Jeff Lane v. Menard, Inc.

IN THE

Court of Appeals of Indiana

FILED

Jeff Lane, Jul 26 2024, 8:55 am

Appellant-Plaintiff CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

v.

Menard, Inc., Majestic Security, Inc., and Roberto Salgado,

Appellees-Defendants

July 26, 2024

Court of Appeals Case No.

23A-PL-2920

Appeal from the Lake Superior Court

The Honorable Stephen E. Scheele, Judge

Trial Court Cause No.

45D05-2208-PL-464

Opinion by Judge Tavitas

Judges Crone and Bradford concur.

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 1 of 16

Tavitas, Judge.

Case Summary

[1] Jeff Lane filed a complaint against Menard, Inc. (“Menards”), 1 Majestic

Security, Inc. (“Majestic”), and Roberto Salgado (collectively “the

Defendants”), in which Lane alleged confinement, false imprisonment, assault,

negligence, negligent hiring and supervision, and intentional infliction of

emotional distress. The Defendants filed a motion for summary judgment,

which the trial court granted.

[2] Lane appeals and presents several issues, which we consolidate and restate as

whether there was a genuine issue of material fact regarding whether the

Defendants had probable cause to believe Lane committed theft, thereby

justifying the Defendants’ brief detention of Lane. We conclude that the

designated evidence shows the Defendants did have probable cause.

Accordingly, we affirm the grant of summary judgment to Defendants.

Issues

[3] Lane presents five issues, which we consolidate and restate as whether there are

genuine issues of material fact regarding whether the Defendants had probable

cause to believe Lane committed theft, thereby justifying the Defendants’ brief

detention of Lane.

1

The retail stores operated by Menard, Inc. are called “Menards.” See, e.g., Appellant’s App. Vol. II p. 122.

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 2 of 16

Facts

[4] On July 20, 2022, Lane went to a Menards store in Hammond, Indiana, to buy

supplies for the remodeling of his home. Lane wore a blue t-shirt and cargo

shorts. While shopping, Lane took a “buck” knife off of a peg and placed it in

his shopping basket. Appellant’s App. Vol. III p. 67. The knife was in yellow

cardboard and plastic packaging. Lane then went to the electrical department

of the store to find electric plate covers. Lane also purchased blades for his

utility knife. According to Lane, he decided not to buy the knife due to its

$59.99 price, so he took the knife out of his basket and placed it somewhere in

the store. Although he could not remember precisely where, Lane later

acknowledged that he could have placed the knife in the electrical department

of the store. Lane eventually purchased the other items in his basket and left

the store.

[5] Earlier that same morning, Roberto Salgado—an employee of Majestic

assigned to work security at Menards—arrived at the Menards store to work as

a loss prevention officer. 2 As part of his morning routine, Salgado performed

an inventory check on high-theft items, which includes knives. Sometime after

completing the inventory, Salgado noticed that the frontmost buck knife on a

peg that he had just inventoried was no longer there. Salgado scanned the SKU

number for the knife and checked the store’s computer system, which revealed

2

At this stage in the proceedings, there appears to be no argument that Salgado was acting as an agent of

Menards. Majestic and Salgado admitted that Salgado “represented himself as, and was acting as, an agent

of Menard” at the time of the incident involving Lane. Appellant’s App. Vol. II p. 33.

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 3 of 16

that no buck knives of that type had been sold that day. Salgado then reviewed

the security camera video from that morning and saw that only one person—

later identified as Lane—had taken a buck knife and placed it in his shopping

basket. Salgado determined that Lane had left the store, so Salgado checked

the store to see if the knife had been placed on a shelf while Lane was out of the

camera’s view. Salgado, however, was unable to locate the knife. Salgado then

viewed other security footage to track Lane’s conduct while in the store. This

video revealed that, after Lane put the knife in his shopping basket, he went to

the electrical department of the store, where there are no security cameras.

