While on break, couple of employees at a US Sprint store (or kiosk) took off after a shoplifter of a nearby Apple Store and were fired for their trouble:

Sadly, it seems someone at Sprint corporate was not fond of their heroism or the way they had boosted business. Unbeknownst to the two Sprint sprinters, the company has a rule about employees not intervening in shoplifting. This was something they only discovered when they were given their marching papers.

Though stunned, they still don’t seem to resent Sprint. They just wish they hadn’t been let go for ensuring a shoplifter didn’t get away. It wasn’t as if the chase happened on Sprint premises, and the two were on a break.

Still, they seem remarkably sanguine in the circumstances. They have created a Facebook page, on which McGhee wrote: “I want to tell everybody out there that we do not want you to hate Sprint and their service, we want people to continue to be Good Samaritans and look out for each other.”

The two already have more than 870 Facebook friends and are looking for work at a difficult time, particularly for Shoemaker, who has just got engaged.

Well, that’s their story anyway. Sprint won’t comment.

There are basically two reasons why Sprint would behave in such a peculiar manner. The first is that there is a company policy against the pursuit of shoplifters intended for when they are on-duty and they refused to carve out a common-sense objection. The second and more likely is that this policy exists for liability reasons and even though the employees were on break, they were still on the clock and therefore had something happened to the employees, the thief, or a bystander, they would have been liable.

And this is, apologies to Sheila, Kevin, TL, and any other lawyers reading this blog, why people hate lawyers. As much as I want to come down on Sprint on this, does anybody doubt for a second that a lawyer finding out that they were on the clock (even if on break) would not consider suing Sprint? Because it didn’t happen on Sprint property and because they were not acting under the explicit or implicit direction of Sprint, they might have a harder time of it than a similar incident that occurred at Best Buy, which I will get to later. Why risk it, though? A failure to fire these heroes here could help another plaintiff’s attorney in a future case where another Sprint hero acts against company policy by saying that the policy wasn’t enforced and thus Sprint is liable. Better not to risk it and fire a couple of disposable employees.

Even in the current economy, I suspect that they will be getting job offers soon.

There was a similar story about Best Buy from a couple years ago. Some companies, like Best Buy, seem to attract stories like this one. They were caught with a memo outlining who were and were not “desirable customers” and encouraged employees to give the latter an unpleasant experience. They rigged the internal computers to go to a fake Internet site that showed deals different than the ones that people saw on the real Internet and expected to get in the store. They had an employee that called the Secret Service because they did not believe that there was such a thing as a $2 bill. And they’re the kings of the Mail-in Rebate Scam which I consider to be a bad business practice all-around. And, of course, they fire employees for trying to stop thieves.

At least in the Best Buy case, BB has an argument that they were company employees acting on company time under company direction. Their own manager got hurt in the scuffle. Even if the Corporate HQ people in Minnesota wanted to cut the kids some slack, they wouldn’t have had the maneuvering room that Sprint had to carve out an exception.

But what I find interesting about these cases, and leaving liability issues aside, is the notion that such things are better left to the people whose job it is to take care of them. More than one commenter on the Sprint article said that everybody in retail knows you’re supposed to leave that sort of thing to the security guards (according to the boys, the security guard was requesting help). Of course, because of liability issues again it’s often that security guards themselves are not supposed to intervene. Better left to the police. That’s an argument you hear regularly about gun control, too, which police generally support. “Leave it to us,” and “don’t get a gun because somebody might get hurt.” That’s not to say that it’s not often sound advice most of the time, but even so I find the whole idea a little unsettling.

In the greater scheme of things, shoplifting is not all that big of a deal. Letting shoplifters go may encourage more shoplifting, but people don’t generally get hurt too badly. I don’t know if it’s just my testosterone-fueled id, but that, too, doesn’t sit right with me. I mean, I can understand Best Buy saying “our stuff isn’t worth that” but what about if it’s someone’s shopping bag that’s lifted? This is of course obscenely hyperbolic, but if a Sprint employee is liable for intervening in a mall against a thief who stole from another store and liability law says that this is right, are we actively encouraging social disinterest?

Or is it in its own way the opposite of “Leave it to the experts.” A mall guard is liable for chasing down a shoplifter. A kiosk employee is liable. So the only person left to do it is… somebody with no connection to anything whatsoever. At least they’re (usually) protected by Good Samaritan laws.


