Lawyering Skills I at Liberty University School of Law afforded the opportunity to simulate a Legal Memorandum. This memo received an A!

1. THOMAS, JENKINS, WYER, & ASSOCIATES
Attorneys at Law
1971 University Boulevard Lynchburg, VA 24515
(434)-594-2954
TJWA@lawoffices.com
To: Professor Thomas
From: Michael Staib
Date: October 22, 2013
Re: Matter of Lynn Smith – False Imprisonment
File No. 525001.001
MEMORANDUM
QUESTION PRESENTED
1. Under VA. CODE ANN. § 18.2-105.1 did RNB Co. falsely imprison Lynn Smith when it
acts to involuntarily restrict her physical movement?
SHORT ANSWER
Yes; RNB Co. falsely imprisoned Smith. The incident occurred on RNB Co. property. Two
men in “RNB Co. Uniforms” grabbed Smith, and forced her into a “staked down” tent. They
demanded she stay there until their return. Smith “feared” the men might “grab her again” if she
attempted escape. Consequently, they left her there for more than an hour. When she exited the
tent, Smith met RNB Co. President Manfred, who refunded her for tolerating, “their little
prank.” His words suggest he at least supervised the detention with others executing it. Even if
RNB Co. suspected Smith shoplifted, which appears implausible, they still lacked legal
justification for the detention period to exceed an hour under VA. CODE ANN. § 18.2-105.1.
Thus, if Smith’s words prove true, the facts show false imprisonment.
STATEMENT OF FACTS
Upon information & belief, the facts allege as follows. At 7:00 P.M. on July 4, 2013,
Smith drove to RNB Co., a “tent-type” fireworks stand located in downtown Lynchburg,

2. Virginia and bought some fireworks. The incident occurred near Jefferson St. While there, two
massive men confronted Smith. One of them said, “We saw what you did. Come with us.” They
then accosted her. She “repeatedly questioned” their motive. Neither replied. The two men wore
“RNB Co. uniforms.” They each stood an estimated 6’4” to 6’6” and weighed almost 300
pounds. Smith, 5’6”, 125 pounds, could not escape their grip. Her “resistance” proved
insufficient to “break away from them.” They held on to her without relinquishing control. Smith
was “afraid.” Smith was “so afraid” she could not even yell for help. “Fear” as she maintained,
“intensified.” They escorted her to an estimated “eight feet by seven feet” tent, presumably,
“staked down on every corner.” The men demanded she “wait” there, until they returned. After
several minutes in the tent, she noticed her watch read 8:15 P.M. While there, she listened for
voices. Smith heard “muffled words” which she associated with her detainers. She “feared” the
two intimidating men might “grab her again,” if she attempted escape.
At approximately 9:15 P.M. Smith no longer heard any sounds and exited the tent. She
then met RNB Co. President Bart Manfred who offered her a complete refund for, “going along
with their little prank.” Smith, deeply distraught, abandoned her fireworks and the premises.
Yet, she kept the gift certificates Manfred provided. Smith called police. Police found no one at
the premises. She also contacted the Assistant Commonwealth’s Attorney, yet received no notice
of criminal charges. Mrs. Smith expressed “severe trauma.” She currently fears, “going out alone
after dark,” and staying, “alone in a room.” Smith also authorized disclosure of medical records
concerning her psychological counselling with Dr. Bradford back home, in Norlina, North
Carolina.
DISCUSSION
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3. The information provided most strongly supports false imprisonment. False
imprisonment requires (1) unwarranted physical restraint by (2) physical force or conduct that
compels reasonable apprehension of confinement, (3) and damages sufficient for recovery.
Samuel v. Rose’s Stores, Inc., 907 F. Supp. 159, (E.D.Va. 1995). This memorandum addresses
all three conditions.
The first condition for false imprisonment concerns unwarranted physical restraint. Under
Virginia Law, “any unlawful restraint of one’s liberty without any sufficient cause therefor,”
constitutes false imprisonment. Samuel, 907 F. Supp. at 161. In Samuel, a corporation permitted
its security guard to “handcuff” and “accost” the plaintiff for “approximately one hour” after
suspecting theft. Id. at 165. Samuel held that such a “detention” constitutes “physical restraint,”
for false imprisonment without requiring jail confinement or police custody. Id. at 165. (citing
Zayre of Va., Inc. v. Gowdy, 147 S.E.2d 710, 713 (Va. 1966); Kress v. Musgrove, 149 S.E. 453,
455 (Va. 1929)). The court reasoned that because a security guard lacks police authority to
“arrest” without any legally executed warrant, defendant, “illegally detained [plaintiff] without
lawful process.” Id. at 165 (quoting Montgomery Ward Co. v. Wickline, 188 Va. 485 (Va.
