                         MISSOURI COURT OF APPEALS
                             WESTERN DISTRICT


DEBORAH BARKLEY,                                 )
                                                 )   WD75944
                     Appellant,                  )
                                                 )   OPINION FILED:
   v.                                            )
                                                 )   April 15, 2014
MCKEEVER ENTERPRISES, INC.                       )
D/B/A PRICE CHOPPER,                             )
                                                 )
                    Respondent.                  )


             Appeal from the Circuit Court of Jackson County, Missouri
                       Honorable James F. Kanatzar, Judge

                       Before Division One: Alok Ahuja, P.J.,
                   Thomas H. Newton, and Anthony R. Gabbert, JJ.

                                            Summary

        Ms. Deborah Barkley appeals the judgment entered in favor of McKeever Enterprises,

Inc. d/b/a Price Chopper after a jury trial. We affirm.

                              Factual and Procedural Background

        In May 2009, Ms. Barkley was shopping for items for a family barbecue at Price Chopper

with her husband, Mr. James Barkley, and three granddaughters.              Ms. Barkley and a

granddaughter went to shop for strips to match her glucose meter. As she searched for them, Ms.

Barkley grabbed other items, including notebooks and a tube of children’s toothpaste, and placed

them into a red reusable bag. She then placed the red bag on the shoulder shared with her purse

and used her free hand to carry a bag with several reusable bags inside of it. Shortly thereafter,

                                                 1
they reconnected with Mr. Barkley and the other grandchildren and walked to the register. As

Mr. Barkley placed items from the cart on the conveyor belt, Ms. Barkley walked around the

register. She then handed the sacker the reusable bags, but the red one remained on her shoulder

with the purse. After paying for the groceries, they proceeded to the exit.

        Store security officers, Mr. Jason Herrington and Mr. Cody Millard, had been observing

Ms. Barkley on the store’s surveillance videos. They stopped her in the vestibule area. Ms.

Barkley’s red bag and purse were taken from her, and Mr. Herrington escorted her to the security

office. Mr. Millard told Mr. Barkley that Ms. Barkley had been detained for shoplifting. Mr.

Barkley reentered the store with his purchased groceries and granddaughters and sat in front of

the customer service area. The security office was in close proximity to the customer service

area.

        Ms. Barkley, Mr. Millard, and Mr. Herrington entered the security office, along with Ms.

Derica Davidson, a customer service employee who accompanied them per Price Chopper’s

policy for female suspects. On one side of the office was a counter with monitors that extended

along the wall; the other side had a door, a file cabinet next to it, a bench, and another file

cabinet adjacent to another door. Mr. Herrington pointed to the bench and told Ms. Barkley to sit

down, and Ms. Barkley complied. Mr. Herrington emptied the red bag and then her purse on the

counter and inspected most of the items in the purse. Mr. Herrington placed her items back into

the purse, except for her medications and driver’s license.

        At some point, Ms. Barkley left her seat and walked over to where Mr. Herrington was

speaking to Ms. Davidson; their backs were to her. Mr. Millard told Ms. Barkley to return to the

bench; she continued to approach, and he did not try to stop her. Mr. Herrington and Ms.

Davidson did not hear Mr. Millard’s statement and continued to talk.



                                                 2
       Upon realizing Ms. Barkley was behind him, Mr. Herrington immediately grabbed Ms.

Barkley’s arm to handcuff her. Ms. Barkley verbally and physically resisted. Mr. Herrington

then twisted her into a file cabinet, as he pulled her arms behind her back, and placed on one

handcuff. Ms. Barkley allegedly complained of ―pain or some sort of discomfort,‖ so he released

the handcuff, moved her arms to the front, and handcuffed her. He secured the lock, pointed to

the bench, and told Ms. Barkley to sit down. Ms. Barkley refused, and Mr. Herrington reached

out to guide her to the bench. Ms. Barkley immediately stepped back and went for the door.