After a few moments in this area, Lane reappeared, but the knife was no longer

in his shopping basket.

[6] Later that day, Anthony Perez arrived at the Menards store. Perez was

Salgado’s supervisor and also an employee of Majestic assigned to work at

Menards. Salgado told Perez about the missing knife. The two watched the

security video together and confirmed that Lane was the only person to have

handled the type of knife that was missing. Perez completed an incident report,

which provided in relevant part:

Buck knife was missing off the shelf and before that, counts were

full on knifes on correct amount on peg previously. And after

doing rounds again knife was gone. After further review

unknown subject took knife off the peg and walked around for

aw[h]ile and seen subjects last point of view by electrical and he

had knife on camera. Then after a few mins subject was in view

of camera again with no knife. Subject then went to check out

bought a few items and left. Subject left without further incident.

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 4 of 16

Appellant’s Appl Vol. II p. 124. 3

[7] A “few days” later, a Menards employee found the knife packaging in the

electrical area of the store. 4 Id. at 156. The package had been cut open, and the

knife was missing. Based on these events, Salgado believed that he had

probable cause that the buck knife was stolen on July 20, 2022; Perez concurred

in this assessment.

[8] On July 27, 2022, Lane returned to the Menards store wearing the same blue

shirt he had worn on July 22. Salgado approached Lane shortly after Lane

entered the store and informed Lane, “I need to talk to you. Come with me.”

Id. at 197. Salgado took Lane to the security office. Salgado never told Lane

that he was free to leave, nor did Lane attempt to leave. Lane was not

handcuffed, but Salgado did briefly block the door to the office. Sometime

during the interview, Salgado placed his arm across the door. Salgado

3

This portion of the report was typed in all capital letters. For the sake of readability, we have changed the

text to lower case where applicable. All grammatical and spelling errors are in the original.

4

In his reply brief, Lane claims that there is no designated evidence to show that the packaging was found in

the electrical area of the store. He is incorrect. Salgado testified in his deposition that, although he did not

personally find the package, “[s]omebody” found the package “in the electrical department[.]” Appellant’s

App. Vol. II p. 156. Salgado further testified that an employee in the electrical department found the

package, although he did not know which employee. Id. at 158.

Lane also claims that Salgado “recanted” this testimony. Appellant’s Br. p. 3. This is also incorrect. The

testimony Lane refers to occurred before the above-quoted testimony. Specifically, when asked how he knew

the package was found in the electrical department, Salgado stated, “You know, they didn’t tell us – you

know, when we walk around, then they – you know, they point stuff off to us and they said it’s in the – hey

we found a package and we brought it to the room there.” Appellant’s App. Vol. II p. 158. When asked who

he meant by “they,” Salgado clarified, “The electrical department. One of the employees.” Id. When asked,

“So you’re saying one of the . . . employees in the electrical department found it [i.e., the package],” Salgado

responded in the affirmative. Id. Salgado later admitted that he did not remember specifically which

employee. This evidence does not support Lane’s assertion that Salgado recanted his testimony.

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 5 of 16

questioned Lane about the missing knife. Lane, however, steadfastly denied

that he had taken the knife. Salgado also asked for Lane’s driver’s license,

which Salgado took and photocopied. When Salgado left the room to

photocopy Lane’s driver’s license, Lane telephoned his father. When Salgado

returned, he handed Lane a civil restitution form, but Lane refused to sign the

form. Salgado told Lane, “Okay. You don’t have to sign it.” Id. at 200.

Because the knife was valued at under $200, Salgado did not call the police.

Salgado also told Lane to pose for a “mug shot.” Id. at 162. After taking

Lane’s photo, Salgado told Lane that he was free to leave. Lane then left the

security office and completed his shopping trip. Lane was in the security office

for less than fifteen minutes.

[9] On August 12, 2022, Lane filed a complaint against the Defendants. Lane filed

an amended complaint on January 12, 2023, in which he alleged confinement,

false imprisonment, assault, negligence, negligent hiring and supervision, and

intentional infliction of emotional distress.

