Niessel v. Meijer, Inc.

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2001-Ohio-8645

Case Date: 12/17/2001

Plaintiff: Niessel

Defendant: Meijer, Inc.

Preview:[Cite as Niessel v. Meijer, Inc., 2001-Ohio-8645.]

IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY

MARK J. NIESSEL, et al.,

: CASE NO. CA2001-04-027 O P I N I O N 12/17/2001

Plaintiffs-Appellants, : : - vs : MEIJER, INC., Defendant-Appellee. : :

Leppla Associates, Gary J. Leppla, 2100 S. Patterson Blvd., P.O. Box 612, Dayton, Ohio 45409, for plaintiffs-appellants, Mark and Jennifer Niessel Green & Green, Jane M. Lynch, Fifth Third Center, Suite 950, Dayton, Ohio 45402-1769, for defendant-appellee

VALEN, J.

Plaintiff-appellants, Mark J. Niessel and Jennifer

Niessel, appeal from a Warren County Court of Common Pleas judgment granting summary judgment in favor of defendant-appellee, Meijer, Inc. ("Meijer").1 The trial court's decision is affirmed in part,

reversed in part, and remanded for further proceedings. On December 9, 1998, Mr. Niessel was stopped by Middletown
1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar and place it on the regular calendar for purposes of issuing this opinion.

Warren CA2001-04-027 police shortly after shopping at the Meijer store located in Middletown. Looking for stolen Meijer merchandise, police officers

searched Mr. Niessel and his vehicle, but no such merchandise was found. Subsequently appellants filed a lawsuit against Meijer,

alleging false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium. The Middletown Police Department was not joined as a

party to the lawsuit. After deposing Mr. Niessel, Meijer filed a motion for summary judgment. Subsequently, appellants' counsel deposed two Meijer

employees and three members of the Middletown Police Department. The depositions filed for consideration of summary judgment included the following testimony: Mr. Niessel testified that he went to Meijer to purchase a birthday gift for his sister. At the toy department, Mr. Niessel After making this

bought a bag designed to carry in-line skates.

purchase, Mr. Niessel went to the compact disc ("CD") section and found a CD that he also wanted to buy for his sister. the CD and went to the front of the store to checkout. He selected Mr. Niessel

testified that when he saw that there were ten or twelve people standing in each checkout line, he returned to the counter in the toy department to see if he could pay for it there. Mr. Niessel

testified that because no one was there to help him, he decided to return the CD to the place where he had found it and exited the store. day. As Mr. Niessel left, the greeter told him to have a nice

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Warren CA2001-04-027 Mr. Niessel testified that he walked through the parking lot and got into his 1993 red Chevy Blazer. ing space and pulled out of the aisle. He backed out of his parkMr. Niessel testified that

he then stopped his vehicle and reached down to remove the receipt from the skate bag and put it in his wallet. Mr. Niessel left the

parking lot, turned right and stopped at the second traffic light, waiting to turn left onto Route 122. After the traffic light

turned green, Mr. Niessel made the turn and was immediately stopped by an officer of the Middletown Police Department. officer parked in front of Mr. Niessel's vehicle. Mr. Niessel testified that he was told to roll my window down, put my hands out the window, drop my keys, [and] open the door with my right hand keeping my left hand out of the window. And as soon as I stepped out of the door, both officers grabbed me and told me to put my hands on the vehicle. Mr. Niessel put his hands on the vehicle, and the officers kicked his legs apart and frisked him. Mr. Niessel testified that he Mr. Niessel asked A second police

"felt like [he] was in a scene from Cops ***."

the officer "what this was all about" and an officer told Mr. Niessel that he was "suspected of shoplifting from Meijer's." Mr. Niessel testified that he told the officer that he had purchased something from Meijer and that the bag was in his vehicle and the receipt was in his wallet. Mr. Niessel offered the offiAn officer went to the

cers his receipt and his identification.

passenger side of Mr. Niessel's vehicle, opened the door, and retrieved the bag. After obtaining the bag, the officer searched In the meantime, a third Middletown police - 3 -

Mr. Niessel's vehicle.

Warren CA2001-04-027 officer arrived. Mr. Niessel was told that he had to wait until A

the Meijer associates arrived before he would be free to leave. fourth Middletown police officer stopped at the scene.

Mr. Niessel testified that when the Meijer associates finally arrived, one of them "high-fived" one of the police officers. Observing the woman's actions, Mr. Niessel believed that she was saying something like "we got him." Mr. Niessel began walking

toward the Meijer associates because he was upset, but he was stopped by a police officer and told that he could not confront them. Mr. Niessel testified that he was agitated and wanted an

apology. Mr. Niessel testified that after the officers spoke with the Meijer associates, Mr. Niessel was asked for permission to search his vehicle again. search. The officer did not find anything during this

Mr. Niessel asked whether Meijer was going to apologize.

Mr. Niessel testified that the officer replied, "I can't tell you what Meijer's is going to do ***, but as far as you're concerned, our business is done. You're free to go." I appreciate you being so cooperative. Mr. Niessel testified that he "got in my

vehicle and left, went home shaking." Mr. Niessel testified that the encounter lasted fifteen to twenty minutes and left him upset and irritated. According to Mr.

