United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell United States District Judge.
matter comes before the Court upon Defendants' Motion for
Summary Judgment (Doc. 259) (the “Motion”),
Plaintiff's response in opposition (Doc. 276), and
Defendants' reply in support of the Motion (Doc. 278). In
the Motion, Defendants seek final summary judgment in their
favor on all remaining counts of Plaintiff's complaint.
The Court, having considered the parties' submissions and
being fully advised in the premises, will grant the Motion.
STATEMENT OF FACTS 
near the date of the incident that is the subject of this
lawsuit, Wal-Mart maintained a standard operating procedure
entitled “APCS: Receipt Checking” (the
“policy”). Doc. 276-1.The policy provided direction
to certain Wal-Mart employees tasked with checking customer
receipts. Id.; Doc. 209-3, Deposition of Kristina
Wood (“Wood Depo.”) at 15:1-15:6; Doc. 209-2,
Deposition of Charles Caraway (“Caraway Depo.”)
at 27:3-27:25, 28:22-29:5. Under the policy, receipt checkers
should ask to see a receipt when a customer is leaving with
“[l]arge un-bagged high value items, i.e., all TVs,
totes, bikes, etc., ” when a customer is seen leaving
“from the salesfloor and not the frontend, ” or
when management or asset protection requests a receipt check.
Doc. 276-1. If a customer who is asked for a receipt
does not have one, the receipt checker should “offer to
hold the merchandise until the customer can find their
receipt.” Id. If the customer cannot find
their receipt, the receipt checker should relay information
provided by the customer-such as which register lane they
checked out at-to management to verify the purchase.
event that a customer “refuses to produce a receipt,
” the receipt checker should “[p]olitely offer to
hold the merchandise until the customer can find their
receipt.” Id. at p. 2. If the customer
“refuses” to allow the employee to hold the
merchandise, the employee should “allow them to leave,
and document the event” on a standard form and notify
management or asset protection. Id. The provision
allowing a customer who refuses to provide his receipt to
leave the store is in place for the protection of
Wal-Mart's employees. Doc. 215-1, Deposition of Mark
Gammon (“Gammon Depo.”) at
policy applies on normal days of business, but may not apply
on non-standard days. Wood Depo. at 15:18-15:25; Gammon Depo.
at 15:17-15:21. November 26, 2015 was Thanksgiving. On that
evening, Wal-Mart Stores East, LP (“Wal-Mart” or
the “store”) located at 7450 Cypress Gardens
Boulevard, Winter Haven, Florida was having a major sales
event. SF at ¶¶ 3a-3b. Because the sales event
would attract a “magnitude of people” that
evening, Wal-Mart decided to implement different procedures,
requiring receipt checking for at least all merchandise that
was not bagged. Wood Depo. at 58:3-58:9; Caraway Depo. at
23:15-23:19; Gammon Depo. at 15:17-15:21; Phillips Depo. at
18:10-18:12. In addition, Wal-Mart decided to add police
presence to the store that day. Gammon Depo. at 15:23-15:24.
least three police officers from the City of Winter Haven
(the “City”) were present at Wal-Mart for the
sales event pursuant to a special detail contract between
Wal-Mart and the City. SF at ¶ 3c. The three officers,
all dressed in full uniform, were Sergeant Ken Nichols
(“Sergeant Nichols”), Sergeant Dan Gaskin
(“Sergeant Gaskin”), and Officer Brad Webster
(“Officer Webster”) (collectively, the
“Officers”). SF at ¶¶ 3c-3d. The Officers
were paid by Wal-Mart for their time, but were not acting
under the supervision of Wal-Mart. Phillips Depo. at
10:6-10:10; Wood Depo. at 43:25-44:1, 57:4-57:8; Doc. 209-6,
Deposition of Sergeant Gaskin (“Gaskin Depo.”) at
62:24-63:2. See also SF at ¶ 3e (agreeing the
Officers were acting in the course and scope of their
employment with the City).
