawn a fine factual line and has held that a merchant, while not liable for mere reporting, may be liable for instigating an arrest.  The Wingate case, however, contains statements that are somewhat contradictory.

Where a person merely directs the attention of a police officer to what he supposes to be a breach of the peace, or gives to such officer facts indicating such, and the officer, without other direction, arrests the offender on his own responsibility, the person who did nothing more than communicate the facts to the officer is not liable for causing the arrest, even though it is made without a warrant. . . .  “Those who honestly seek the enforcement of the law *** and who are supported by circumstances sufficiently strong to warrant a cautious man in the belief that the party suspected may be guilty of the offense charged, should not be made unduly apprehensive that they will be held answerable in damages.”

But it is equally well settled that where a private person induces an officer by request, direction or command to unlawfully arrest another, he is liable for false imprisonment.  The charge of false imprisonment is not confined to the party who unlawfully seizes or restrains another, but it likewise extends to any person who may cause, instigate or procure an unlawful arrest. 

Wingate, 204 S.C. at 527-28, 30 S.E.2d at 310-11 (citations omitted) (emphasis added).  Cato’s argument, in essence, is that it is shielded from liability because the police officers exercised their own independent judgment in investigating the reported theft without any further input from the manager beyond identifying Forstein as the suspected shoplifter. 

However, Cato’s manager was more involved in the identification and detention than was the messenger boy in Wingate.  In Wingate, the messenger boy reported to the police that the unknown occupant of a vehicle “hollered” at him in a threatening manner.  He was able to get the license tag number of the vehicle, gave it to the police officers, and requested that they investigate.  The following day, Wingate, to whom the vehicle belonged, was arrested on the strength of the report of the vehicle’s license tag, without regard to whether Wingate herself committed the acts complained of.  Id. at 523-25, 30 S.E.2d at 309-10. 

In the instant case, Cato’s manager followed Forstein into Wal-Mart with the officers, pointed out Forstein as the suspect, remained present while the police detained her, and testified at trial that she called the police “to help me identify where my merchandise was.”  This is not merely an instance of a neutral observer reporting a crime, but rather an interested party asking the police to conduct an investigation of a specific person rather than a specific crime.  Cato, and its manager, clearly had a monetary and proprietary interest in recovering or preventing loss of merchandise.  The investigation was initiated solely because of Cato’s manager’s allegations.  This is not the same as a member of the general public observing the commission of a crime and merely making a report to the police.  On these narrow facts, there is little difference between the police detaining Forstein and the manager detaining Forstein herself.  Therefore, taking the evidence in the light most favorable to the non-moving party, sufficient evidence exists to create a jury issue as to whether Cato had reasonable cause in involving the police and having Forstein detained in such a public manner. 

The only duty imposed upon a private citizen is to communicate such facts and information to a police officer as are necessary to allow the officer the opportunity to apprehend the offender.  Any further actions taken by a private citizen must be justified under the circumstances, . . . which brings us to the issue of probable cause.

Gathers v. Harris Teeter Supermarket, Inc., 282 S.C. 220, 228, 317 S.E.2d 748, 753 (Ct. App. 1984) (citations omitted) (emphasis added).  “Any further actions” presumably includes instigating a detention.  Whether the merchant in fact instigated the detention is a jury question.  “[T]he jury could have reasonably inferred that appellant set the proceedings in motion which culminated in the unlawful arrest of respondent and that such arrest was a proximate result of the initial conduct of appellant.”  Wingate 204 S.C. at 529, 30 S.E.2d at 311. 

Considering these facts in the light most favorable to Westerburg, a jury could conclude the merchant was using the police to conduct the sort of investigation contemplated under the provisions of the merchant’s defense statute, and was tantamount to the merchant doing it itself.  If the jury concluded that was indeed the case, then under the merchant’s defense statute (§16-13-140), the question becomes one of reasonableness.  Because a jury question remains whether Cato had reasonable cause to call the police, we reverse the trial judge’s grant of a directed verdict for Cato.  The sole question for the jury to determine is whether Cato’s manager had reasonable cause to call the police without first conducting any further investigation. 

Cato asserts this state’s precedents of Watkins and Bushardt are controlling.  We find these precedents easily distinguishable.  The evidence is adequate to support a permissible inference that the police were called without sufficient investigation, but does not demonstrate the level of willfulness necessary to support malice in an action for malicious prosecution.  Watkins v. Mobil Oil Co., 281 S.C. 79, 313 S.E.2d 641 (Ct. App. 1984); Bushardt v. United Inv. Co., 121 S.C. 324, 113 S.E. 637 (1922).  In Watkins, the plaintiff was arrested by the police pursuant to a warrant.  Likewise in Bushardt, the plaintiff was held in jail overnight based solely on the merchant’s identification of him.  Here, the police made no arrest but merely conducted an investigatory detention, arguably at the store’s direction.  Because the police found no reason to prosecute following their questioning, Forstein’s only viable cause of action would be for false arrest.

Because we reverse based on the issue discussed above, we find it unnecessary to address Westerburg’s remaining issue.



[1]           In any action brought by reason of having been delayed by a merchant or merchant’s employee or agent on or near the premises of a mercantile establishment for the purpose of investigation concerning the ownership of any merchandise, it shall be a defense to such action if:  (1) The person was delayed in a reasonable manner and for a reasonable time to permit such investigation, and (2) reasonable cause existed to believe that the person delayed had committed the crime of shoplifting.

S.C. Code Ann. § 16-13-140 (2003).