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Torts No. 06-02-00041-CV, 5/13/2003. Click here for the full text of this decision FACTS: Dillard Department Stores Inc. accused Lyndon Silva of shoplifting from its Town and Country Mall location in Houston. Silva was tried in criminal court for theft charges stemming from this incident and was found not guilty. After his acquittal, Silva brought a civil action against Dillard, alleging false imprisonment, malicious prosecution, intentional infliction of emotional distress and negligence. A jury found Dillard liable for all the allegations brought by Silva, except malicious prosecution, and awarded Silva past and future damages of $10,124.01 and $3,000, respectively, and punitive damages of $50,000. HOLDING: The court reverses the judgment to the extent it adjudges Dillard liable for intentional infliction of emotional stress or for negligence. The court affirms the judgment in all other respects. To prevail under a false imprisonment claim, a plaintiff must prove 1. willful detention; 2. without consent; and 3. without authority of law. Sears, Roebuck & Co. v. Castillo, 693 S.W.2d 374 (Tex. 1985). Dillard contends the third element is missing in this case. Dillard bases this contention on the shopkeeper’s privilege created by Texas Civil Practice and Remedies Code �124.001. The shopkeeper’s privilege expressly grants an employee the authority of law to detain a customer to investigate the ownership of property, so long as 1. the employee has a reasonable belief the customer has stolen or is attempting to steal store merchandise; 2. the detention was for a reasonable amount of time; and 3. the detention was in a reasonable manner. Wal-Mart Stores Inc. v. Resendez, 962 S.W.2d 539 (Tex. 1998). Dillard asserts there was no evidence Silva’s detention was unreasonable. In Resendez, the court held the 10 to 15 minutes in that case was not unreasonable as a matter of law. The court, however, made its decision “[w]ithout deciding the outer parameters of a permissible period of time under �124.001.” Here, both sides agree the detention was for at least an hour. Considering the totality of the circumstances, the court cannot say Silva was detained for an unreasonable length of time. Silva’s testimony provided the jury with evidence the detention was not conducted in a reasonable manner. Although the descriptions of the detention by Silva and Kevin Rivera (a Dillard security guard) were different, when parties introduce conflicting testimony in a jury trial, it is the duty of the jury to determine which witness is more credible. Jones v. Tarrant Util. Co., 638 S.W.2d 862 (Tex. 1982). The verdict indicates the jury found Silva’s story more credible than Rivera’s. Generally, the reasonableness of a detention is a question of fact for the jury to decide. Silva’s testimony was more than a scintilla of evidence to support the jury’s finding, and its verdict was not so contrary to the overwhelming weight of the evidence that it was clearly wrong and unjust. Despite Silva’s contention Dillard knew of his innocence at the time of his criminal trial, the jury found Dillard had probable cause to initiate criminal proceedings against him. This is evidenced by the jury’s finding Dillard not liable on Silva’s claim of malicious prosecution. Therefore, the fact Dillard initiated criminal proceedings against Silva cannot constitute outrageous behavior. To recover exemplary damages in this case, Silva was required to prove by clear and convincing evidence that the harm suffered resulted from malice. Texas Civil Practice and Remedies Code �41.003(a)(2). Malice means a specific intent by the defendant to cause substantial injury to the claimant; or an act or omission which, when viewed objectively from the standpoint of the actor at the time of its occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and of which the actor had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety or welfare of others. �41.001(7). In this case, there was evidence that the incident had affected Silva in a greater way than mere worry, anxiety, vexation, embarrassment or anger. Several witnesses testified that before the incident Silva was always happy, but after the incident his personality changed. Silva’s roommate testified Silva experienced nightmares as a result of the incident. He testified Silva would cry about what had happened to him. There was testimony of activities that Silva enjoyed before this incident, such as shopping and dancing, that he no longer likes to do. Silva testified he suffered from depression because of this incident. He further testified this incident caused him to lose his pride, “his dignity [as] a citizen.” This evidence is sufficient to support the jury’s award of past and future damages for mental anguish. The determination of whether to award exemplary damages and the amount of exemplary damages to be awarded is within the discretion of the trier of fact. OPINION: Carter, J.; Morriss, C.J., Ross and Carter, JJ.

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