Darrell Archer (“Archer”) went to the store that
evening. Id. at ¶ 3a. The store was very busy
with holiday shoppers. Id. at ¶ 3b. Using the
self-checkout line, Archer purchased a large screen
television at the store for a total price of $159.43.
Id. at ¶ 3a. A Wal-Mart employee, Diamond
Hernandez (“Hernandez”) helped Archer complete
his transaction and handed him his receipt. Doc. 209-4,
Deposition of Diamond Hernandez (“Hernandez
Depo.”) at 9:21-9:24. Archer placed his receipt in his
pocket and proceeded to exit the store. SF at ¶ 3g.
Archer walked toward the exit, pushing the shopping cart that
held the television. Doc. 214, Incident Video
(“Video”) at 00:00-00:08.
Archer began his exit, another Wal-Mart employee, Kanara
Harris (“Harris”), asked Archer to show his
receipt for the purchase of the television. SF at ¶ 3h.
Harris had routinely attempted to ask all customers for
receipts as they exited the store that evening. Id.
refused to show Harris his receipt. Id. at ¶
3i. As Archer pushed the shopping cart toward the exit,
Harris followed, stepping to the right of Archer,
then stepping in front of the shopping cart and placing his
hands on the shopping cart. Video at 00:11-00:22; see
also Doc. 209-1,  Deposition of Darrell Archer
(“Archer Depo.”) at 77:19-78:14. Harris continued
to block the shopping cart, but did not physically block
Archer. Archer Depo. at 161:15-161:19; Video at 00:11-00:33.
Archer continued to attempt to leave the store with the
shopping cart and television, attempting to maneuver around
Harris. Video at 00:22-00:28. Archer testified he believed
Harris told him he could not leave without showing his
receipt. Archer Depo. at 182:17-183:5.
gestured, apparently waving to someone, and a few seconds
later, Officer Webster arrived at the scene. Video at
00:21-00:40; Archer Depo. at 120:21-120:25, 184:24-185:4.
Officer Webster stepped to the right of Archer and placed his
hands on the right side of the shopping cart and then at the
front of the shopping cart. Video at 00:33-00:49.
Officer Webster arrived, Harris walked away, returning to his
previous duties. Id. at 00:36-01:32; SF at ¶
3l. Officer Webster requested Archer's receipt. SF at
¶ 3j. Archer refused to show Officer Webster his
receipt. Id. at ¶ 3k; Archer Depo. at
79:1-79:11. Officer Webster continued to keep a hand on the
shopping cart. Archer Depo. at 121:21-121:23; Video at
dressed in a t-shirt, Wal-Mart employee Charles Caraway
(“Caraway”), was next to arrive at the scene just
after Officer Webster. Video at 00:45-00:50; Archer Depo. at
121:16-121:20. Less than one minute later, another Wal-Mart
employee, a female named Kristina Wood (“Wood”),
arrived. Video at 01:39-01:45; Archer Depo. at 121:24-122:4.
A few seconds later, Sergeant Nichols arrived. Video at
01:47-01:54; Archer Depo. at 122:5-123:7, 185:5-185:7; Doc.
276-3 at p. 2. About one minute later, Sergeant Gaskin
arrived. Video at 02:53; Archer Depo. at
testified that during this time, one of the sergeants told
him he was not allowed to leave. Archer Depo. at 55:1-55:9,
55:17-55:24. Archer also testified he could not leave because
he “was being blocked.” Archer Depo. at
103:22-103:23. However, Sergeant Gaskin testified no one ever
told Archer he was not free to leave. Gaskin Depo. at
Nichols' police report describing the incident provides
Archer stated “he had a right to the property and
wished to leave with it” and Caraway “advised
that [Archer] would not be able to exit the store without a
receipt for the television.” Doc. 276-3 at p. 2. Later
in the report, Sergeant Nichols also wrote that Archer
“was advised that he could not leave with the
merchandise without a receipt.” Id.
testified Archer was told “over and over again that
[he] w[as] free to go.” Caraway Depo. at 32:13-32:14.
