GENERAL ASSEMBLY OF NORTH CAROLINA
1995 SESSION
CHAPTER 185
The General Assembly of North Carolina enacts:
Section 1. G.S. 1-538.2 reads as rewritten:
"§
1-538.2. Civil liability for shoplifting and larceny,
shoplifting, theft by employee. employee, embezzlement, and
obtaining property by false pretense.
(a) Any person, other
than an unemancipated minor, who commits an act that is punishable under G.S.
14-72.1 or G.S. 14-72 G.S. 14-72, 14-72.1, 14-74, 14-90, or 14-100 is
liable for civil damages to the owner of the property. In any action
brought by the owner of the property he is entitled to recover the value of the
goods or merchandise, if the goods or merchandise have been destroyed, or any
loss of value to the goods or merchandise, if the goods or merchandise were
recovered, or the amount of any money lost by reason of the theft or embezzlement
or fraud of an employee. In addition to the above, the owner of the
property is entitled to recover any consequential damages, and punitive
damages, together with reasonable attorneys fees. If damages are
assessed against the defendant, in favor of the plaintiff, the amount
established for actual or consequential damages shall be trebled. The
total of all compensatory and consequential damages awarded to a
plaintiff against a defendant in an action under this section shall
not be less than one hundred fifty dollars ($150.00) and shall not exceed
one thousand dollars ($1,000). ($1,000), except an act punishable
under G.S. 14-74 or G.S. 14-90 shall have no maximum limit under this section.
(b) The parent or legal
guardian, having the care, custody and control of an unemancipated minor who
commits an act punishable under G.S. 14-72.1 or G.S. 14-72, G.S.
14-72, 14-72.1, 14-74, 14-90, or 14-100, is civilly liable to the owner of
the property obtained by the act if such parent or legal guardian knew or
should have known of the propensity of the child to commit such an act; and had
the opportunity and ability to control the child, and made no reasonable effort
to correct or restrain the child. In an action brought against the parent
or legal guardian by the owner, the owner is entitled to recover the amounts
specified in subsection (a) except punitive damages. The total
compensatory and consequential damages awarded to a plaintiff against the
parent or legal guardian shall not be less than one hundred fifty dollars
($150.00) and shall not exceed one thousand dollars ($1,000).
(c) A person may not
be found liable under this section unless a sign was conspicuously displayed in
the place of business at the time the act alleged in the action occurred
stating that civil liability for shoplifting and for theft by an employee is
authorized under this section. An action may be brought under this
section regardless of whether a criminal action is brought or a criminal
conviction is obtained for the act alleged in the civil action.
(c1) For the purposes of this section, consequential damages shall include, but shall not be limited to:
(1) The salary paid to any employee for investigation, reporting, testifying, or any other time related to the investigation or prosecution for any violation under subsection (a) of this section; and
(2) Any costs, such as mileage, postage, stationery, or telephone expenses that were incurred as a result of the violation.
(c2) The owner of the property may seek payment for damages under subsections (a) and (b) of this section prior to filing a civil action, by sending the violator a demand letter. If such a letter is sent, it shall be substantially similar to the following:
'Our records show that on (date), you unlawfully took possession of property from (store name/owner of the property), located in (city, state), without the consent of (store name/owner of the property), without paying for the property, and with the intent of converting the property to your own use. In accordance with G.S. 1-538.2, we are authorized to demand that you pay damages of one hundred fifty dollars ($150.00).
In the event you fail to comply with our demand for one hundred fifty dollars ($150.00) within 15 days from the date of your receipt of the notice, you may be held civilly liable for an amount not less than one hundred fifty dollars ($150.00) and not more than one thousand dollars ($1,000) in a civil action against you to recover the penalties and damages authorized by law, which include court costs and attorneys' fees. If you pay the one hundred fifty dollars ($150.00), (store name/owner of the property) will have no further civil remedy against you arising from the events occurring on (date).
If you are the parent or legal guardian of an unemancipated minor who unlawfully took possession of property as set out above, you can be held liable if you knew or should have known of the propensity of the child to commit the act complained of, and you had the opportunity and ability to control the child and you made no reasonable effort to correct or restrain the child.
If you believe you have received this notice in error, please contact (name) immediately.
YOU HAVE A RIGHT TO CONTEST YOUR LIABILITY IN COURT.'
(c3) The owner of the property sending the demand letter required by this section shall have qualified privilege from any civil liability resulting therefrom provided that there is no excessive publication and that the owner acted in good faith and without malice.
(c4) If the recipient of a notice pursuant to subsection (c2) of this section pays the demanded one hundred fifty dollars ($150.00) within 15 days of the recipient's receipt of the notice, the owner of the property shall have no further civil remedy against that violator for the incident described in the notice.
(d) Nothing contained in this act shall prohibit recovery upon any other theory in the law."
Sec. 2. G.S. 14-72 is amended by adding the following subsection:
"(d) Where the larceny or receiving or possession of stolen goods as described in subsection (a) of this section involves the merchandise of any store, a merchant, a merchant's agent, a merchant's employee, or a peace officer who detains or causes the arrest of any person shall not be held civilly liable for detention, malicious prosecution, false imprisonment, or false arrest of the person detained or arrested, when such detention is upon the premises of the store or in a reasonable proximity thereto, is in a reasonable manner for a reasonable length of time, and, if in detaining or in causing the arrest of such person, the merchant, the merchant's agent, the merchant's employee, or the peace officer had, at the time of the detention or arrest, probable cause to believe that the person committed an offense under subsection (a) of this section. If the person being detained by the merchant, the merchant's agent, or the merchant's employee, is a minor under the age of 18 years, the merchant, the merchant's agent, or the merchant's employee, shall call or notify, or make a reasonable effort to call or notify the parent or guardian of the minor, during the period of detention. A merchant, a merchant's agent, or a merchant's employee, who makes a reasonable effort to call or notify the parent or guardian of the minor shall not be held civilly liable for failing to notify the parent or guardian of the minor."
Sec. 3. G.S. 14-72.1(c) reads as rewritten:
"(c) A merchant, or the merchant's agent or employee, or a peace officer who detains or causes the arrest of any person shall not be held civilly liable for detention, malicious prosecution, false imprisonment, or false arrest of the person detained or arrested, where such detention is upon the premises of the store or in a reasonable proximity thereto, is in a reasonable manner for a reasonable length of time, and, if in detaining or in causing the arrest of such person, the merchant, or the merchant's agent or employee, or the peace officer had at the time of the detention or arrest probable cause to believe that the person committed the offense created by this section. If the person being detained by the merchant, or the merchant's agent or employee, is a minor under the age of 18 years, the merchant or the merchant's agent or employee, shall call or notify, or make a reasonable effort to call or notify the parent or guardian of the minor, during the period of detention. A merchant, or the merchant's agent or employee, who makes a reasonable effort to call or notify the parent or guardian of the minor shall not be held civilly liable for failing to notify the parent or guardian of the minor."
Sec. 4. This act becomes effective December 1, 1995, and applies to acts committed on or after that date.
In the General Assembly read three times and ratified this the 6th day of June, 1995.
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Dennis A. Wicker
President of the Senate
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Harold J. Brubaker
Speaker of the House of Representatives