To: Prof.

Jacques Erdos
From: Claudia Bustamante
Date: July 29, 2013
Re: Ed Grix v. Sports Authority: Likelihood of false imprisonment claim

Question Presented
Under the New York Tort Law, in order to prove false imprisonment, the plaintiff must show
some actions such as; he was being confined, he was conscious, he did not consent to the
confinement, and the confinement was not otherwise privileged. Under S. 218. Defense of
Lawful Detention in any action of false arrest, false imprisonment, defamation of character,
and invasion of civil rights, it should be in defense to such action that the person is detained in
a reasonable manner, reasonable grounds, and no more than a reasonable time. Ed Grix was
detained for suspicion of using a fake and altered $100 coupon.
1. Does Albert have a defense in GBL 218 Defense of lawful detention?
2. Was Ed falsely imprisoned?
3. Is the threat of invasion of privacy punishable?
4. What damages can be recovered?
5. Is Ed allowed to bring the claim or does the 50L Right of Privacy bar it?

Short Answers
1. Albert did have the right to retain Ed for further investigation since the coupon seemed
altered. Although, he did not did it in a reasonable manner because he threatened Ed.
Also, he didnt do it in a reasonable time because after Ed denied to confess, Albert still
kept Ed and his son in the office.
2. Ed was probably false imprisoned because: Albert intended to confine, Ed was
conscious of the confinement, Ed did not consent, and the confinement was not
otherwise privileged.
3. Albert did not take a photo of Ed and his son, but if he did, it would have gone against
the Right of Privacy since Ed never gave him authorization. By threatening to use the
photo he went beyond the claims of reasonable manner in GBL 218.
4. The damage of false imprisonment is the time Ed and his son lost.
5. Ed is allowed to bring the claim because he was falsely imprisoned. Although Albert
never took photos of him and posted them in Facebook, he was threatened which could
have matter in his decisions.

Summary of Facts
Albert Levy, Sports Authoritys manager put a $100 discount coupon (had an expiration date)
in Facebook that will be useful if you purchase something above $200. On August 2012, Ed
Grix and his son Fred went to Sports Authority to buy a gift. Eds wife printed a coupon from
Facebook. When Ed was paying the $249.99, he gave Jan, the store clerk, the coupon at 11:10.
Jan noticed the expiration date in the coupon seemed altered from the original. Jan told Albert
about the incident. He demanded that Ed and Fred must go to his office in the back of the store
for further questioning. At first, Ed refused to go, but after seeing Alberts angry behavior, he
agreed for avoiding another scene. There were neither security guards nor police in the back
room. Albert made them sit in the chairs at the room; Ed thought of leaving but he never asked.
Albert tried every tactic to make Ed confess he altered the coupon. Twenty minutes later, Ed
still refused to confess but agreed that the coupon seemed something altered. Although he
agreed, he didnt sign the written confession statement on shoplifting with a fake $100 coupon.
Albert let Ed and Fred go out but warned them that the security system has recorded their
images and pictures and he will publish their photos in the wall of shame in Facebook with
the word criminal stamped in the pictures. Albert was accusing them of larceny. Finally, Ed
and Fred were escorted out of the store around 12noon.

Discussion
If any person is going to restrict and obstruct another person freedom to choose what he wants
to do and where he wants to be, the plaintiff must show four actions. (See Restatement, 2d,
Torts, s 35, comment H). The actions are: 1) The defendant intended to confine. 2) The
plaintiff was conscious of the confinement. 3) The plaintiff did not consent to the confinement.
4) The confinement was not otherwise privileged. The first action is accomplished in this case
because Albert took Ed and Fred to the backroom and made them stay there. Second, Ed was
conscious that he was being confined. Third, when Albert was insisting Ed to sign the
confinement, Ed did not consent. Fourth, the confinement was otherwise not privileged
because Albert did not acted in a reasonable manner and threatened Eds Right of Privacy.