Caraway's recollection was that Archer was free to leave,
but that he could not take the television unless he provided
his receipt. Id. at 32:18-32:20, 36:13-36:16,
37:16-37:18 (testifying that Archer “was free to leave
at all times” but could not take the television unless
he “proved that [he] purchased it”). Caraway
recalled telling the Officers that Archer could not leave
with the merchandise without proof of purchase. Id.
also recalled that Archer was free to leave at any time, and
that the Officers told him this. Wood Depo. at 40:12,
40:24-40:25, 42:12-42:18, 49:4-49:10; 49:25-50:12, 55:20,
56:16-56:20, 57:13-57:14. Wood testified she “was not
stopping [Archer] from leaving, even with the
television.” Id. at 56:21-56:24.
Archer continued to refuse to provide his receipt. Archer
raised his voice, pointed a finger at the Officers and the
Wal-Mart employees, and was argumentative. Doc. 209-7,
Deposition of Sergeant Nichols (“Nichols Depo.”)
at 87:18-88:1, 90:8. According to Archer's testimony, one
of the two sergeants, possibly Sergeant Nichols, told Archer
at some point that he could arrest Archer for theft. Archer
Depo. at 54:5-54:21.
approximately three minutes of standing and talking with the
Officers and Wal-Mart employees, Archer pushed his shopping
cart forward in an attempt to leave with his television. SF
at ¶ 3m; Archer Depo. at 123:8-123:13; Video at
03:15-03:21. Sergeant Gaskin removed the television from
Archer's shopping cart and set it on the floor. SF at
¶ 3n; Video at 03:21-03:39; Archer Depo. at
requested that Archer be trespassed from the property. SF at
¶ 3o; Doc. 276-3 at p. 2. Sergeant Nichols told Archer
he would have to leave or he would be arrested for trespass.
Archer Depo. at 90:23-91:6; Nichols Depo. at 43:16-43:24.
Archer asked Nichols whether he was free to leave, and
Nichols advised he was. Doc. 276-3 at p. 3. Archer asked
whether he could leave with the television; Nichols
“advised that he could not unless he was able to
provide the receipt.” Id.
testified it was possible he was told he could leave with the
television if he showed his receipt. Archer Depo. at
93:12-93:14. Nonetheless, Archer “preferred to assert
[his] right not to have to show that receipt.”
Id. at 93:15-93:18.
left the premises without the television, thinking that he
would be arrested if he did not leave. SF at ¶ 3p; Video
at 05:25-05:35. Officer Webster and Sergeant Nichols followed
Archer out into the parking lot as he exited the store.
Nichols Depo. at 44:12-44:16; Video at 05:25-05:35.
security camera recorded images of the incident, beginning at
approximately 6:57 p.m. when Archer encountered Harris and
continuing through to when Archer left the store at
approximately 7:02 p.m. Video at 00:00-05:37. During
those five to six minutes, Archer was never moved from the
scene of the incident, taken to another room, or arrested. SF
at ¶¶ 3q-3r; Archer Depo. at 53:18-54:4; Video at
Archer left the store, Caraway took the television and stored
it in the asset protection office. SF at ¶ 3s; see
also Video at 7:30-8:00. Later that evening,
Wal-Mart's asset protection team verified that Archer had
in fact purchased the television. SF at ¶ 3t; Hernandez
later, Archer went to the police department and met with an
Officer Hoverkamp to discuss the incident. Archer Depo. at
104:19-105:12. Officer Hoverkamp later called Archer and
informed him that he was allowed to return to the store to
pick up his television and that if he no longer wanted the
television, he would be able to get a refund at
Wal-Mart's customer service desk. Id. at
105:18-106:4. Archer does not recall Officer Hoverkamp
telling him that, but admits that his concern at that point
was not about getting the television or his money back.