Category: Courthouse

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18 Responses to Canned Samaritans

  1. cleared in hot says:

    are we actively encouraging social disinterest?

    You’re damn right we are. There are “authorities” for everything, and you are not it. Ever.

    And we wonder why nobody does anything when some psycho-shooter goes off somewhere. We’re conditioned not to.

    Truth is, even winning a liability case is probably more expensive than an enforced “non-intervention” policy. That’s sad.

    But in this case, it’s understandable. There was no issue of someone under immediate threat of harm, just a guy running off with some stuff. Do you know what kind of force is okay (legally) to use to stop him? Neither do I. Is it okay to punch him? Tackle him? We all might agree that he deserves it, but would it be assault? Probably.

  2. Barry says:

    Call me naive (go ahead, everybody else does) but I can’t for the life of me figure out the logic behind such legal liabilities.

    And – as a caveat – it’s not lawyers that I call foul on in these cases. While I’m sure there are plenty out there ready to chase their share of ambulances, I put much more blame on judges and juries in not assessing the reality of where damages actually occurred and how far an individual’s (or corporation’s) real life responsibility to ensure their own and employees’ safety goes.

    If any person goes after another person engaged in a criminal act, and they are not employed in a position where such apprehension is part of the job (i.e. law enforcement) then they should automatically assume the liability for any injury to themselves or others, themselves. A Sprint employee on break that chases down a shoplifter from an Apple store is 100% responsible for himself and his own safety – not Sprint, not the mall, not anybody else (well, if the shoplifter turns around and fires a gun at the guy or otherwise engages in physical resistance then the blame shifts to him, but I’m presuming the pursuer risks injury outside that scenario).

    There is no reason whatsoever that I can think of, no logic that could be invoked that should lead a judge or jury to decide that Sprint, the mall, or anyone else is responsible for an injury that may befall an employee outside the purview of his own job. Their policy requires them not to engage a shoplifter, it doesn’t require them TO engage one.

    If I were a judge or sitting on a jury, give me one compelling argument a plaintiff attorney could bring up to convince me that Sprint is responsible for injuries or damages sustained outside of the store by employees acting on their own behalf?

    And to push it further, give me one compelling argument that Best Buy would be liable, even if the employee or a bystander is injured chasing down a shoplifter inside their own store? The employee in both cases is not required to pursue – they did it of their own volition and desire to do their Civil Duty (and loyalty to the company) – and therefore should automatically, in the eyes of the law, be held solely responsible for the results of his own actions.

    Again, the criminal himself should also be liable for causing the damage he initiates in perpetuating the crime, but that’s only if he’s caught 🙂

  3. Sheila Tone says:

    “But in this case, it’s understandable. There was no issue of someone under immediate threat of harm, just a guy running off with some stuff. Do you know what kind of force is okay (legally) to use to stop him? Neither do I. Is it okay to punch him? Tackle him? We all might agree that he deserves it, but would it be assault? Probably.”

    I agree. If I were a business owner, I would not want my sales employees taking it upon themselves to use physical force to prevent (alleged) property crimes. Such efforts seem ripe for disaster.

    I sympathize with the fact they were coming to the aid of their security guard, though.

  4. cleared in hot says:

    If I were a judge or sitting on a jury, give me one compelling argument a plaintiff attorney could bring up to convince me that Sprint is responsible for injuries or damages sustained outside of the store by employees acting on their own behalf?

    Unfortunately, it seems what juries find compelling is less where the blame actually lies and more the fact that someone has been hurt, and Sprint would be able to pay without much loss felt. I can hear it now…”they’re a huge company, they won’t miss $1,000,000….”

    Again, the criminal himself should also be liable for causing the damage he initiates in perpetuating the crime, but that’s only if he’s caught.

    Uh…not exactly. If I steal your favorite DVD, I did petty theft. If you run over a family in the crosswalk in your car while trying to catch me, that’s your liability. That’s the point here – that by giving chase you are potentially increasing the likelihood of someone getting hurt and although I would agree that Sprint shouldn’t have liability, the practical consideration is that they will, if only because jurors see somebody crying and a company with a lot of money.

  5. Sheila Tone says:

    “If I were a judge or sitting on a jury, give me one compelling argument a plaintiff attorney could bring up to convince me that Sprint is responsible for injuries or damages sustained outside of the store by employees acting on their own behalf?”

