                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON


LILLIE MAE MAYS,                    )
                                    )
                                    )
                                                       FILED
             Plaintiff/Appellant,   ) Shelby Circuit No. 66579 T.D.
                                    )                   January 10, 2000
VS.                                 ) Appeal No. W1999-02189-COA-R3-CV
                                    )                  Cecil Crowson, Jr.
FRED’S, INC.,                       )                 Appellate Court Clerk
                                    )
                                    )
             Defendant/Appellee.    )


           APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                       AT MEMPHIS, TENNESSEE
              THE HONORABLE GEORGE H. BROWN,JR., JUDGE




MELANIE M. STEWART
STEWART WILKINSON AND WILSON, PLLC
Memphis, Tennessee
Attorney for Appellant



CAROL M. HAYDEN
McDONALD KUHN
Memphis, Tennessee
Attorney for Appellee




AFFIRMED




                                                      ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
     Lillie Mays appeals from the Shelby County Circuit Court, which granted summary

judgment in favor of the Defendant. For the reasons stated herein, we affirm the trial

court’s decision.



                                  I. Facts and Procedural History



        On June 10, 1994, Lillie Mae Mays (“Plaintiff” or “Appellant”) visited a Memphis area

Fred’s store (“Fred’s”) to purchase a flashlight and batteries. Upon attempting to exit the

store after making her purchase, she passed through a theft detection device, which is

designed to alert store management when merchandise that has not been purchased is

being taken out of the store. When Ms. Mays passed through the device, the alarm

sounded. Ms. Mays was then stopped by store employees and escorted to a room in the

rear of the store.



        Ms. Mays was held in the rear of the store for approximately thirty minutes, during

which time the contents of her purse were searched.1 At some point, a store employee

called the Memphis Police Department. A male officer arrived at the scene, and

subsequently called in a female officer to conduct a search of Ms. Mays. Several times

during the episode, Ms. Mays was escorted to the front of the store where she was made

to pass through the theft detection device.2



        Eventually, the male police officer asked the store manager if he believed Ms. Mays

was concealing stolen property. The manager responded affirmatively. Ms. Mays was

then escorted to a private room in the back of the store where, she alleges, she was

“required to take her clothing off and be searched by the female officer of the Memphis

Police Department, at the insistence of Defendant’s store manager, including her



        1
        The co ntents of M s. May s’ purse were, at s ome p oint, emp tied onto a table. No stolen merchandise
was found.

        2
          According to Ms. Mays’ deposition, she passed through the theft detection device a total of four
times, an d the alarm sound ed eac h time.

                                                      2
underclothing.”   No stolen merchandise was found. Following the strip search, it was

determined that Ms. Mays had a sticker attached to the bottom of her shoe which had

caused the theft detection device to sound the alarm. Ms. Mays was then allowed to leave

the store and no charges were ever filed against her.         The entire incident lasted

approximately two hours.



      As a result of her experience at the Fred’s store, Ms. Mays filed the present action

asserting claims for false imprisonment, outrageous conduct, intentional infliction of

emotional distress, and invasion of privacy. After answering the complaint, the Defendant

filed a motion for summary judgment, arguing that no issues of material fact existed and

that it was entitled to a judgment as a matter of law. On November 20, 1998, the trial

court granted the Defendant’s motion for summary judgment.



      This appeal followed. All of the issues presented by the Appellant center on the

question of whether this case presents genuine issues of material fact such that the

granting of the Defendant’s motion for summary judgment was improper.



                                 II. Standard of Review



      Summary judgment is appropriate only where the moving party demonstrates that

there are no genuine issues of material fact and that he or she is entitled to judgment as

a matter of law. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Tenn. R. Civ. P. 56.04.

We review the summary judgment motion as a question of law in which our inquiry is de

novo without a presumption of correctness. Finister v. Humboldt Gen. Hosp., Inc., 970

S.W.2d 435, 437 (Tenn. 1998); Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997).