Id. at 106:5-111:4. Archer does not believe he ever
attempted to call Wal-Mart to ask about getting his
television back. Id. at 106:18-106:20.
judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, show there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving
party bears the initial burden of stating the basis for its
motion and identifying those portions of the record
demonstrating the absence of genuine issues of material fact.
Celotex, 477 U.S. at 323; Hickson Corp. v. N.
Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004).
That burden can be discharged if the moving party can show
the court that there is “an absence of evidence to
support the nonmoving party's case.”
Celotex, 477 U.S. at 325.
the moving party has discharged its burden, the nonmoving
party must then designate specific facts showing that there
is a genuine issue of material fact. Id. at 324.
Issues of fact are “genuine” only if a reasonable
jury, considering the evidence present, could find for the
nonmoving party, and a fact is “material” if it
may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49 (1986). In determining whether a genuine issue of
material fact exists, the court must consider all the
evidence in the light most favorable to the nonmoving party.
Celotex, 477 U.S. at 323. However, a party cannot
defeat summary judgment by relying upon conclusory
allegations. See Hill v. Oil Dri Corp. of Ga., 198
Fed.Appx. 852, 858 (11th Cir. 2006).
Count I - False Imprisonment as to Wal-Mart, Wood, Caraway,
Defendants argue they are entitled
to judgment as a matter of law on Archer's false
imprisonment claim for three reasons. First, Defendants
contend Archer cannot establish he was detained by any
Wal-Mart employee. Second, Defendants argue, even if Archer
could establish he was detained by a Wal-Mart employee,
Defendants are immune under Florida's shopkeeper immunity
statute. Third, Defendants contend any detention of Archer
was lawful because Archer consented. The Court reviews each
of Defendants' arguments, and Archer's responses
thereto, in turn.
imprisonment is the unlawful restraint of a person against
his will, the gist of which action is the unlawful detention
of the plaintiff and deprivation of his liberty.”
Harder v. Edwards, 174 So.3d 524, 530 (Fla. 4th DCA
2015) (quoting Johnson v. Weiner, 19 So.2d 699, 700
(Fla. 1944)). “Unlawful” means that the
confinement was “unreasonable and unwarranted under the
circumstances.” Harris v. Lewis State Bank,
436 So.2d 338, 341 (Fla. 1st DCA 1983) (emphasis deleted,
citation omitted). Thus, the following elements are required
to show false imprisonment: 1) the “detention and
deprivation of liberty of a person 2) against that
person's will 3) without legal authority or ‘color
of authority' and 4) which is unreasonable and
unwarranted under the circumstances.” Harder,
174 So.3d at 530 (citation omitted).
Whether Archer was Detained
Detention in general
summary judgment record in this case provides little support
for the premise that Archer was detained. Less than six
minutes elapsed between the time Archer encountered Harris
and left the store. During those few minutes, Archer was not
touched, was not asked to accompany the Wal-Mart employees or
Officers to another location, and was not arrested. These
facts alone distinguish this case from the majority of
retail-related false imprisonment claims brought pursuant to
Florida law. See, e.g., Morris v. Albertson's,
Inc., 705 F.2d 406, 408 (11th Cir. 1983) (plaintiff
accused of shoplifting agreed to accompany store personnel to
store office); Harder, 174 So.3d at 529 (plaintiff
arrested and held almost 24 hours); Louis v. Costco
Wholesale Corp., 719 So.2d 1226, 1227 (Fla. 4th DCA
1998) (plaintiff arrested and held for several hours);
Canto v. J.B. Ivey & Co., 595 So.2d 1025, 1027
(Fla. 1st DCA 1992) (plaintiffs accused of shoplifting agreed
to accompany store personnel to store office, where they were
held for about two hours); Hood v. Zayre Corp., 529
So.2d 1197, 1198 (Fla. 5th DCA 1988) (plaintiff accused of
shoplifting taken to store security office); Hernandez v.