[10] On June 21, 2023, the Defendants filed a motion for summary judgment along

with a brief in support thereof and a designation of evidence. The Defendants

argued that they were statutorily immune from suit because they had probable

cause to detain Lane. Lane filed a response to the Defendants’ summary

judgment motion on July 6, 2023, along with his designation of evidence. The

trial court held a hearing on the summary judgment motion on November 8,

2023, at the conclusion of which it took the matter under advisement.

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 6 of 16

[11] On December 6, 2023, the trial court entered an order granting summary

judgment in favor of the Defendants. This order provides in relevant part:

After due consideration of all designated evidence in a light most

favorable to the non-movant/Plaintiff, the Court now FINDS

and DETERMINES that: 1) the Defendants had probable cause

to believe a theft of merchandise occurred from their retail

premises on or about 07/27/2022; 2) the Defendants had

probable cause to believe the Plaintiff had committed this theft;

3) the Defendants’ ensuing detention of the Plaintiff to

investigate this theft was conducted in a reasonable manner; 4)

I.C. § 35-33-6-1, et. seq. (the Indiana Shoplifting Detention Act)

precludes the Defendants from liability in this case; and 5) the

Motion for Summary Judgment as filed on 06/26/2023 should

be GRANTED.

Appellant’s App. Vol. II p. 15. Lane now appeals.

Discussion and Decision

I. Summary Judgment Standard

[12] Lane challenges the trial court’s grant of summary judgment to the Defendants

on Lane’s amended complaint. “‘When this Court reviews a grant or denial of

a motion for summary judgment, we stand in the shoes of the trial court.’”

Minser v. DeKalb Cnty. Plan Comm’n, 170 N.E.3d 1093, 1098 (Ind. Ct. App.

2021) (quoting Burton v. Benner, 140 N.E.3d 848, 851 (Ind. 2020)). “Summary

judgment is appropriate ‘if the designated evidentiary matter shows that there is

no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.’” Id. (quoting Murray v. Indianapolis Pub. Schs.,

128 N.E.3d 450, 452 (Ind. 2019)); see also Ind. Trial Rule 56(C).

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 7 of 16

[13] The summary judgment movant invokes the burden of making a prima facie

showing that there is no issue of material fact and that it is entitled to judgment

as a matter of law. Burton, 140 N.E.3d at 851. The burden then shifts to the

non-moving party which must then show the existence of a genuine issue of

material fact. Id. On appellate review, we resolve “[a]ny doubt as to any facts

or inferences to be drawn therefrom . . . in favor of the non-moving party.” Id.

We review the trial court’s ruling on a motion for summary judgment de novo,

and we take “care to ensure that no party is denied his day in court.” Schoettmer

v. Wright, 992 N.E.2d 702, 706 (Ind. 2013). “We limit our review to the

materials designated at the trial level.” Gunderson v. State, Ind. Dep’t of Nat. Res.,

90 N.E.3d 1171, 1175 (Ind. 2018), cert. denied.

II. The Indiana Shoplifting Detention Act

[14] Indiana Code Chapter 35-33-6, known as the “Shoplifting Detention Act,

‘permits the merchant’s agent to effect a warrantless arrest or detention where

the facts and circumstances known to the agent at the time of the arrest would

warrant a person of reasonable caution to believe the arrestee has committed or

is committing a theft on or about the store.’” Neff v. Wal-Mart Stores E., LP, 113

N.E.3d 666, 671 (Ind. Ct. App. 2018) (quoting Dietz v. Finlay Fine Jewelry Corp.,

754 N.E.2d 958, 967 (Ind. Ct. App. 2001)), trans. denied. Specifically, Section 2

of the Act provides:

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 8 of 16

(a) An owner or agent of a store who has probable cause to

believe that a theft has occurred[ 5] or is occurring on or about the

store and who has probable cause to believe that a specific

person has committed or is committing the theft:

(1) may:

(A) detain the person and request the person to identify

himself or herself;

(B) verify the identification;

(C) determine whether the person has in the person’s

possession unpurchased merchandise taken from the store;

(D) inform the appropriate law enforcement officers; and

(E) inform the person’s parents or others interested in the

person’s welfare that the person has been detained . . . .