    A great argument would be that while the store has a paper policy against employee physical intervention, the store doesn’t really mean it. If these two cowboys are celebrated rather than punished for violating the policy, it encourages similar acts of bravado.

  6. trumwill says:

    As a practical consideration, I agree that in current law Sprint would be liable and their actions make a degree of sense. That’s why I said I can’t come down too hard on them (and even mention Sheila’s notion about failure to firing them coming back to haunt them in future cases).

    But should they be? For something that employees do on their own volition on their break? I really don’t think so, even if Sprint doesn’t actually fire employees that do that sort of thing. Even in this case where the accused is merely a thief. There are obviously limits to what someone should be able to do, but a tackle to subdue the guy? A punch if the guy fights back? I think there should be an exemption carved out for defense of property the same way that there is for defense of others.

    Even if an employee goes demonstrably too far, I don’t think that the employer should be liable unless they actively encourage that sort of thing.

    I think the real gray area occurs when there isn’t uniformed personnel saying “Stop! Thief!” or something like it. Or if they think they saw something but are not sure. I’m much more amenable to “this type of thing is problematic because innocent people will get tackled and punched” than “this type of thing is problematic because a guilty person will get tackled and punched too hard.”

  7. Barry says:

    “Cleared” and Sheila,

    Your arguments illustrate real world examples of what might be the result of such rulings, but still don’t tell me how a judge or jury – whose job it is to assess where true culpability and responsibility lies, within the law – can logically presume the guilt of a party that has no part in the proceedings. One shoplifter, one (or two) law-abiding citizens, one party in pursuit of the other. The fact that the citizens happen to be employed by a company doesn’t logically suggest the company is responsible, regardless of what kind of policy of “non-interference” they have in place. It doesn’t track, and it shouldn’t track.

    And judges, at the first sign juries were beginning to award settlements based on the deep pockets of the peripheral yet uninvolved employers, should have tossed out the cases before it ever got to a jury. Or instructed the juries on what it means to assess responsibility, and if they still came back with big awards they should suspend the judgment. It comes back to the judicial system itself behaving with extreme irresponsibility – one I would almost judge criminal in itself, because it effectively cripples a lot of companies’ ability to do business.

  8. trumwill says:

    I think what particularly irks me about the Sprint case is that it should be apparent that the guys were not acting under the direction of their employer. Not only were they on break, but they weren’t even protecting Sprint property. But Sprint still has reason to worry because judges and juries might not care. And even if juries don’t care, they still have the expense of a trial.

    The Best Buy case is more ambiguous in this regard. How Best Buy chooses to defend its property and not defend its property it has a great deal more control over than what it’s employees do while on break. Even there, if I were on a jury, I would give Best Buy (a company I should repeat that I hate) a benefit of the doubt if something bad happens in the course of their chasing down a thief.

    On a sidenote, my comment about “this is why people hate lawyers” was unfair. I meant to change it before it got posted, but forgot.

  9. Peter says:

    I generally don’t like the idea of government interference in private business matters, but this is one exception. It would be ideal if states passed laws making it illegal for businesses to fire or otherwise discipline employees who violate company “do not intervene” policies. Companies aren’t going to drop these policies on their own, given the very real liability issues, so a bit of prodding from the government is in order.

  10. Sheila Tone says:

    “The fact that the citizens happen to be employed by a company doesn’t logically suggest the company is responsible”

    It’s called the doctrine of respondeat superior, and it’s well-settled.

    Whether they were acting in service of their employer or were off on a “frolic” is a question of fact that would have to be put to the jury.

  11. Barry says:

    The doctrine of whatever whosits?

    It may be well-settled, but it should not have been because logically, cause does not precede effect here.

    “Blame” does not exist, real world, for a company who employs a person who does damage or takes damage not in line with their job. Period. End of Story. I’m not saying that’s the legal statute, but it’s the human one.

    If Best Buy or Spring does not require their employees to resist or pursue shoplifters (as it might a security guard in their employ) then there’s simply no way it should be held responsible for their employee’s behavior when doing something that causes damage to themselves or others – regardless of whether it’s on company time or not. They’re not their mothers, they’re not responsible for raising the employees or teaching them right from wrong (I do agree that parents can be held responsible in some cases for the errors of their children. That’s another argument for another day).

    I’m just saying that any legal system that allows respondeat superior to become established precedent is doing its society a big disservice.