K-Mart Corp., 497 So.2d 1259, 1259 (Fla. 3d DCA 1986)
(plaintiff accused of shoplifting agreed to accompany store
security guard to a room in the back of the store where she
was interrogated, threatened with police action, and
strip-searched); DeMarie v. Jefferson Stores, Inc.,
442 So.2d 1014, 1015 (Fla. 3d DCA 1983) (plaintiff questioned
in room in the back of the store and subsequently arrested);
Weissman v. K-Mart Corp., 396 So.2d 1164, 1166 (Fla.
3d DCA 1981) (plaintiff invited to store's security
office where he was held for at least 15 to 20 minutes, but
less than 30 minutes, and charged by police with
shoplifting); Food Fair Stores, Inc. v. Kincaid, 335
So.2d 560, 561 (Fla. 2d DCA 1976) (plaintiff accused of
shoplifting was asked to step into manager's office,
where she was held for about 30 minutes until police arrived
and then held another 10 to 15 minutes until she was put in a
police car and taken to the police station); Anderson v.
Wal-Mart Stores, Inc., No. 12-61047-CIV, 2013 WL 773473,
at *2 (S.D. Fla. Feb. 28, 2013) (plaintiff arrested after she
failed to cooperate with police officer who had approached
her after being alerted by store personnel that plaintiff had
refused to show her receipt); Mahani v. Wal-Mart Stores,
Inc., No. 08-80654-CIV, 2009 WL 1834224, at *3 (S.D.
Fla. June 25, 2009) (plaintiff was escorted to the asset
protection office by store personnel); Ciccariello v.
Kash N' Karry Food Stores, Inc., No.
8:07-CV-592-T-30TGW, 2008 WL 4426710, at *2 (M.D. Fla. Sept.
26, 2008) (plaintiff arrested for retail theft after being
observed by store personnel).
does not direct the Court to a single case with facts similar
to those undisputed here, where a plaintiff, questioned for a
matter of minutes and not moved from the scene nor arrested,
brought a successful claim for false imprisonment. A case
cited by Defendants, however, suggests such circumstances,
where a customer is stopped for a few minutes and given the
option to leave without property, may not give rise to a
detention. See Moore v. Federated Retail Holdings,
Inc., No. 6:07-CV-1557-ORL-31GJK, 2009 WL 129628, at *4
(M.D. Fla. Jan. 20, 2009) (stating it was “far from
clear” whether plaintiff was “ever
detained” where he was stopped near a store exit for
about 20 minutes and able to leave the store without his
property); see also Anderson, 2013 WL 773473, at *6
(law enforcement did not seek to detain customer upon first
approach, but “only sought to get [her] to provide a
receipt for her purchases”).
viewing all evidence in a light most favorable to Archer,
genuine issues of material fact exist with respect to whether
Archer was free to leave the store without the television
before being issued a trespass warning. Although the Wal-Mart
employees and Officers testified Archer was free to leave at
any point without the television, Gaskin Depo. at 90:24-91:1;
Caraway Depo. at 32:13-32:14, 32:18-32:20, 36:13-36:16; Wood
Depo. at 40:12, 40:24-40:25, 42:12-42:18, 49:4-49:10,
49:25-50:12, 55:20, 56:16-56:20, 57:13-57:14, Archer
testified to other circumstances, including that at least one
of the Officers threatened him with arrest and told him he
was not free to go. Archer Depo. at 53:14-53:18,
genuine issues of material fact exist as to the first element
of Archer's claim for false imprisonment, detention, the
Court assumes for purposes of further analysis that Archer
was not free to leave the store. However, the Court's
analysis as to the first element does not end there. Assuming
Archer was not free to leave, the Court must address whether
there is a dispute of material fact as to which, if any,
Wal-Mart employee detained Archer. b. Detention by any
Wal-Mart employees A private individual cannot be held liable
for false imprisonment pursuant to Florida law unless that
person “personally and actively participated therein,
directly or by indirect procurement.” Harder,
174 So.3d at 530 (quoting Johnson, 19 So.2d at 701).
A citizen that provides information to law enforcement,
without more, does not commit the tort of false imprisonment.