We must view the evidence and all reasonable inferences in the light most favorable to the

nonmoving party. Byrd, 847 S.W.2d at 210-11. If both the facts and conclusions to be

drawn therefrom permit a reasonable person to reach only one conclusion, then summary

judgment is appropriate. Robinson, 952 S.W.2d at 426; Bain v. Wells, 936 S.W.2d 618,

622 (Tenn. 1997).

                                            3
                                         III. Law and Analysis



        In response to the allegations contained in the complaint, the Appellee in the

present case presents two alternative arguments. First, Fred’s contends that T.C.A. § 40-

7-116 and Memphis City Ordinance § 20-18 protect their actions in detaining Ms. Mays.3

They assert that the activation of the theft detection device gave them probable cause to

detain Ms. Mays and conduct an investigation into whether she was attempting to steal

merchandise from the store. Ms. Mays concedes that the employees of the Defendant had

probable cause to stop her and investigate. However, she contends that the activation of

the theft detection device did not provide probable cause for the two-hour detention and

strip-search which followed.



        As an alternative basis for the granting of the motion for summary judgment, the

Appellee argues that they are not legally responsible for the two hour detention that

culminated in Ms. Mays being strip-searched. They contend that their employees only

detained Ms. Mays for thirty minutes and that the officers of the Memphis Police

Department, rather than Fred’s employees, were responsible for holding Ms. Mays for the

remainder of the time, as well as for the strip-search which was conducted.



        The first argument advanced by the appellee requires us to consider the latitude

which T.C.A. § 40-7-116 provides merchants in investigating possible shoplifting. The


       3
           In relevant part, this section of the Tennessee Code provides:

                 § 40-7-116. Shoplifting; detention of suspect

                 (a) A merchant or a merchant's employee or agent or a peace officer who
                 has probable cause to believe that a person has committed or is attempting
                 to commit the offense of theft, as defined in § 39-14-103, may detain such
                 person on or off the premises of the mercantile establishment if such detention
                 is done for any or all of the following purposes:
                                                      ....
                 (b) Probable cause to suspect that a person has committed or is attempting to
                 commit the offense of theft may be based on, but not limited to:
                                                       ....
                 (3) Activation of an electronic or other type of mechanical device designed to
                 detect the ft;

         The Memphis City Ordinance also provides immunity to merchants when, having probable cause
to believe that a person has unlawfully taken goods held for sale by the merchant, the merchant detains
the pers on to inve stigate.

                                                      4
second contention involves an analysis of the record to determine whether a genuine issue

of material fact exists regarding Fred’s role in the detention and strip-search of Ms. Mays.



       As an initial matter, we recognize that the activation of a theft detection device

provides a merchant with probable cause under both T.C.A. § 40-7-116 and the equivalent

Memphis City Ordinance. However, the existence of probable cause does not allow the

merchant to exercise unbridled investigative discretion. Quite to the contrary in fact, the

aforementioned Tennessee statute requires that the merchant or the merchant’s employee

act in a “reasonable manner under the circumstances.” Tenn. Code Ann. § 40-7-116(c)(2).

Additionally, the suspected person may only be detained for a “reasonable period of time.”

Tenn. Code Ann. § 40-7-116(c)(3). Therefore, the existence of probable cause in the

present case is not dispositive of Fred’s liability.



       The reasonableness of a particular undertaking, namely the detention and strip-

search in the present case, generally involves a factual determination. That fact weighs

against the dismissal of this case at the summary judgment stage. However, this case

presents an interesting situation in that there is a question as to Fred’s role in the detention

and strip-search of Ms. Mays. Fred’s contends that the officers of the Memphis Police

Department took over upon their arrival and that they were responsible for the additional

detention and strip-search. In short, Fred’s argues that even if reasonable minds could

differ as to whether the detention and strip-search of Ms. Mays was reasonable, as we

believe they could, Fred’s still is not liable because its employees did not cause the

detention or the strip-search. Ms. Mays, on the other hand, asserts that the detention and

strip-search, although conducted by the police officers, was done at the insistence of the

Fred’s store manager.



       As this case was dismissed at an early stage, the record is not well-developed.