       Ms. Barkley was able to open the door slightly. Mr. Herrington grabbed her from behind,

using some of his strength to pull her hands off the doorknob. Mr. Millard ran over to help him.

Mr. Herrington then took his foot and contacted Ms. Barkley’s legs, which brought her legs out

from underneath her and she fell on the floor. Ms. Davidson just watched and closed the door.

After struggling with her, Mr. Herrington penned Ms. Barkley to the floor as the handcuffs were

moved to the back. Although Mr. Millard was ready to assist, Mr. Herrington single-handedly

yanked Ms. Barkley up. Ms. Barkley’s legs did not reach the standing position; Mr. Herrington

released her into an awkward sitting position on the floor.

       After Mr. Millard and Mr. Herrington completed their tasks, about ten minutes later, Mr.

Herrington removed the handcuffs from the back to the front. Thereafter, both men lifted her off

of the floor and walked a limping Ms. Barkley to the bench. A police officer entered the office

about eight minutes later. Ms. Barkley eventually was escorted out.

       Subsequently, Ms. Barkley filed a multi-count petition for damages against Price

Chopper. Under the false imprisonment claim, she alleged that Price Chopper through the

store’s employees, had ―intentionally restrained‖ her against ―her will,‖ during which she was

―verbally and physically injured . . . unlawfully searched, . . . [and] was caused to suffer great



                                                 3
pain and anxiety.‖ Under the battery claim, she alleged that Price Chopper had ―intentionally

pushed, pulled, restrained, handcuffed, struck, kicked, grabbed, and tackled [her], and thereafter

forced her to remain sitting on her knees on the floor in an abnormal position.‖ In addition to

pain and suffering damages, Ms. Barkley sought punitive damages on the ground that Price

Chopper’s conduct was ―outrageous and in conscious disregard for [her] rights and interests.‖

        In October 2012, a jury trial was had. During the trial, the above facts were adduced

through the store’s surveillance video clips. Because there was no audio for the clips, Ms.

Barkley and the employees testified as to what was said and done while in the security office.

Mr. Barkley and one of the store’s owners, Mr. Gary McKeever, testified to other matters.

Portions of a deposition statement from Ms. Tracey Hugunin, the head of store security, were

read to the jury. Additionally, portions from the deposition of Dr. Marjon Gillbanks, M.D., Ms.

Barkley’s former doctor, were read into evidence, some over Ms. Barkley’s timely objection. At

the close of Price Chopper’s case, Ms. Barkley offered evaluations of Mr. Herrington reporting

his similar behavior with other customers, dated before and after the incident, as rebuttal

evidence in support of her punitive damages claim. The trial court excluded the evidence. It

also excluded a lawsuit against Price Chopper based on similar conduct by different security

officers.

        Only the battery and false imprisonment claims were submitted to the jury. At the jury

instructions conference, Ms. Barkley objected to Price Chopper’s proffered battery instruction

providing an affirmative defense against the battery claim and to the affirmative defense

instruction. Ms. Barkley argued that the affirmative defense instruction was improper because

the law did not support it, and thus, the battery instruction was improper for referencing it. The

court approved the defense and submitted Instructions 9 and 10 to the jury.



                                                4
       The jury returned verdicts favorable to Price Chopper on both counts. Ms. Barkley filed

a motion for a new trial, which the trial court denied. The trial court then entered a judgment

reflecting the verdicts.   Ms. Barkley appeals, challenging certain jury instructions and the

admission and exclusion of certain evidence.

                                      Standard of Review

       Our review in determining whether a jury was properly instructed is de novo. Doe v.

Quest Diagnostics, Inc., 395 S.W.3d 8, 13 (Mo. banc 2013).             Instructions are rejected or

submitted based on the law and the evidence in the case. Rule 70.02(a). We view the evidence

and inferences in the light most favorable to the submission of an instruction. McGuire v.

Kenoma, LLC, 375 S.W.3d 157, 164 (Mo. App. W.D. 2012). An erroneous instruction only

results in a reversal for a new trial when it is prejudicial. Doe, 395 S.W.3d at 13. Prejudicial

means that ―the error materially affects the merits by misdirecting, misleading, or confusing the

jury.‖ Id.