* * * * *6

(c) The detention must:

(1) be reasonable and last only for a reasonable time; and

(2) not extend beyond the arrival of a law enforcement

officer or two (2) hours, whichever first occurs.

5

Lane claims that the Act does not apply to the present case because his detention occurred five days after

his initial visit to the Menards store. We disagree. The Act clearly and unambiguously applies when the

merchant or its agent has probable cause to believe that a theft “is occurring,” referring to something that is

presently occurring, or “has occurred,” referring to something that has occurred in the past.

6

The omitted portion of the statute applies only to suspected shoplifters who are under the age of eighteen.

Since Lane was born in 1968, these provisions are inapplicable here.

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 9 of 16

Ind. Code § 35-33-6-2.7 “A merchant who detains a suspected thief under the

Act must meet the same requirements for probable cause as a police officer

would.” Haltom v. Bruner & Meis, Inc., 680 N.E.2d 6, 9 (Ind. Ct. App. 1997).

[15] The Act also provides immunity to store owners and their agents from claims

arising out of a detention authorized by the Act:

A civil or criminal action against:

(1) an owner or agent of a store or motion picture exhibition

facility; or

(2) a law enforcement officer;

may not be based on a detention that was lawful under section 2

or 2.5 of this chapter. However, the defendant has the burden of

proof that the defendant acted with probable cause under section

2 or 2.5 of this chapter.

Ind. Code § 35-33-6-4.

III. Probable Cause

[16] In the context of law enforcement, “[p]robable cause to arrest exists when, at

the time of the arrest, the officer has knowledge of facts and circumstances that

7

Section 5 of the Act provides:

An owner or agent of a store may act in the manner permitted by section 2 of this chapter on

information received from any employee of the store, if that employee has probable cause to

believe that a:

(1) theft has occurred or is occurring in or about the store; and

(2) specific person has committed or is committing the theft.

Ind. Code § 35-33-6-5

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 10 of 16

would warrant a reasonable person to believe that the suspect has committed

the criminal act in question.” Clark v. State, 808 N.E.2d 1183, 1192 (Ind. 2004)

(citing Berger v. New York, 388 U.S. 41, 55, 87 S. Ct. 1873 (1967)). “The amount

of evidence necessary to meet the probable cause requirement is determined on

a case-by-case basis.” Id. (citing Ortiz v. State, 716 N.E.2d 345, 348 (Ind. 1999)).

The determination of probable cause “is grounded in notions of common sense,

not mathematical precision.” Id. (citing Ogle v. State, 698 N.E.2d 1146, 1148

(Ind. 1998)).

[17] Our Supreme Court has explained:

Probable cause is not a high bar, and is cleared when the totality

of the circumstances establishes a fair probability—not proof or a

prima facie showing—of criminal activity, contraband, or

evidence of a crime. Accordingly, probable cause does not

establish guilt. In fact, innocent activity will often supply a basis

for showing probable cause.

The probable-cause standard is also a fluid concept. It is not

readily, or even usefully, reduced to a neat set of legal rules, and

it cannot be quantified into percentages. This is because probable

cause turn[s] on the assessment of probabilities in particular

factual contexts, and it depends on the totality of the

circumstances, viewed as a whole.

Hodges v. State, 125 N.E.3d 578, 581-82 (Ind. 2019) (citations and internal

quotations omitted).

[18] Moreover, we have explained:

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 11 of 16

In the abstract, probable cause is a pure question of law, but its

existence in a given case is a mixed question of law and fact,

when one or more of the elementary facts thereof, relied upon, is

controverted . . . . Where the facts are uncontroverted, the court

must determine the existence or nonexistence of probable cause.