  12. Kevin says:

    The purpose behind respondeat superior is to shift the loss from the employee, who usually cannot bear it, to the employer, who can. For example, John Q. Employee drives a delivery van for Employers-R-Us. While delivering product to a customer, he runs over a helpless bystander, Paul Plaintiff, who suffers catastrophic injury. If Plaintiff sues Employee, he probably won’t recover very much, because Employee likely doesn’t have very much money. If Plaintiff sues Employers-R-Us, their likely response would be,
    “Hey, we didn’t do anything wrong. We vetted Employee and found no evidence that he was a reckless driver, so while we’re terribly sorry that you are injured, we’re not paying you a dime.” Respondeat superior is the law’s way of making Plaintiff whole by allowing Plaintiff to recover from Employer, even in the absence of negligence on the employer. The law justifies respondeat superior on the basis that a certain amount of employee negligence is foreseeable, and the employer is better able to allocate that loss amongst its customers as a cost of doing business. I, for one, think that respondeat superior is good, both as a matter of policy and law.

    One exception to respondeat superior is for “frolics and detours.” Employers are not liable for acts committed by their employees outside the scope of their employment, for obvious reasons.

    So in the Sprint case, the issue would be whether the employees were acting in the course and scope of their employment. Sprint would have a very solid argument that they are not. For all the angst over the perceived errors of our civil justice system, I am unaware of any specific case where an employer was held liable when an employee pursued a shoplifter. So we may be tilting at windmills here.

    As for Sprint’s policy and its termination of these employees, it certainly seems that it is going too far. A lot of businesses often seem overly concerned about the prospect of being sued. Another example is in giving references. Many companies won’t say that an ex-employee was a bad employee for fear of losing a defamation lawsuit. In my opinion, this fear is not justified, for two reasons. First, the law of defamation recognizes a qualified privilege in these situations. Second, truth is a defense, so if the former employer says, “This person was often late, had a bad relationship with the other employees, and often had alcohol on his breath,” and those statements are true, then there is no liability.

    Of course, to get to that point, the company must pay to defend the lawsuit, and many are litigation shy. I certainly understand. But the only other alternative I know of would be to close the courthouse, an option that many would find appealing, but would lead to far more injustice than exists in the status quo.

  13. Sheila Tone says:

    I’m sorry, I missed the part earlier about them being employees of a different place (Sprint) than the place that got shoplifted from (Apple). My bad.

    I wonder if there’s if Sprint already had some reason it didn’t like those two employees. It does seem excessive. But if the company has reason to worry about a lawsuit from this particular case, firing the two employees helps its defense. When you’re arguing your employees violated your policy in committing a tort, it does matter what the employer did about the violation.

    But Kevin’s right, it’s not just about whether Sprint would win at trial, or even get out of the case before trial on a motion for summary judgment (which seems likely). It’s also about whether they can state a claim sufficient to make their company defend the lawsuit for a substantial period of time. It’s been a while since I defended this type of case, but I think they could make it past the demurrer stage (that’s at the beginning of the case, when you ask a judge to decide if the complaint even states a claim against you). “Defendant was an employee of Sprint. While working for Sprint, he caused damages to Plaintiff.” It’s true. And the fact he was on break at the time doesn’t necessarily dispose of liability. Whether his actions were within the course and scope is a factual question, and so needs to be litigated.

    Here are some facts from the story that could be used to support a course and scope argument: “Shoemaker told the Denver Westword: “The lady at the Apple store was so thankful. And she told me, ‘We’ve been sending you business over the last week,’ because a drive that Sprint supports works really well with their iPad. They were telling people to come over and get it from us.””

    So even though they don’t work for Apple, they seem to have a relationship with Apple that boosts their sales.

    The bigger issue is whether it’s better public policy to encourage, or discourage, acts of vigilantism. In this case, these guys were right about the person being a shoplifter, and there’s no evidence they did anything we’d consider excessive or crazy to stop him. But I helped defend a couple of cases involving businesses where defendants argued plaintiff had done something criminal, but there was question. For instance, one time we had restaurant whose contracted parking service had an employee who punched a patron of the restaurant as he was leaving and walking by the parking lot. He was drunk. Disputed as to whether he was also damaging a sign on the premises when he was confronted by the parking employee, and also disputed as to who swung first. Judge ruled it could go to trial.