       We review the admission or the exclusion of evidence for an abuse of discretion. See

McGuire, 375 S.W.3d at 164. ―The trial court abuses its discretion when its ruling is clearly

against the logic of the circumstances then before the trial court and is so unreasonable and

arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate

consideration.‖ Id. (internal quotation marks and citation omitted).

                                         Legal Analysis

       In her first point, Ms. Barkley argues that the trial court erred in rejecting her proposed

verdict director for the battery claim, which did not reference an affirmative defense, and instead

submitting Price Chopper’s Instruction 9, a verdict director that did reference an affirmative

defense, and submitting Instruction 10, the affirmative defense, itself. Ms. Barkley claims that


                                                5
Rule 70.02 was violated because her proposed verdict director ―was applicable to [her] battery

claim and thus was required to be given to the exclusion of any other instructions on the same

subject‖ and because the submitted Instructions 9 and 10 asked the jury to find for Price Chopper

―if it believed that [Price Chopper] used reasonable force to prevent [Ms. Barkley] from fleeing

the Loss Prevention Office and such facts do not constitute a defense to battery under the

applicable law.‖ She further claims that the submission of the instructions ―thereby misstated the

applicable law, misdirected the jury and misled the jury resulting in prejudicial error.‖

           Ms. Barkley argues that there is no defense to batteries committed against a suspected

shoplifter after the property is recovered and after a merchant’s investigation has concluded. We

disagree.

           In arguing that a merchant’s privilege to detain a suspected shoplifter is limited to the

recovery of the property and the investigation of the theft, Ms. Barkley relies on Teel v. May

Department Stores Co., 155 S.W.2d 74, 78 (Mo. 1941), and subsections 2 and 3 of section

537.125. Section 537.125,1 in relevant part, states:

           2. Any merchant, his agent or employee, who has reasonable grounds or probable
           cause to believe that a person has committed or is committing a wrongful taking
           of merchandise or money from a mercantile establishment, may detain such
           person in a reasonable manner and for a reasonable length of time for the purpose
           of investigating whether there has been a wrongful taking of such merchandise or
           money. Any such reasonable detention shall not constitute an unlawful arrest or
           detention, nor shall it render the merchant, his agent or employee, criminally or
           civilly liable to the person so detained.

           3. Any person willfully concealing unpurchased merchandise of any mercantile
           establishment, either on the premises or outside the premises of such
           establishment, shall be presumed2 to have so concealed such merchandise with the
           intention of committing a wrongful taking of such merchandise within the

1
    Statutory references are to RSMo 2000.
2
  This provision is a rebuttable presumption. See Schwane v. Kroger Co., 480 S.W.2d 113, 118-19 (Mo. App.
1972).


                                                   6
          meaning of subsection 1, and the finding of such unpurchased merchandise
          concealed upon the person or among the belongings of such person shall be
          evidence of reasonable grounds and probable cause for the detention in a
          reasonable manner and for a reasonable length of time, of such person by a
          merchant, his agent or employee, in order that recovery of such merchandise may
          be effected, and any such reasonable detention shall not be deemed to be
          unlawful, nor render such merchant, his agent or employee criminally or civilly
          liable.

(emphasis and footnote added).

          Enacted in 1961, section 537.125 is deemed the codification of the merchant’s privilege

announced in Teel, with certain limitations. See Helming v. Adams, 509 S.W.2d 159, 166 (Mo.

App. 1974). In Teel, our supreme court decided that a merchant’s continued detention of the

plaintiff was improper because the merchant’s employee compelled the detention until the

plaintiff and her companion signed criminal confessions that he had written. 155 S.W.2d at 79.

The supreme court specifically hypothesized that had the employee compelled the detention to

hold the plaintiff for authorities, it would have been lawful, if done without unreasonable delay.