1948)). These facts prove legally significant because Samuel, a recent federal case similar to
Smith’s situation, reinforces several prior pertinent decisions concerning false imprisonment. Id.
at 165.
However, Smith’s situation presents an even stronger false imprisonment claim than
Samuel for several reasons. A corporation detained the plaintiff without any legally executed
warrant, analogously to RNB Co. toward Smith. Like Samuel, the two very large men allegedly
“accosted Smith.” Id. at 165. In upholding W.T. Grant Company v. Owens, Samuel also held
that, such “physical restraint” entails, “unlawful restraint upon freedom of locomotion.” Id. at
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4. 165; 141 S.E. 860, 865 (Va. 1928). The facts state that two men, each estimated at least 6’4” and
nearly 300 pounds, seized Smith. If true, Smith, “5’6”, 125 pounds”, doubtless lacked the
strength to extricate herself from their inescapable grasp. The asserted facts—that Smith
unsuccessfully attempted to “break free from their grip”—demonstrate, “restraint upon freedom
of locomotion without legal cause.” Thus, the facts strongly suggest unwarranted physical
restraint.
Additionally, in Samuel, the company suspected shoplifting. Not so concerning Smith.
Smith “repeatedly” questioned why the men detained her. Neither man replied. Neither their
appearance nor apparel, “wearing RNB Co. uniforms,” suggested police authority. Samuel
involves a “security guard” whereas the “two men in RNB Co. apparel,” represent employees as
suggested by Manfred who admitted “their prank.” Both Samuel and Smith’s scenario reveal
inadequate “probable cause” for detention. Id. at 165. Under VA. CODE ANN. § 18.2-105.1, a
corporation requires “probable cause of shoplifting,” before establishing legal justification for
detaining someone. “Probable cause” requires conduct, “justified by an ordinarily prudent person
acting as the merchant under similar circumstances.” F.B.C. Stores, Inc. v. Duncan, 198 S.E.2d
595, 599 (Va. 1973) (citing Code 1950, § 18.-1–127). For example, pursuant to VA. CODE
ANN. § 8.01-226.9, “activation of an electronic device” upon exit by the suspected shoplifter
may suffice as “probable cause.” Mere conjecture that “fails to arouse suspicions of a reasonable
person,” proves inadequate for probable cause. Montgomery Ward & Co. v Freeman, 199 F.2d
720 (4th Cir. 1952). Nonetheless, the facts for Lynn Smith shows even less than speculation.
Here, the facts offer no reason to infer RNB Co. even considered shoplifting because Manfred
refunded Smith for “their little prank.”
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5. Moreover, the “unlawful detention,” executed without probable cause in Samuel lasted,
“approximately one hour.” Smith’s detention exceeded an hour. The facts suggest detention
initiated after 7 P.M., because she just “began driving to RNB Co. at 7 P.M.” Smith noticed “her
watch displayed 8:15 P.M. several minutes after reaching the tent.” Since detention presumably
occurred preceding 8:15 P.M., before even reaching the tent, and continued up until when Smith
exited at 9:15 P.M., her detention transcended an hour. VA. CODE ANN. § 18.2-105.1 requires
that all lawful detentions not exceed one hour. Assuming RNB Co. caught Smith shoplifting, the
detention began before 8:15 P.M. and lasted until 9:15 P.M. Thus, the detention evidently
surpassed an hour in duration, and thereby violated VA. CODE ANN. § 18.2-105.1. Again, an
“illegal detention without lawful process,” constitutes false imprisonment. Therefore, the
detention overwhelmingly supports false imprisonment.
While none of the stated facts remotely suggest any shoplifting, insufficient evidence
exists to eliminate this legitimate possibility. Perhaps Smith mistook the time. Perhaps her
recollection of the time proves inaccurate. Perhaps she omitted information. Even if RNB Co.
lacked direct evidence, what if they possessed “probable cause” sufficient to suspect Smith
shoplifted on company premises? A question may even arise as to whether the detention even
occurred. Smith kept the gift certificates from Manfred. But Smith lacks evidence tracing these
gift certificates specifically to the stated incident. Alternatively, if Smith provides sufficient
evidentiary support to substantiate her claim, she presents a compelling case for false
imprisonment. “Assuming the allegations” presented prove “true” RNB Co., “physically
restrained” Smith. Samuel, 907 F. Supp. at 165.
Furthermore, assuming the “two men,” presumably wearing “RNB Co.” t-shirts” detained
her, insufficient evidence exists to prove these two men actually worked for RNB Co. Perhaps
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6. RNB Co. offered “RNB Co. t-shirts” for customers to purchase. To what extent the “two men
wearing RNB Co. t-shirts,” lacked any reasonable connection with RNB Co. constitutes a
plausible objection. Perhaps two men not even remotely connected with RNB Co. detained
Smith.
