ASSAULT AND BATTERY
Suspected shoplifter claimed he was kicked and punched
VERDICT Defense
CASE James A. Cusato v. Home Depot U.S.A. Inc., David Bousquet, Tim Carvalho, Sean McSweeney and Danny Alegre; No. 1-03-CV-003043
COURT Superior Court of Santa Clara County, Santa Clara, CA
JUDGE John F. Herlihy
DATE 9/23/2005
PLAINTIFF
ATTORNEY(S) Todd E. Jones, Law Offices of Todd E. Jones, Sunnyvale, CA
DEFENSE
ATTORNEY(S) Paul Caleo, Burnham Brown, Oakland, CA
FACTS & ALLEGATIONS
Plaintiff alleges that he sustained personal injuries and damages as a result of an incident at the Home Depot store in Campbell, California, on August 13, 2002. Plaintiff alleges that he resisted the efforts of Home Depot's employees who were attempting to detain him on suspicion of shoplifting. Plaintiff claims that the defendant employees allegedly tackled, beat, kicked and punched him without provocation and painfully restrained him until the local Campbell police arrived. Plaintiff was 72 years old on the date of the incident. Plaintiff further alleged that the loss prevention officer that originally detained him had a history of using excessive force, and that Home Depot was aware of that conduct and negligently retained him to continue working as a loss prevention agent. In contrast, defendants claimed that the loss prevention agent observed plaintiff removing telephone wires from a cordless telephone box and concealing it in his clothing as well as in the cardboard packaging of another item that plaintiff had selected and placed in his shopping cart. The defendant's loss prevention agent then continually observed plaintiff until he approached the cash register and paid for the one item in his shopping cart. Defendant's employees observed that plaintiff failed to pay for the other items he had concealed in his clothing. Defendant's employees then stopped plaintiff outside the store and asked him to return so that they could discuss the items that were not paid for. Plaintiff voluntarily went with the defendant's employees to a training room at the back of the store. While obtaining personal information from the plaintiff, he became agitated and aggressive. During the interview of the plaintiff conducted by the defendant's employees, plaintiff threw a box at the loss prevention agent and then rush towards him with his fists raised. At least one of the other employees then stepped in and restrained plaintiff by placing him a bear hug. Plaintiff continued to resist and ultimately he was taken down to the ground when a member of the Campbell police department walked into the training room and took control. During the struggle defendant's loss prevention agent did not physically touch plaintiff.
Defendants claimed that their actions were protected by California Penal Code section 490.5 (the Merchant's Privilege) as well as the affirmative defense of "defense of others.
"INJURIES/DAMAGES
Plaintiff claimed that he suffered contusions to the right side of his body, as well as a horizontal fracture of his tooth #12 including an abrasion to his cheek.
DEMAND
Last pretrial demand from plaintiff was $35,000. Plaintiff's counsel asked the jury to award up to $1 million in damages.
OFFER
There were never any offers of settlement from the defendants throughout the litigation.
PLAINTIFF'S EXPERTS
Gregory Whitley, M.D. trauma & emergency room medicine Los Gatos Community Hospital
Stephen Glazier, D.D.S.
Penn Valley, CA
DEFENDANT'S EXPERTS
Alan Gluskin, D.D.S. Professor of Dentistry
University of the Pacific Dental School
San Francisco, CA