Id. at 79-80. The Teel court cited secondary sources, which referenced the common law right of

a private citizen to make a warrantless arrest of a person3 who in fact committed a crime, with no

liability for false imprisonment, if soon thereafter the citizen attempts to deliver that person to

the authorities. Id. at 79. The merchant’s privilege is a modification of that right; in cases in

which an arrest of a person who was not guilty in fact is made, a merchant is exempt from

liability if the merchant had probable cause to make the arrest. See Caverton v. J.C. Penny Co.,

651 S.W.2d 608, 610 (Mo. App. E.D. 1983) (explaining the merchant’s privilege in section

537.125 in relation to the common law right of citizen warrantless arrest); Helming, 509 S.W.2d

at 166. Thus, Teel does not support Ms. Barkley’s narrow interpretation of the merchant’s

privilege.


3
    This common law right has been codified in the Missouri Revised Statutes at section 563.051.

                                                   7
       Clearly, the merchant’s privilege includes detaining an individual for a reasonable

amount of time to release him or her to the authorities after a complete investigation. Other

jurisdictions with statutes similar to ours have found that the privilege includes a right to detain

for the police after recovery of the items and an investigation. See Jacques v. Sears, Roebuck &

Co., 285 N.E.2d 871, 874, 876 (N.Y. 1972); Cooke v. J. J. Newberry & Co., 232 A.2d 425, 427-

28 (N.J. Super. App. Div. 1967). We believe a fair reading of section 537.125 shows the

legislature’s intent to codify this purpose in subsection 4:

       Any merchant, his agent or employee, who has reasonable grounds or probable
       cause to believe that a person has committed a wrongful taking of property, as
       defined in this section, and who has detained such person and investigated such
       wrongful taking, may contact law enforcement officers and instigate criminal
       proceedings against such person. Any such contact of law enforcement authorities
       or instigation of a judicial proceeding shall not constitute malicious prosecution,
       nor shall it render the merchant, his agent or employee criminally or civilly liable
       to the person so detained or against whom proceedings are instigated.

(emphasis added).

       To read subsection 4 as to provide protection against a claim for malicious prosecution

for instigating a criminal proceeding or contacting law enforcement only after the release of a

suspect would not give effect to the italicized language, and we must give effect to all of the

statutory language. See Herschel v. Nixon, 332 S.W.3d 129, 134 (Mo. App. W.D. 2010). Thus,

under section 537.125, a merchant with probable cause to believe a person has wrongfully taken

property may detain a suspect (1) to reasonably recover property without unreasonable delay, (2)

to reasonably investigate the matter without unreasonable delay, or (3) to release the person to

the authorities without unreasonable delay.

       The issue now becomes a question of what physical force, if any, by a merchant is

allowable in a continued detention. Teel and other Missouri case law addressing the merchant’s

privilege are silent as to whether force is permissible in these circumstances. Section 537.125

                                                  8
arguably addresses the issue with the broad language: ―may detain . . . in a reasonable manner.‖

See Caverton, 651 S.W.2d at 610 (suggesting that the use of unreasonable force used to effect a

detention became an element for a false imprisonment claim with the enactment of section

537.125); Peak v. W. T. Grant Co., 386 S.W.2d 685, 692-93 (Mo. App. 1964) (suggesting

section 537.125 would have been available to the merchant as an affirmative defense to

plaintiff’s action for false arrest and imprisonment for forcible detention resulting in injuries to

plaintiff had the merchant suspected plaintiff of a wrongful taking). The statute, however, does

not provide a guide as to what type of force would constitute detention in a ―reasonable manner.‖

We thus look to other law on the subject matter to construe under what circumstances the use of

physical force is lawful during a continued detention.

        Similar to the Missouri statute, other jurisdictions, such as Arizona, provide in their

merchant privilege statutes that any detention of a suspected shoplifter must be done in a

―reasonable manner.‖4 Arizona has adopted Comment (h) to section 120A of the Restatement

(Second) of Torts in determining what force used by a merchant constitutes detention in a

―reasonable manner.‖ Gortarez v. Smitty’s Super Valu, Inc., 680 P.2d 807, 814-15 (Ariz. 1984).