Wells v. Bernitt, 936 N.E.2d 1242, 1253 (Ind. Ct. App. 2010) (quoting Wong v.

Tabor, 422 N.E.2d 1279, 1285 (Ind. Ct. App. 1981)), trans. denied.

IV. The Defendants had probable cause to believe that Lane committed

theft.

[19] Here, the Defendants successfully argued to the trial court that Salgado had

probable cause to believe that Lane committed a theft. On appeal, Lane claims

that the trial court erred and that, considering only the information known to

Salgado at the time he detained Lane, no probable cause existed. 8

[20] Here, the facts are not wholly uncontroverted; instead, we must consider only

the designated evidence in the light most favorable to the non-moving party,

which, here, is Lane. Even so, we conclude that the designated evidence—even

when viewed in the light most favorable to Lane—shows that there was

sufficient evidence for the Defendants to conclude that, at the time that Lane

8

Lane’s briefs are replete with personal, ethical attacks on opposing counsel. We remind counsel that

“‘[p]etulant grousing’ and ‘hyperbolic barbs’ do not suffice as cogent argument as required by our appellate

rules.” Basic v. Amouri, 58 N.E.3d 980, 985 (Ind. Ct. App. 2016) (quoting County Line Towing, Inc. v.

Cincinnati Ins. Co., 714 N.E.2d 285, 291 (Ind. Ct. App. 1999), trans. denied). We also note that Lane has filed

a motion for sanctions, claiming that counsel for Menards made false statements in its appellee’s brief. Lane

also filed a motion for leave to file a reply to Menards’ response to his motion for sanctions. We have

considered these motions and found them to be without merit. Accordingly, we deny Lane’s motions by an

order issued contemporaneous with this opinion. Lane’s brief also makes reference to his counsel’s personal

experience as a law enforcement officer and an attorney. Such personal anecdotes are not part of the record

on appeal, and we, therefore, do not consider them in our analysis.

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 12 of 16

was detained, 9 there was probable cause to believe that Lane had committed

theft. The Shoplifting Detention Act, therefore, precludes Lane’s claims against

the Defendants.

[21] Specifically, it is uncontroverted that Lane entered the Menards store on July

20, 2022. He took a buck knife, which was in a yellow plastic and cardboard

package, from the shelf and placed it in his shopping basket. He then went to

the electrical department, where security cameras could not record his actions.

Lane claims—and for purposes of summary judgment, we take as true—that he

decided against purchasing the knife and placed it on a random shelf. When

Lane came back into view of the security cameras, the knife was no longer in

his shopping basket. 10 Soon thereafter, Salgado noticed that one of the buck

knives was missing from his recent inventory check. Salgado accessed the

store’s computer system, which revealed that no knife had been sold that day.

When he viewed security video, he confirmed that Lane was the only customer

who picked up a buck knife. Salgado searched the store but did not find the

9

We agree with Lane that facts learned or discovered after the fact of Lane’s detention cannot be considered.

See Decker v. State, 19 N.E.3d 368, 377 (Ind. Ct. App. 2014) (“Probable cause to arrest exists when, at the time

of the arrest, the officer has knowledge of facts and circumstances that would warrant a reasonable person to

believe that the suspect has committed the criminal act in question.”) (citing Clark v. State, 808 N.E.2d 1183,

1192 (Ind. 2004)).

10

Lane claims that the security video is not sufficiently clear to confirm whether the knife package was in his

shopping basket when he came back into view of the cameras. Lane, however, has failed to provide us with a

copy of the video on appeal. See Bank of Am., N.A. v. Cong.-Jones, 122 N.E.3d 859, 863 (Ind. Ct. App. 2019)

(“[I]t is an appellant’s duty to provide an adequate record for review.”) (citing Page v. Page, 849 N.E.2d 769,

771 (Ind. Ct. App. 2006)). Moreover, Salgado testified at his deposition that he could see the yellow knife

packaging in Lane’s basket before Lane went into the electrical department and that, when Lane came out of

that department, Salgado could no longer see the knife package.