    My point being, it’s that type of crap that businesses have to worry about when employees or agents try to stop property crime from happening.

  14. trumwill says:

    I don’t think that Sprint really had it in for the employees. From what I gathered, the decision to fire them came from the central office. The legal department, for the reasons that you outline and I mention.

    I also don’t think that Sprint’s relationship with Apple should qualify. Apple started sending customers Sprint’s way after the event occurred. At least that’s my reading of it.

    As the husband of a doctor, I am quite sympathetic to the “you lose even if you don’t lose the trial” position that Sprint is in. It’s one of the things that just kind of makes me frustrated with the whole system.

    As settled law as it is, I think my main point of contention with the law is with respondeat superior itself. Unless the employer is found to have done something specifically wrong, I don’t think that the law should hold them liable. Not because I am unsympathetic to the plaintiff who had the misfortune of being wronged by shallow pockets nor because I begrudge them compensation for their injuries (if the deep pockets actually did do something wrong, they should be taken to the cleaners), but because I have the I guess naive believe that you should only be held accountable for something that you did wrong and not because you lost the spit-happens lottery.

  15. Sheila Tone says:

    “As settled law as it is, I think my main point of contention with the law is with respondeat superior itself. Unless the employer is found to have done something specifically wrong, I don’t think that the law should hold them liable.”

    By “specifically wrong,” do you count negligence? As in, hiring problematic employees, or failing to supervise employees sufficiently?

    I think if you’ve directed someone to do something that benefits you, and that person causes damage, you should be responsible for it. Otherwise you’d have no motive to restrict or control that person’s behavior.

    We generally give businesses more trust than we’d give random individuals. It makes sense to hold a business responsible for the behavior of the individuals who work for it.

    The doctrine helps employees, too. The fact that the employer is on the hook for employee negligence motivates the employer to defend the employee. (In California, the Labor Code already requires an employer to indemnify the employee for the costs of most lawsuits.)

  16. Sheila Tone says:

    “As settled law as it is, I think my main point of contention with the law is with respondeat superior itself. Unless the employer is found to have done something specifically wrong, I don’t think that the law should hold them liable.”

    By “specifically wrong,” do you count negligence? As in, hiring problematic employees, or failing to supervise employees sufficiently?

    I think if you’ve directed someone to do something that benefits you, and that person causes damage, you should be responsible for it. Otherwise you’d have no motive to restrict or control that person’s behavior.

    We generally give businesses more trust than we’d give random individuals. It makes sense to hold a business responsible for the behavior of the individuals who work for it.

    The doctrine helps employees, too. The fact that the employer is on the hook for employee negligence motivates the employer to defend the employee. (In California, the Labor Code already requires an employer to indemnify the employee for the costs of most lawsuits.)

  17. trumwill says:

    By “specifically wrong,” do you count negligence? As in, hiring problematic employees, or failing to supervise employees sufficiently?

    Depends on the nature of the negligence, but yes. If the plaintiff can make the case that the employee was improperly of insufficiently trained, that is fair game.

    If you direct them to do something inherently risky, such as pull a gun on a shoplifter, I am somewhat sympathetic*. If they’re being directed to drive a semi in adverse weather conditions, I am somewhat sympathetic**.

    Great point about employee indemnification benefiting employees. Doesn’t that lead to a lot of the independent contracting thing, though? Seems that none of the “cable guys” actually work for the cable company. I have always assumed that liability (and benefits) is one of the reasons. Or are they liable if they are independent contractors working under the direction of a company?

    * – That does not extend to “and if anybody breaks these rules and is not immediately terminated than that’s de facto direction”.

    ** – Ditto for failing to fire any employee that does otherwise. However, if they have policies that require delivery dates regardless of weather condition wherein a driver would be fired if he did not take said risks, that would be de facto direction.

  18. Kevin says:

    As a practical matter, plaintiffs asserting respondeat superior will almost always assert independent negligence on the part of the employer (e.g., negligent supervision, negligent entrustment, failure to train, etc.). As for whether respondeat superior applies to independent contractors, I don’t believe it does so long as they are true independent contractors, but as a practical matter, it really doesn’t matter because there is still a duty of reasonable care.

    As far as your complaint about respondeat superior penalizing employers for someone else’s negligence, I hear where you’re coming from, but I disagree. Employers make money from their employees. There’s nothing morally offensive about requiring them to bear the cost of their mistakes as well.

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