Niessel, his wife stopped by Meijer the next day and spoke to the manager, who denied having any knowledge of the incident. Mr.

Niessel testified that the manager said that he would talk to someone and contact Mrs. Niessel about it but never did.

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Warren CA2001-04-027 Mr. Niessel testified that he was not receiving any mental health treatment for reasons related to the incident. Mr. Niessel

admitted that he is able to continue his "normal day-to-day business" but stated that he avoids the city of Middletown. Mr.

Niessel stated that he thinks about what happened "constantly." Mr. Niessel explained that each time it enters his mind, "I go through the entire incident from start to finish, and I feel the same way I did that day ***." Mr. Niessel stated that he has been

angry since the incident and that although he has not "snapped" he feels as if he is "on the edge." A few people in Mr. Niessel's

life have told him that he should attend counseling, but Mr. Niessel has tried to "take care of these feelings *** on my own terms and my own way." Mr. Niessel testified that the feels like

he was "depants [sic] in front of six hundred people ***." Heather Anne Howison, Meijer's loss prevention manager at the time of the incident, was also deposed. Howison testified that she

has been trained to look for suspicious behaviors in order to detect shoplifters. Howison testified that examples of suspicious

behaviors included people dressing inappropriately for the weather, people carrying large purses, and people putting small items in their shopping cart and blocking these items with large items. Howison also testified, "If somebody comes in and goes right to a product, doesn't even look at a price or anything, and just grabs it up, that's not a norm." Howison explained that she first observed Mr. Niessel on a black and white video that showed shoppers in the store. When

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Warren CA2001-04-027 asked what behavior she observed that raised suspicion about Mr. Niessel, Howison testified that the fact that he was carrying a large bag and his manner of selecting merchandise seemed suspicious. From watching the video, Howison could not determine

whether the large bag Mr. Niessel was carrying was a Meijer bag or not. Howison testified that she "observed [Mr. Niessel] pull CDs

from the rack, and he didn't spend much time looking at titles or prices or anything." Howison testified that she saw Mr. Niessel Howison then

for the first time "seconds before" he selected a CD.

observed Mr. Niessel turn around and leave the aisle immediately. Howison asked Sandra McRoberts, a Meijer store detective, to turn the camera to the front doors. Howison testified that when a The

customer leaves the aisle, he leaves the view of the camera.

next time she saw Mr. Niessel on the video, he was walking past the greeter and exiting the front door of the store. Howison saw the When asked

bag but did not see the CD Mr. Niessel had selected.

how much time elapsed between when she viewed Mr. Niessel in the CD aisle and when she saw him on the exit monitors, Howison replied, "a minute to 2 minutes." Howison admitted that she did not know

where Mr. Niessel was in the store during that time. After Mr. Niessel exited the store, Howison walked out to the parking lot. Howison testified that she saw Mr. Niessel walk to

the passenger side of his vehicle, open the door, and place the bag he was carrying inside. the bag was a Meijer bag. Howison still could not determine whether Mr. Niessel walked around to the Mr. Niessel backed out of

driver's side and got in the vehicle.

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Warren CA2001-04-027 the parking space and drove towards the entrance on Towne Boulevard. He then stopped the vehicle in an unoccupied area of the

parking lot and reached towards the passenger side of the vehicle. Howison wrote down the license plate number of Mr. Niessel's vehicle. Howison testified that she talked to McRoberts on a cell

phone and told her that Mr. Niessel had moved his vehicle. Howison testified that McRoberts asked her if she wanted her to call the Middletown Police Department to investigate. Howison testified

that she gave McRoberts the license plate number of Mr. Niessel's vehicle. When asked why she gave McRoberts the license plate num-

ber, Howison testified that the information would "help the investigation." Howison testified that she did not tell McRoberts to

call the police and that McRoberts did not tell her that she had decided to call the police. However, Howison testified that she

heard "bits and parts" of McRoberts' call to the police and heard her "talking to the police about coming out to the store." the call, Howison waited for the police in the parking lot. After In her

affidavit, Howison stated, "Meijer did not request the police to stop [Mr. Niessel's] vehicle or to detain or arrest [Mr. Niessel] at that time [of the call to police]. Meijer simply notified the

police for assistance in investigating, detecting and/or prevention of a possible shoplifting incident." McRoberts was also deposed. McRoberts testified that Howison McRoberts testified that

was her supervisor on December 9, 1998.

she was sitting in the monitor room with Howison that day when Howison said that she had seen Mr. Niessel

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Warren CA2001-04-027 in the CD aisle, and he had a bag and had selected some CDs. And then [Howison] ran out of the room and asked me to watch him on the monitor, and I was watching him on the monitor. A minute later I had him on the monitor going out the front door on the south end. She was out on the floor already, watching him. McRoberts testified that she had not been watching the monitors before Howison told her to watch Mr. Niessel. McRoberts observed a

bag in Mr. Niessel's hand but could not determine whether or not it was a Meijer bag. aisle quickly. During the deposition of McRoberts the following exchanged occurred: Q. A. Did you see any CDs in his hands? I couldn't tell. It was very quick. McRoberts noticed that Mr. Niessel left the CD

Q. Was he facing the CD counter or just walking through an aisle? He walked into the CD aisle, and then he A. walked and placed something down and walked back out, or picked something up. I couldn't tell what it was. Q. But you could see him

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