Comment (h) states:

           Reasonable force may be used to detain the [suspect]; but . . . the use of force
        intended or likely to cause serious bodily harm is never privileged for the sole
        purpose of detention to investigate, and it becomes privileged only where the
        resistance of the other makes it necessary for the actor to use such force in self-
        defense. In the ordinary case, the use of any force at all will not be privileged
        until the other has been requested to remain; and it is only where there is not time
        for such a request, or it would obviously be futile, that force is justified.

Id. We adopt this comment in its entirety and protect a merchant’s use of reasonable force to

continue the detention of a suspect, after a request has been made for the suspect to remain

4
 See also Dillard Dep’t Stores, Inc. v. Silva, 148 S.W.3d 370, 372 (Tex. 2004) (finding the unwarranted commission
of a battery during the detention made the detention unreasonable).


                                                        9
unless time does not permit a request or such request would be futile. ―[T]he privilege is

meaningless if reasonable force cannot be used. It makes no sense to assume that shoplifters

caught in the act will simply comply with a request to wait for the police to arrive.‖

Commonwealth v. Rogers, 945 N.E.2d 295, 306 (Mass. 2011).

        Consequently, Price Chopper, as a merchant, was allowed to use physical force in the

continued detention of Ms. Barkley, and thus had an available affirmative defense against a

battery claim. Ms. Barkley’s first point is denied.5

        In the second point, Ms. Barkley argues that the trial court erred in submitting Instruction

10 because the evidence did not support the submission. Ms. Barkley claims that competent and

substantial evidence did not support its submission because it ―hypothesized that all of the

batteries inflicted upon [her] were [done so] after and as a result of her alleged attempt to flee the

loss prevention office when in fact the evidence showed that numerous batteries were inflicted

upon her before the alleged attempt to flee.‖

        At trial, Ms. Barkley objected to Instruction 10 because ―it submit[ted] inapplicable and

inappropriate defenses to [her] battery claim. It misstate[d] the law with respect to [her] battery

claim and the law with respect to defenses to battery.‖ She further objected to the Instruction

―because it [wa]s not supported by the evidence and [misled] the jury as to the law and the




5
  Although the dissent apparently does not disagree with our construction of the scope of the
privilege afforded by section 537.125.2, the dissent argues that Instruction 10 was improperly
modified and prejudicial because it failed to identify the alleged t heft as the ―unlawful act‖ in
paragraph First. According to the dissent, the theft is the only justification for the use of force under
the merchant’s privilege pursuant to section 537.125.2. This is directly contrary to our conclusion
that a merchant also is privileged to use physical force in a continued detention. It was the use of
force for that purpose that was in question here, making it illogical to posit in Paragraph First Ms.
Barkley’s ―alleged theft‖ and not her refusal to sit down and attempt to flee the office though
instructed to remain. More to the point, Ms. Barkley does not raise the issue raised by the dissent in
her points on appeal or arguments. Rather, Ms. Barkley’s appellate argument is that there was no
affirmative defense to the alleged batteries committed against her, not that the wording of Instruction
10 was improper in the manner described by the dissent.

                                                   10
evidence.‖ She specifically stated that the facts of the case did not support a submission of MAI

32.10.

         ―Where an alleged error on appeal relating to an instruction differs from the objections

made to the trial court, the error may not be reviewed on appeal.‖ Giddens v. Kansas City S. Ry.

Co., 29 S.W.3d 813, 823 (Mo. banc 2000). Because Ms. Barkley raises a different challenge to

Instruction 10, she did not preserve this claim of error. We have discretion to exercise plain

error review of instructional error. Sasnett v. Jons, 400 S.W.3d 429, 437 (Mo. App. W.D. 2013)

(internal quotation marks and citation omitted). We decline plain error review. Ms. Barkley’s

second point is denied.

