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Legal Report August 2006


MALICIOUS PROSECUTION. The Texas Supreme Court has ruled that a grocery store cannot be held liable for malicious prosecution of a patron because the employees who accused the patron of theft were acting honestly and reasonably based on their observations. The fact that these observations may have been mistaken does not render the employees’ actions unreasonable.

In March 1999, Theresa Suberu visited a Kroger grocery store in Garland, Texas. Suberu went to the pharmacy to pick up a prescription. While there, she learned that her husband also had a prescription ready. Suberu told the pharmacist that she did not have enough cash for both prescriptions. She said she was going to her car to get more money and left.

Suberu was leaving the store when she heard the front-end manager, Kellie Wier, yell “Stop!” According to Wier, Suberu was pushing a grocery cart full of unbagged groceries. Suberu denied that she had a cart. Wier asked to see a receipt. Suberu told Wier that she had no groceries and that she was going to her car to get money for the prescriptions.

Another Kroger employee, Major Belton, looked up when Wier called out to Suberu. He said that he saw Suberu pushing a cart. Wier then asked Belton to take the cart. Belton wheeled the cart, full of unbagged items, to the register. (The question of whether the cart belonged to Suberu or whether she was pushing a cart was never resolved.)

Wier called Robert Moody, the assistant manager, to the front. Moody discussed the matter with Suberu and Wier. When asked once again whether she had a receipt, Suberu said “no.” Moody took Suberu to an administrative office and called the police.

While waiting for the police, Moody filled out a shoplifting report and had one of the checkers ring up the merchandise in the cart. Moody stapled the receipt—totaling $261.00—to the report. When the police arrived, Suberu again explained that she was going to her car for cash to pay for prescriptions. Neither Moody nor the police checked this story with the pharmacist. The officers arrested Suberu and took her out of the store in handcuffs.

A jury acquitted Suberu on misdemeanor theft charges. Suberu then filed a lawsuit against Kroger for malicious prosecution and infliction of emotional distress. The trial court found in favor of Suberu and awarded her a total of $79,000 for malicious prosecution and infliction of mental anguish.

Kroger appealed to the Texas Court of Appeals for the Fifth District. The appeals court upheld the decision in Suberu’s favor. Kroger appealed once more to the Texas Supreme Court.

The supreme court overturned the lower court’s decision. The court ruled that to prevail on a malicious prosecution claim, Suberu must prove not only that she was innocent but that the Kroger employees lacked probable cause and harbored malice towards her. This provision, explained the court, helps maintain the balance between unjustly accusing the innocent and protecting businesses from crime. In contrast to the criminal case, noted the court, “the question is not whether Suberu had a cart, but whether Kroger reasonably believed that she did.” (Kroger v. Suberu, Texas Supreme Court, No. 03-0913, 2006)

NEGLIGENCE. A California appellate court has ruled that a contract security guard company can be held liable for failing to fulfill its contract. The court ruled that a client’s employee would not have been injured in a shoplifting incident had a guard been on duty as required.

Tofik Mukthar was working at a 7-Eleven store in Los Angeles around 9:30 p.m. when two females and a male entered the store. Mukthar told the male, who had shoplifted on previous occasions, that he was not welcome in the store. The women then began swearing at Mukthar.

When the women came to the counter with their merchandise, Mukthar refused them service because they had been swearing at him. Mukthar pushed the security button behind the cash register.

The women went back to the shelves, grabbed additional items, and began walking out of the store. Mukthar came out from behind the register and blocked the exit. He told the women to put the items back on the shelf. The women attacked Mukthar. One of them punched Mukthar in the eye with her fist. As a result his eye is permanently damaged.

At the time of the incident, Latin American Security Service had been hired to provide security. Under its contract, the company was required to provide an armed, uniformed security guard at the store each day between 9 p.m. and 5 a.m. The guard was not on duty that day. (In the subsequent legal action, the security service affirmed that a guard should have been present but provided no explanation as to why there was no guard at the post.) The guard was usually stationed a few feet from the cash register.

Mukthar sued the security service for negligence, claiming that it was liable for his assault. Mukthar claimed that had the guard been on duty as required, the assault would not have occurred. The security service filed a motion for summary judgment—a hearing based on the facts of a case without a trial. The court found in favor of the security service, ruling that Mukthar was the aggressor in the incident and heightened the tension by refusing to allow the women to purchase their items. The court ruled that even if the security officer had been at his station, it is unreasonable to assume that he would have identified the women as possible shoplifters and prevented them from entering the store. Mukthar appealed the lower court’s decision.

The California Court of Appeal overturned the decision, finding that the security service owed Mukthar a duty to protect him and that an armed guard would be a deterrent.

The court ruled that once the security service assumed the duty of providing a security guard, it was required to do so. The court also noted that the incident was precisely the type that security services are hired to prevent.