See S.218. Defense of Lawful Detention. It shall be a defense to such action that the person
was detained in the reasonable manner and for not more than a reasonable time to permit such
investigation or questioning by the owner of the retail mercantile establishment, his authorized
employee or agent, if the employee or agent had the reasonable ground to believe that the
person so detained was guilty of () or was committing or attempting to commit larceny
Under S. 218. Defense of Lawful Detention in any case of false arrest, unlawful detention,
defamation of character, assault, trespass, or invasion of civil rights, there must be a) a
reasonable ground to be detained, b) reasonable manner and c) in a reasonable time.
a) General Business Law section 218 says, Reasonable grounds shall include, but not
be limited to, knowledge that a person has concealed possession of unpurchased
merchandise of a retail mercantile establishment. A very important phrase is but not
be limited to so we can also include that paying with false money, or cards, or coupons
etc. can also be included. By this reason, Albert did had reasonable grounds to detain
Ed. Ed gave a $100 discount coupon to pay a t-shirt. The coupons expiration date
seemed altered and even Ed agreed on that. For Albert, Ed was suspected of
committing shoplifting so he had to do further questions to know what happened.
Defendant had the right to detain plaintiff in order to investigate the improper use of
the discount card. Defendant further had the right to ask plaintiff to identify himself,
ask plaintiff and employee Katz to explain the improper use of the card and whether or
not plaintiff wishes to make a statement. (Spitzer v. Abraham & Straus, 106 Misc.2d
589, 434 N.Y.S.2d 114) This is a similar case where it shows that the defendants have
the right to stop the plaintiff for further questioning when they have reasonable grounds
that they are committing larceny or shoplifting. In the case of Spitzer v. Abraham &
Straus the shoplifting was being done through a discount card, the same as in Ed Grix
v. Sports Authority. See case Wolin v. Abraham and Straus 106 Misc.2d 589, 434
N.Y.S.2d 114, where customer was suspected of using counterfeit money, she was also
detained for further investigation since they had reasonable grounds to do it. In the
same case, its says that under GBL section 218 the methods used is shoplifting, use of
stolen credit cards, insurance of worthless checks or other means.
b) A reasonable manner would encompass conduct by the merchant consistent with the
purpose of the detention (Johnson v. Bloomingdales, 94 Misc.2d 2018, 404 N.Y.S.2d
267) Albert did not retained Ed and Fred in a reasonable manner. Albert had a really
bas conduct. He used every tactic he knew to make Ed confess that he altered the
coupon (one of the tactics was threatening him). Albert was really angry and threatened
Ed and Fred with posting photos of them in the wall of shame in Facebook with the
word CRIMINAL in it. In the case of Spitzer v. Abraham & Straus Defendant
forfeited its defense to the false imprisonment action as a result of its unreasonable
conduct in the detention of plaintiff. Accordingly, verdict for defendant is vacated.
(Spitzer v. Abraham & Straus, 106 Misc.2d 589, 434 N.Y.S.2d 114) This is similar to
the conduct that Albert had when he was with Ed in the backroom. He will have no
defense in for acting in a unreasonable manner.
c) Ed was retained in a reasonable time of about 20 minutes in the backroom office.
After plaintiff identified himself, the use of the card was explained and plaintiff refused
to sign the statements, the protection of Section 218 ended. (Spitzer v. Abraham &
Straus, 106 Misc.2d 589, 434 N.Y.S.2d 114). Time began to be unreasonable after
Albert asked Ed to sign the confinement but Ed refused. Reasonable time shall mean
the time necessary to permit the person detained to make a statement or to refuse to
make the statement. (Spitzer v. Abraham & Straus, 106 Misc.2d 589, 434 N.Y.S.2d
114). Since Ed already refused, he should have been able to go, but Albert continued
insisting Ed to sign the he was guilty. Albert exceeded the reasonable time.

Albert threatened Ed of putting his pictures in the wall of shame with a criminal word in
the picture. When Albert threatens him, he will have no defense under the reasonable manner
in GBL section 218. Taking pictures without the consent of the person being photographed is
not permitted. See (Johnson v. Bloomingdales, 101 Misc.2d 49, 420 N.Y.S. 840, 1979)
Neither does the merchant have the right to photograph a detainee. Ed never gave Albert a
written consent that he could do that. If Albert had taken photos of them and posted them in
Facebook, he would be violating two peoples Right of Privacy, because Ed was with his son
Fred. So if Albert took photos of them and posted them in Facebook, he would have violated
their right of privacy. Although the 218 GBL does not prohibits the taking of photos, only of
fingerprints, in S. 50. Right of Privacy is says: A person, firm or corporation that uses for
advertising purposes, or for the purposes of trade, the name, portrait of picture of any living
person without having first obtained the written consent of such person, or if a minor of his or
her parent or guardian, is guilty of misdemeanor. If Albert had used the photographs apart
from being guilty of misdemeanor, Albert would have also been accused for defamation of
character. He would have not had the right to publish without Eds permission something in the
web for everyone to see. Also, he threatened to use the word criminal. If Albert gets to post
something in Facebook there can also be a claim for defamation of character for saying to the
public something that is not true.

In this case, the damage for false imprisonment will be the time that Ed and Fred lost. Ed and
his son didnt lost more things. The statute of limitation of this case (time to file discussion) is
of one year. See Civil Practice Law and Rules section 215 actions to be commended within one
year: an action to recover damages for false imprisonment

Potential Counterarguments
Sports Authority can have some counterarguments to the claim of false imprisonment. The
coupon looked really altered and even Ed agreed on that. How does Sports Authority know that
Ed is saying the truth? Who do they know that Ed didnt alter the coupon himself? Ed agreed
that the coupon seemed altered, so why did he use it?

Conclusion
It is more probable that Ed Grix ends up winning this case for his claim of false imprisoned. He
meets all the elements that must be shown to prove false imprisonment. In the other hand,
Sports Authority does not meet the elements for GBL section 218. Although they had a
reasonable ground to detain Ed for further questions, Albert didnt act in a reasonable
manner and didnt do it in a reasonable time. Albert also threatened to publish Eds picture
in Facebook, if he would have done that, he would have violated Ed and Freds Right of
Privacy and would have also been accused for defamation of character. The damage is the time
that Ed and his son lost while they were being falsely accused.