Id. (citing Pokorny v. First Fed. Sav. &
Loan Ass'n of Largo, 382 So.2d 678, 682 (Fla.
1980)). That remains true even where an individual
“makes an honest, good faith mistake in reporting an
liable in tort for false imprisonment, an individual must
either “actually detain” another or
“instigate” such detention. Id. To
“instigate” a detention means to take “an
active role in encouraging or procuring” the same by
[w]ords or acts which direct, request, invite or encourage
the false imprisonment itself. In the case of an arrest, it
is the equivalent, in words or conduct, of “Officer,
arrest that man!” It is not enough for instigation that
the actor has given information to the police about the
commission of a crime, or has accused the other of committing
it, so long as he leaves to the police the decision as to
what shall be done about any arrest, without persuading or
Id. (quoting Restatement (Second) of Torts, section
45A, Comment c).
Lozada v. Hobby Lobby Stores, Inc., a manager of the
store, Michael Licari, called law enforcement to report that
an employee, plaintiff Ismael Lozada, was planning a mass
shooting. 702 Fed.Appx. 904, 906 (11th Cir. 2017). Store
employees had told Licari about Lozada's recent behavior,
including comments about “shooting up” the store.
Id. at 907. Licari obtained written statements from
the employees and forwarded them to Hobby Lobby's
corporate office. Id. Licari was instructed to
contact law enforcement and to terminate plaintiff's
wrote out a statement for law enforcement, summarizing what
he had heard about plaintiff from the other employees.
Id. One deputy stated he would speak to plaintiff to
assess his mental state. Id. at 908. Plaintiff was
interviewed by law enforcement, civilly committed, and
detained for about 36 hours. Id.
claimed damages against Hobby Lobby for false arrest.
Id. at 907. The district court granted summary
judgment in favor of Hobby Lobby on plaintiff's false
imprisonment claim, holding Hobby Lobby did not instigate
plaintiff's arrest. Id. The Eleventh Circuit
affirmed, rejecting plaintiff's argument that Hobby
Lobby's involvement of law enforcement was a directive to
have plaintiff arrested. Id. at 916-17. The Eleventh
Circuit also rejected plaintiff's argument that Hobby
Lobby was liable because its employees went beyond mere
reporting by asking law enforcement to inform plaintiff that
he was fired from his job at Hobby Lobby. Id. While
acknowledging Hobby Lobby may have gone beyond mere reporting
in this instance, the Eleventh Circuit held such actions
“did not amount to instigation because it was not
equivalent to asking [law enforcement] to arrest
contends, generally, that Defendants are responsible for the
Officers' behavior because Wal-Mart employees
“accepted the conduct of the police officers in part by
their acquiescence to the officers' conduct toward the
plaintiff.” Doc. 276 at p. 3. First, the evidence
before the Court does not indicate that any Wal-Mart employee
“acquiesced” to the Officers' conduct.
Rather, the record evidence shows the Officers and the
Wal-Mart employees acted in separate scopes: the Officers
acted in the scope of their employment as Officers with the
City, and not pursuant to any direction from Wal-Mart.
Phillips Depo. at 10:6-10:10; Wood Depo. at 43:25-44:1,
57:4-57:8; Gaskin Depo. at 62:24-63:2; SF at ¶ 3e.
Archer provides no support for the premise that a private
citizen can be liable for false imprisonment by
“acquiescence.” To the contrary, as just
discussed, such an assertion is not supported by law. To be
liable in tort for false imprisonment, a private individual
must actually detain a person or must instigate such
detention through “an active role.”
Harder, 174 ...