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 13 of 16

knife or its package. A few days later, another employee found an empty

package in the electrical department. 11

[22] This evidence provided the Defendants with knowledge of facts and

circumstances that would warrant a reasonable person to believe that Lane

committed theft. We conclude that these facts are sufficient to establish as a

matter of law that the Defendants had probable cause to believe that Lane had

committed a theft on July 20, 2022. 12

V. Lane’s Detention was Reasonable

[23] The Act also provides that, for the merchant to be immune from suit under the

Act, the detention of the suspected shoplifter must be reasonable. See I.C. § 35-

33-6-2(c) (“The detention must . . . (1) be reasonable and last only for a

reasonable time; and (2) not extend beyond the arrival of a law enforcement

officer or two (2) hours, whichever first occurs.”). Lane argues that the actions

of the Defendants here were unreasonable. Again, we disagree.

11

Lane claims that the knife package was “unauthenticated,” and therefore should not be considered in

determining the propriety of summary judgment. Appellant’s Br. p. 23. Lane fails, however, to cite to any

authority supporting his argument. We would be within our discretion to consider this argument waived.

See Ind. Appellate Rule 46(A)(8)(a) (requiring that arguments presented on appeal to be supported by

“citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on[.]”

Moreover, Indiana Evidence Rule 901 provides in relevant part, “To satisfy the requirement of authenticating

or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that

the item is what the proponent claims it is.” Here, there was designated evidence that the knife packaging at

issue was found in the store. Lane’s claim that there is no proof that this is the same knife package he picked

up and later placed on a shelf does not negate the fact that the empty knife packaging was later found.

12

Lane argues that Salgado did not know at the time of the detention that Lane had purchased blades for his

utility knife. We too do not consider the fact that Lane purchased these blades.

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 14 of 16

[24] The evidence regarding Lane’s detention is uncontroverted. As detailed above,

when Lane returned to the Menards store seven days after the knife went

missing, Salgado approached Lane shortly after Lane entered the store and told

Lane that he needed to talk with Lane. Salgado took Lane to the security office

and confronted him about the knife. Salgado did briefly block the door with his

body and, at one point, placed his arm across the door. Salgado did not tell

Lane that he was free to leave. Lane denied taking the knife and provided

Salgado with his driver’s license, which Salgado photocopied. Salgado also

took a photo of Lane. The entire encounter in the security office took less than

fifteen minutes, and Salgado did not physically restrain Lane. Because of the

low monetary value of the knife, Salgado declined to call the police and

permitted Lane to continue shopping.

[25] Lane’s detention was very short and did not involve any physical restraint.

Given this designated evidence, Lane has failed to demonstrate a genuine issue

of material fact, and we conclude as a matter of law that Lane’s detention was

reasonable.

Conclusion

[26] The designated evidence reveals no genuine issue of material fact regarding

whether the Defendants had probable cause to believe Lane had committed

theft. To the contrary, the designated evidence shows that the Defendants did

have such probable cause. Similarly, the designated evidence shows that Lane’s

less-than-fifteen-minute detention was reasonable. Accordingly, we affirm the

trial court’s grant of summary judgment to the Defendants.

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 15 of 16

[27] Affirmed.

Crone, J., and Bradford, J., concur.

ATTORNEY FOR APPELLANT

Christopher Cooper

Law Office of Christopher Cooper, Inc.

Griffith, Indiana

ATTORNEYS FOR APPELLEES

James H. Milstone

Justin G. Wyss

Kopka Pinkus Dolin PC

Carmel, Indiana

Court of Appeals of Indiana | Opinion 23A-PL-2920 | July 26, 2024 Page 16 of 16