         Ms. Barkley’s third and fourth points challenge the admission and the exclusion of

evidence, respectively. The trial court has broad discretion in admitting or excluding evidence.

Westerman v. Shogren, 392 S.W.3d 465, 472 (Mo. App. W.D. 2012). Erroneous admission of

evidence is reversible error only when it results in prejudice that affects the trial outcome.

Peterson v. Progressive Contractors, Inc., 399 S.W.3d 850, 869 (Mo. App. W.D. 2013).

         Specifically, in her third point, Ms. Barkley argues that the trial court erred in admitting,

over her timely objection, evidence that her former doctor wrote release letters to excuse her

from jury duty at her request because it was legally irrelevant. She claimed that any ―probative

value . . . was outweighed by its prejudic[ial effect] of alienat[ing] and foster[ing] resentment by

the Jurors who were serving‖ and that the evidence did result in prejudicing her ―right to a fair

and impartial Jury.‖ She also argued that it was improper character evidence.

         At trial, Ms. Barkley objected before the deposition statements were read to the jury,

stating that the evidence was ―not probative to any issue‖ but was ―highly prejudicial.‖ The trial

court ruled that the evidence was admissible because it believed that it could not ―stop‖ Price



                                                  11
Chopper from presenting evidence to ―buttress‖ the damages issue, despite Ms. Barkley’s

previous testimony of her preexisting physical limitations. But it ordered Price Chopper not to

use it to argue Ms. Barkley’s veracity (that she made up the condition to get out of jury service).

       Price Chopper’s attorney read testimony from Dr. Gillbanks, Ms. Barkley’s once long-

standing doctor, that Ms. Barkley called her office in February 2007 ―to get out of jury duty.‖

The attorney read the following physical limitations that the doctor wrote in the release letter:

―She is on disability because of musculoskeletal problems, [and] she is unable to sit comfortably

for any length of time.‖ The attorney continued to read the letter, highlighting that the doctor

wrote that ―[Ms. Barkley] spent a lot of time in bed and in a recliner, and sitting on a jury would

not be conducive to her good health.‖ The doctor confirmed that the letter expressed her opinion

at the time. The attorney then asked the doctor about another time she wrote a release letter from

jury duty in 2011. The doctor again confirmed that the letter expressed her opinion of her

condition, agreeing with the attorney that Ms. Barkley’s condition in 2011 was similar to that in

2007—she could not sit for long periods without experiencing pain.              During its closing

argument, Price Chopper alluded to Ms. Barkley’s failure to perform her jury duty when its

attorney thanked the jurors for ―honor[ing] [their duty] and . . . [not] try[ing] to get out of it.‖

Ms. Barkley failed to object.

       Ms. Barkley claims that the letters she obtained from her doctor to secure an excuse from

jury duty twice were not logically relevant because cumulative evidence had already been

admitted showing the nature and extent of her injuries in addition to her medical history, and

parts of the same doctor’s testimony confirmed her testimony. Price Chopper claims that the

evidence was probative in that it ―documented the seriousness of [Ms.] Barkley’s preexisting

condition.‖ It further argues that the jury duty excuse letters ―provided context for how [Ms.]



                                                12
Barkley’s preexisting condition affected her physical abilities prior to the incident so that the jury

could weigh an appropriate damage award for personal injuries if liability for battery was

determined in [her] favor.‖

       In personal injury claims, evidence of a plaintiff’s health and physical condition proving

or disproving the nature and extent of the alleged injuries received is admissible. Eickmann v. St.

Louis Pub. Serv., Co., 323 S.W.2d 802, 806 (Mo. 1959). However, any parts of the various

medical items can be excluded for irrelevancy. Allen v. St. Louis Pub. Serv. Co., 285 S.W.2d

663, 667 (Mo. 1956). The same limitation applies to live testimony about these medical records.

Id. at 683 (stating that a written medical opinion in a record should receive same regard as an

opinion from the witness stand).