Other than the pleadings, the only evidence of the happening is contained in Ms. Mays’

deposition. Our review of that deposition, as well as her complaint, leads us to the

conclusion that Fred’s cannot, under the law, be held liable for the two hour detention and


                                               5
strip-search of Ms. Mays.



        Upon exiting the Fred’s store, Ms. Mays activated the theft detection device. At that

point, it is undisputed that Fred’s employees had probable cause to detain Ms. Mays for

a reasonable time in order to conduct an investigation. According to Ms. Mays, she was

escorted to a room in the back of the store where, at some point, the contents of her purse

were emptied onto a table.4 However, Ms. Mays is clear in her testimony that no employee

of Fred’s ever accused of her of attempting to steal merchandise from the store.5



        Q:       Up to that time, anybody accuse you of stealing anything?
        A:       No.

        Q:       Anybody accuse you of shoplifting?
        A:       Not at that present time.
                                               ...
        Q:       Now, up until the time that this police officer asked you had you ever
                 shoplifted before, had anybody from Fred’s ever said anything to you
                 about shoplifting?
        A:       No.

        Q:       Had anybody from Fred’s ever accused you of shoplifting?
        A:       No.

        Q:       Had anybody from Fred’s ever accused you of stealing anything?
        A:       No.



        It is just as clear that Ms. Mays was held only for a short time prior to the arrival of

the police. In fact, she stated that she was in the back room of the store for only “about

thirty minutes” before the police arrived. Therefore, after activating the theft detection

device, Ms. Mays was escorted to the back of the store where she was held for thirty

minutes. She had the contents of her purse searched by a Fred’s employee. All the while,

she was never accused of stealing, nor were there any actions on the part of the Fred’s

employees which, up to this point, are alleged to be unreasonable.




        4
         It is not clear whether this was done at the urging of a Fred’s employee, or whether Ms. Mays
emptied the purse of her own volition. Ultimately, the discrepancy makes little difference as a search of her
purse would most certainly have been a reasonable investigative measure by Fred’s.

        5
          Ms. Mays’ depos ition testimo ny doe s indicate that, prior to the arrival of the police, an employee of
Fred’s a sked h er whe ther she had ev er shop lifted before.

                                                        6
        The actions which form the basis for Ms. Mays’ complaint occurred after the arrival

of the police officers. She was detained for an additional one and a half hours. She was

apparently escorted, by two separate police officers on two separate occasions, to the front

of the store where she was made to pass through the theft detection device. Finally, she

was subjected to a strip-search in the back of the store. However, it is apparent from the

deposition testimony of Ms. Mays that the Fred’s employees had little, if any, role in what

occurred after the arrival of the police officers.



        Q:       All right. Did anybody at Fred’s saying (sic) anything about searching you?
        A:       No.
        Q:       All the black manager said was that he thought you still had something of
                 his?
        A:       Right.

                                                     ...

        Q:       And nobody at Fred’s said anything about searching?
        A:       No.



        While one cannot help but sympathize with Ms. Mays, taking her deposition

testimony as true and casting all inferences in her favor leads us to the conclusion that

summary judgment was properly granted in favor of Fred’s. At the most, Fred’s store

manager provided information to the police officer which led the police to conduct the strip-

search. However, as the Appellee points out, merely providing information to a police

officer will not render that person liable. Hertzka v. Ellison, 8 Tenn. App. 667 (Tenn. Ct.

App. 1928).6 Simply put, even if it were determined that the detention and strip-search

were unreasonable, there is no factual basis upon which to conclude that Fred’s is

responsible.




        6
           The Appellant argues that Hertzka is not applicable because it speaks in terms of an individual
providing informatio n which leads to a n arrest. Although there was no arrest in the present case, we consider
the logic of the Hertzka decision to be app licable in the p resent s ituation.

                                                      7
                                     Conclusion

      For the foregoing reasons, we affirm the judgment of the trial court granting the

Defendant’s motion for summary judgment.       Costs of this appeal are taxed to the

Appellant, Lillie Mae Mays, for which execution may issue if necessary.




                                                      HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




FARMER, J.




                                           8
