Bonkowski v. Arlan’s Department Store

Court of Appeals of Michigan, 1968.

12 Mich.App. 88, 162 N.W.2d 347.

Prosser, pp. 113-115


Facts: The plaintiff sued a store where she had been detained on suspicion of shoplifting. 




Rule: NEW RULE!  A shopkeeper is privileged to detain a customer for a “reasonable investigation of the facts” if the shopkeeper has a reasonable belief that the customer has unlawfully taken goods from the store.


Analysis: The court decides to extend the rule of the Restatement Second §120 A because a shopkeeper may not have enough time to form a “reasonable belief” to start a “reasonable investigation” before the customer has left the store.  The court says that more information should be gathered about whether the store security guard had a reasonable belief that the plaintiff had stolen from the store.


Conclusion: The court reversed and remanded the case for a new trial.


Notes and Questions


1.     There is a cost-benefit analysis here that the court seems to ignore.  It seems as though the extent of the shopkeeper’s privilege should be relative to the value of the goods taken.  If a pack of gum is stolen from Meijer, there is very little harm to the shopkeeper or to other customers.  If jewelry or fancy golf clubs are stolen, the loss to the shopkeeper and to customers may be great.  The extent of the privilege should also depend on how frequently shoplifting occurs.


A.   It doesn’t seem like it.  Even if the shopkeeper isn’t “permitted” to use force, there may be some cases where they have an incentive just to take their chances against the law.

B.    In Mississippi, for example, statute defines a privilege as a matter of law for storekeepers to detain customers upon reasonable suspicion of shoplifting.

C.   You can’t take away someone’s rights conditional on their surrender of some other rights.

D.   I think the rules should be different for a convenience store than for a jewelry store.

E.    The situation of a passenger on a railroad who needs to pay to ride seems analogous to a customer who must pay in order to leave with the store’s goods.

3.     If a shopkeeper libels or slanders a person who they had suspected of shoplifting, they may be held liable.  So the bottom line is that you can protect your stuff, but keep your mouth shut to the public.


Re-entry Upon Real Property


4.     The privilege of force to recover real property is roughly parallel to the privilege in relation to the recovery of chattels.

5.     If there is a quick and inexpensive remedy, then there’s no excuse for using force.

6.     So in England, this is a criminal rather than a civil matter.

7.     There may be some cases where a court will find such consent unconscionable.  I think I read something today that said you can’t consent to a breach of the peace.


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