       Accordingly, Price Chopper had the right to present evidence on the damages issue. We

cannot say that the evidence’s prejudicial effect outweighed its probative value as a matter of

law. Although the excuse letters may have placed Ms. Barkley in a negative light, especially

with Price Chopper’s clever use of the evidence in thanking the jurors for their service, we

cannot conclude that the trial court abused its discretion in admitting the evidence.            Ms.

Barkley’s third point is denied.

       As to her fourth point, Ms. Barkley argues that the trial court erred in excluding evidence

of reprimands as to Mr. Herrington’s similar conduct before and after the incident and the court

file ―containing evidence of a separate claim against [Price Chopper]‖ because the evidence was

competent, material, and relevant as to the issue of punitive damages. We do not need to address

this issue. Our denial of points one and two essentially affirmed the jury’s verdict denying

compensatory damages thereby this issue is mooted. See Blue v. Harrah’s N. Kansas City, LLC,

170 S.W.3d 466, 474 (Mo. App. W.D. 2005) (stating punitive damages are available only if



                                                 13
actual or nominal damages are awarded). Accordingly, Ms. Barkley’s fourth and final point is

denied as moot.

                                            Conclusion

       Therefore, we affirm the judgment.


                                                    /s/THOMAS H. NEWTON
                                                    Thomas H. Newton, Judge


Thomas H. Newton, Judge, writes for the majority. Alok Ahuja Presiding Judge,
concurs.

Anthony R. Gabbert, Judge, writes a dissent.




                                               14
                                        In the
                            Missouri Court of Appeals
                                    Western District


                                           
DEBORAH BARKLEY,                           
              Appellant,                    WD75944
                                            FILED: April 15, 2014
v.                                         
                                           
McKEEVER ENTERPRISES, INC.                 
  d/b/a PRICE CHOPPER,                     
                                           
             Respondent.                   
                                           


                              DISSENTING OPINION


      I respectfully dissent. I would find that the circuit court erred in submitting

Instructions Number 9 and Number 10 to the jury. Price Chopper pled in its Answer

to Plaintiffs’ Amended Petition under ―Affirmative Defenses‖ that Pri ce Chopper was

entitled to the ―mercantile privilege defense‖ pursuant to Section 537.125.2, RSMo

2000. However, Instruction 10, which set forth this defense to the jury, does not

follow Section 537.125.2 and, as written, would have misdirected, misled an d

confused any reasonable juror.

      As set forth in the majority’s opinion, Section 537.125.2 allows for any

merchant who has reasonable grounds or probable cause to believe that a person has


                                           1
committed or is committing a wrongful taking of merchandise or mo ney from a

mercantile establishment to detain such person in a reasonable manner and for a

reasonable length of time for the purpose of investigating the perceived wrongful

taking. The statute provides that ―[a]ny such reasonable detention shall not const itute

an unlawful arrest or detention, nor shall it render the merchant, his agent or

employee, criminally or civilly liable to the person so detained.‖ As Section

537.125.2 does not mention the use of physical force, any defense to use of force

must be viewed through the lens of whether the force used constituted a reasonable

detention for the purpose of investigating the perceived theft. Therefore, without

conceding that MAI 32.10 is even appropriate on the facts of this case, even if MAI

32.10 could be modified pursuant to Rule 70 1 for use with the merchant’s defense as

set forth in Section 537.125, the unlawful act that must be described in the instruction

pursuant to Section 537.125.2 is the act of a wrongful taking. The template for MAI

32.10, titled ―Battery Actions-Resisting Invasion of Property,‖ is as follows:

        Your verdict must be for defendant if you believe:

        First, plaintiff attempted to (here describe unlawful act such as “enter
        defendant’s home” or “take defendant’s property”) when plaintiff had
        no right to do so, and

        Second, defendant (here describe defensive measures such as “struck
        plaintiff”) for the purpose of resisting plaintiff’s attempt, and

        Third, defendant used only such force as was reasonable and necessary
        to prevent plaintiff from (here repeat act described in Paragraph First).