The court rejected the argument that Mukthar’s actions caused the incident to escalate and, therefore, would not have been prevented by a security guard. In the written opinion of the case, the court determined that: “The ultimate question in this case is whether there is evidence that Service’s failure to furnish a security guard increases the risk of the harm that befell Mukthar. We conclude that the inference is reasonable that the woman would not have hit him had a guard been standing beside Mukthar.” (Mukthar v. Latin American Security Service, California Court of Appeal, Second District, No.

B183968, 2006)


NUCLEAR FACILITIES. The Nuclear Regulatory Commission (NRC) has announced its plan to formulate a new rule to guide risk assessments at nuclear power facilities. The risk assessments, which will be performance-based and technology-neutral, will be required before a facility can be issued a license by the NRC.

The advance notice of the rulemaking does not set out the specifics of the plan. Instead, the NRC is asking for comments on whether the concept of the plan is reasonable and, if so, how it should be designed and implemented. The comment period expires December 29, 2006.

WORKER ID. The Transportation Security Administration (TSA) has issued a proposed rule relating to the Transportation Worker Identification Credential (TWIC). Under this program all people who have unescorted access to secure areas of ports and vessels will be required to carry the TWIC card.

As set out in the rule, TSA would collect names, personal information, fingerprints, and photos on all applicants for the card. TSA would also perform background checks including those for criminal history, terrorist activity, immigration status, and outstanding warrants. The TWIC will be a smart card and will include a biometric feature.

According to the proposed rule, more than 750,000 people will be required to obtain the card. The TSA expects that workers will have to pay approximately $139 to obtain the TWIC card. The card will be valid for five years.


PORT SECURITY. A port security bill (H.R. 4954) has been approved by the House of Representatives. The Senate has placed the measure on its calendar, meaning that it will consider the bill.

The bill, which will cost $7.4 billion, was approved by the House of Representatives with most of its original provisions intact. One contentious amendment that would have required that all cargo bound for the United States be screened before leaving foreign ports was voted down by lawmakers.

If approved, the bill would require that the Department of Homeland Security (DHS) develop and implement a strategic plan to enhance maritime security. The measure would also require that DHS develop and implement a plan to improve existing programs that identify high-risk containers moving through the international supply chain.

H.R. 4954 would require that states submit to the federal government biographic information on current and future employees who have access to secured areas of seaports. DHS would compare this information to data contained in terrorist watch lists.

The measure would additionally require that DHS establish minimum standards and verification procedures for securing containers in transit, including international standards for containers moving through the global supply chain. DHS would also submit a plan to Congress for deployment of radiation detection equipment at all U.S. ports.

COUNTERFEITING. A bill (formerly H.R. 32) that would prohibit trafficking in labels or similar packaging, with knowledge that a counterfeit mark has been applied to them, has been signed into law (P.L. 109-181).

Under the new law, the definition of “counterfeit mark” includes any mark on a label or packaging that is substantially indistinguishable from a trademarked design, and that is likely to mislead consumers.

Any article that bears a counterfeit mark will be subject to forfeiture.

DOCUMENT FRAUD. A bill (S. 2631) introduced by Sen. Charles Schumer (D-NY) would prohibit the production, transfer, possession, and use of false travel documents. The bill has no cosponsors and has been referred to the Senate Judiciary Committee.

AVIATION SECURITY. A bill (H.R. 4439) that would overhaul the Transportation Security Administration (TSA) to increase aviation security has been approved by the House Homeland Security Committee’s Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity. The bill must now be taken up by the full committee to proceed.

The bill would require that the TSA reorganize to focus resources on areas that are at greatest risk of terrorist attack and would mandate that the TSA create a program to instantaneously prescreen all international passengers traveling to the United States.

The bill would also allow state and local governments to compete with federal contractors to provide airport security. Under the bill, the TSA would be required to create new training standards to help those who check documents to recognize fraudulent identification.

Under the measure, the government would create an independent agency within the TSA to focus on airline passenger and baggage screening.

HELICOPTER SAFETY. A bill (H.R. 4765) introduced by Rep. Anthony D. Weiner (D-NY) would require the government to designate an area at high risk for a terrorist attack as a high-threat helicopter-flight area. The government would screen all passengers and property transported from a high-threat flight area to a standard passenger helicopter. The screening would be equivalent to that provided for passengers and property carried aboard a domestic passenger aircraft. The bill would also require that the government develop a plan to conduct the screening, including acquiring equipment and hiring and training personnel.

H.R. 4765 has no cosponsors and has been referred to the House Homeland Security Committee and the House Transportation and Infrastructure Committee.



DRUG TESTING. A bill (H.B. 1205) introduced in the Missouri House of Representatives would make it illegal to alter or falsify drug or alcohol test results. The bill would also create the crime of transporting a biological sample or adulterant with the intent of falsifying test results.

West Virginia

IMMUNITY. A bill (S.B. 186) currently under consideration in the West Virginia Legislature would provide employers immunity in disclosing information about former employees. Immunity would be waived, however, in cases where the former employer knowingly gives information that is false, disclosed with reckless disregard for the truth, deliberately misleading, or malicious.

This column should not be construed as legal or legislative advice.