Facts of the case:
Smiley, a buyer from Carrefour Fashions, entered the store of a rival firm, Boulevard Boutique. The reason for his visit was to find out about the latest lines that Boulevard was carrying. Once Smiley entered the store he was recognized by Maldini, the store manager of Boulevard, who immediately called the store detective and told him to keep an eye on Smiley. Maldini then called the police, notifying them that he had a shoplifter in the store. Smiley never tried to leave, believing that Rocco, the store detective, would not permit him to do so. Once the police took Smiley to the station he explained the situation and was released. Questions:
1. What might Smiley have against Boulevard, Maldini or Rocco? 2. Does Boulevard have any cause of action against Smiley? In order to answer these questions there are a few tort liability issues that need to be discussed. The first issue is false imprisonment. “False imprisonment is the intentional confinement of another person within fixed boundaries without lawful justification.” (Kerr, 19) In this case, Smiley could have left the store, but was led to believe that Rocco would stop him if he tried. There was no physical restraint in this situation and no justification on suspicion of shoplifting; however, the detention was psychological. Smiley believed that Rocco would physically restrain him if he tried to leave the store. If this tort was brought in court, Rocco could use the defence of legal authority. “The defence of legal authority is raised where the defendant claims that a statutory provision authorizes the conduct that would otherwise constitute a tort.” (Kerr, 29) Since Rocco is considered a private citizen and not a police officer, he can only make an arrest if a crime is actually being committed at the time. Rocco believed that Smiley was committing a crime because he was informed so by Maldini. In this case, however, Smiley was not committing the crime of shoplifting and Rocco would be held liable for the tort of false imprisonment. The second issue in this case is the tort of deceit. “The tort of deceit occurs if the defendant makes a false statement, which it knows to be untrue, with which it intends to mislead the plaintiff, and which causes the plaintiff to suffer a loss.” (McInnes, 107) By stating that Smiley was a shoplifter, Maldini caused him to suffer the loss of being perceived as an honest man. Society is not fond of shoplifters, because they are considered to be dishonest and a contributing factor to the downfall on the economy. In this particular case, the tort of deceit goes hand in hand with the third issue of this case; the tort of defamation. “Defamation occurs when the defendant makes a false statement that could lead a reasonable person to have a lower opinion of the plaintiff.” (McInnes, 116) By stating that Smiley was a shoplifter, Maldini committed the tort of slander defamation. Maldini lowered Smiley’s “estimation of right-thinking members of society.” (Kerr, 22) This caused Smiley to suffer the loss of being perceived as an honest man in society. Therefore, by making that statement, Maldini has placed Smiley in a position where people will look at him differently. There are three defences to defamation; justification, absolute privilege, and qualified privilege. The statement that Smiley was a shoplifter cannot be justified because the police had proven that there was no proof that any shoplifting took place. An absolute privilege is usually limited to statements made during parliamentary proceedings; between high government officials who are dealing with government business; by a judge, lawyer, litigant, or witness in the context of legal proceedings; and between spouses. (McInnes, 118) Since Smiley, Rocco, and Maldini do not fall into those categories, the defence cannot be upheld. The defence of qualified privilege “may apply whenever (i) the defendant has a legal, moral, or social obligation to make a statement,...
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