        1
         ―Rule 70 contemplates the frequent situations in which no MAI is applicable and provides
for modification of an existing MAI or drafting of a ―not-in-MAI‖ instruction.‖ Peel v. Credit
Acceptance, 2013 WL 2301095 *5 (Mo. App. 2013). ―The test of a modified MAI or not -in-MAI
instruction is whether it follows the substantive law and can be readily understood by the jury.‖ Id.
The giving of an instruction in violation of Rule 70.02 ―shall constitute error, its prejudicial effect to
be judicially determined, provided that objection has been timely made pursuant to Rule 70.03.‖
Rule 70.02(c).

                                                    2
      Here, the ―unlawful act[s]‖ described to the jury through the modified MAI

32.10 in Instruction 10 were that ―Barkley either refused to follow the Defendant’s

Loss Prevention Officers’ instructions or attempted to flee the Loss [P]revention

Office.‖ The alleged theft, which would have been the only justification for the

mercantile privilege defense pursuant to Section 537.125.2, is not mentioned in the

instruction. This is error. While Section 537.125.2 may have allowed Price Chopper,

without liability, to reasonably detain Barkley in a reasonable manner to investigate

the possible theft, Section 537.125.2 does not provide for detention of a customer

because they refuse to follow merchant instructions or attempt to leave a store. This

is prejudicial error because it alters the standard by which the jury considers

reasonableness and reasonableness is a principal element of the Section 537.125.2

mercantile privilege defense.

      As Instruction Number 10 is written, an average juror would not properly

understand that Price Chopper’s reasonableness must be based on its actions in

detaining Barkley for a wrongful taking, not in detaining Barkley for refusals or

attempted flight. Logically, more force may be necessary to detain someone from the

crime of fleeing, if it were a crime, than to detain someone for investigation of a

theft. Consequently, a jury could conceivably conclude that the force used to keep an

individual from fleeing was reasonable, but that same force was unreasonable in the

context of investigating a theft. Clearly, detention refusal and/or flight are proper

considerations for the jury when addressing the overall reasonableness of the

detention for theft pursuant to Section 537.125.2. However, by improperly

designating Barkley’s crime as refusing to follow instructions and attempting to flee,



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instead of theft, Instruction Number 10 does not follow the substantive law of Section

537.125.2 and prejudicially alters the jury’s focus.

      The majority creates a new test that future juries must now decipher before

making a reasonableness determination – whether or not there was a request to

remain, whether or not there was time for such a request, whether such a request

would have been futile. Our present law and Section 537.125.2 already sufficiently

encompass these specific reasonableness inquiries by leaving to the fact finder’s

determination, upon proper instruction, whether the method and manner of detention

was reasonable in light of the circumstances. The majority acknowledges that

Section 537.125.2 already addresses whether force is permissible with use of the

broad language: ―may detain . . . in a reasonable manner.‖ Yet, the majority goes on

to provide a guide as to what constitutes ―reasonable‖ force. I find it unnecessary to

define allowable force in mercantile detentions because, prior to considering the

mercantile privilege defense to battery, the jury must first find that an intended,

offensive bodily contact occurred. Clearly, if the jury has determined that an

intended, offensive bodily contact occurred, force can be presumed. It is then for the

jury to decide whether the offensive bodily contact resulted from the merchant’s

reasonable detention of the offended party for a theft investigation pursuant to

Section 537.125.

      The issue here is whether the court erred in giving Instruction Number 10 in

conjunction with Instruction Number 9 because the instructions failed to follow

substantive law and misled the jury. Because Instruction Number 10 does not follow

substantive law with regard to Price Chopper’s Section 537.125.2 mercantile



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privilege defense, it was error to submit it to the jury. Because Instruction Number

10 misleads and confuses a reasonable juror into considering reasonableness under an

improper lens, the error is prejudicial and I would reverse.



                                               /s/ ANTHONY REX GABBERT
                                               Anthony Rex Gabbert, Judge




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