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Gortarez v. Smitty’s Super Valu, Inc.

Arizona Supreme Court
680 P.2d 807 (1984)



Ernest Gortarez (plaintiff), a 16-year-old boy, and his 18-year-old cousin Albert Hernandez (plaintiff), were shopping in a Smitty’s Super Valu, Inc. (Smitty’s) (defendant) store one evening. As the young men were leaving the store, a store clerk had a “hunch” that Gortarez had taken, without paying for, a 59 cent vaporizer commonly used to scent a vehicle. The store clerk notified an assistant manager and the store’s security guard, Daniel Gibson. The three store employees ran after the two young men and stopped them outside of the store. Gibson began searching Hernandez without saying what he was looking for. During the search, Hernandez did not resist and repeatedly denied that he or Gortarez had taken anything. At the same time, Gortarez yelled at Gibson to leave Hernandez alone. A struggle ensued and Gibson placed Gortarez in a choke hold. Gibson kept Gortarez in the choke hold even after Gortarez insisted that he had left the vaporizer inside of the store. Gortarez suffered physical injuries as a result. After a store clerk confirmed that the vaporizer was where Gortarez said he had left it inside of the store, the young men were released. Gortarez required medical treatment for his injuries. The young men and their parents (collectively Plaintiffs) filed suit against Smitty’s and Gibson (collectively Defendants) for false arrest and false imprisonment, assault, and battery. After a jury trial, the court directed a verdict for Defendants on the false arrest and false imprisonment counts. The jury returned a verdict for Gibson on the assault and battery counts. Plaintiffs appealed. The court of appeals affirmed the trial court’s judgment. The Arizona Supreme Court granted certiorari to review.

Rule of Law


Holding and Reasoning (Feldman, J.)

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