But again this argument most likely lacks merit because Manfred attempted to refund
Smith, “for going along with their alleged prank.” The word “their” not only suggests his own
admission, but that he, as President of RNB Co., supervised others in planning the “prank.” Id.
Hence, his admission reasonably suggests the “two men wearing RNB Co. t-shirts” participated
in the prank. Whether employed or not, the alleged detention presumably occurred on RNB Co.
property. A corporation remains “responsible” for “acts” conducted by “agents” or “employees”
within the purview of employment. W. T. Grant Co. v. Owens, 141 S.E. 860, 865 (Va. 1928);
Samuel, 907 F. Supp. at 165. Therefore, if the detention occurred on RNB Co. premises, and all
other events prove true, RNB Co. still remains responsible for false imprisonment. Consequently,
police failed to identify any parties. That police lack a trace of evidence raises serious questions.
Indeed, prosecutors reported no charges. Conversely, if all events prove true, the mysterious
disappearance of RNB Co. underscores guilt. The reaction strongly suggests RNB Co.
recognized “their little prank” as wrong, and in realizing they offended Smith, sought escape to
avoid a lawsuit.
The second element of false imprisonment requires words or acts that instill reasonable
apprehension sufficient to cause confinement. A “reasonable apprehension” of a “force” that
causes someone to “willingly submit” produces confinement sufficient for false imprisonment.
S.H. Kress & Co. v. Musgrove, 149 S.E. 453 (Va. 1929). S.H. Kress involves another similar
scenario where a corporation detained the plaintiff for suspected theft. Id. S.H. Kress held that,
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7. “Force” need not stem from acts alone, but “words” that “operate on the will of another.” S.H.
Kress, 149 S.E. at 458. The courts characterized, “reasonable apprehension of force,” as, “any
restraint by fear or force upon the action of another,” Id. at 458; W. T. Grant Co., 141 S.E. at
865; Samuel, 907 F. Supp. at 159. S.H. Kress reasoned that restraint by “words or acts,” for
which someone, “fears to disregard,” constitutes “reasonable apprehension,” because it
influences the volition of another. Id. at 458. Smith expressed several instances where she
became “so afraid” of her detainers, as to avoid escape. For example, she refrained from “yelling
help” upon delivery to the tent, “fearing” they might harm her. When Smith allegedly heard
“muffled voices” Smith resisted escape, “fearing” the men might hear her and subject further
harm if she escaped. These events, if true—unequivocally suggest both “words and acts,” which
she “feared to disregard”—thus confining her sufficient for false imprisonment. Id. at 458.
The third element of false imprisonment requires harm sufficient to obtain damages.
Samuel, 907 F. Supp. at 165. Samuel held that the mere showing of “illegal detention” suffices
for “compensatory damages.” Id. at 165 (quoting Wickline, 50 S.E.2d at 389). One may contend
that Lynn Smith’s demonstrate no physical harm sufficient to recover. But proving false
imprisonment requires a preponderance of evidence based on probabilities, not mere
possibilities. Zayre, 147 S.E.2d at 715. Likewise, only the jury reviews facts. Samuel observed
that, “mental pain and suffering,” satisfy compensatory damages for false imprisonment.
Compensatory damages provide restitution. F.B.C. Stores, 198 S.E.2d at 595. Samuel at 165
(1995). Samuel interpreted “mental suffering” to include, “loss of time” connected with, “bodily
or mental suffering.” Id. at 166 (quoting W.T. Grant Co., 141 S.E. at 866; S.H. Kress & Co., 149
S.E. at 455). The court reasoned that such “mental suffering” inflicts “emotional distress” as to
constitute physical injury recognized under VA.CODE ANN § 8.01-243 (A), sufficient for
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8. recovery. That Smith entered my office “sobbing,” and regularly consults Dr. Bradford for
psychological counselling suggests “mental pain/suffering” sufficient to receive compensatory
damages. But without establishing any foreseeable causal connection between the events &
Smith’s psychological decline, medical records prove pointless.
Neither “malice nor the slightest wrongful intention,” prove necessary in establishing
false imprisonment. Samuel, 907 F. Supp. at 166. The jury in F.B.C. Stores inferred that a lack of
probable cause for detention constitutes “legal malice.” 198 S.E.2d 595 (Va. 1973). “Legal
malice” inferred from the circumstances suffices to support compensatory damages. Id. at 599.
Thus, the facts support legal malice. Punitive damages designed to deter reprehensible conduct,
requires “actual malice”, which presumes more than a mere deviation from “reasonable”
standards. Id. at 599. A premeditated “prank” that detains another without warrant, perpetrated
strictly for thrills, perhaps supports “actual malice” sufficient for “punitive damages.” Id. at 599.
Lastly, the facts assert a harmful/offensive physical contact, accompanied by “fear” of further
contact. These details suggest assault & battery. Thus, Smith may combine her false
imprisonment claim into a “single declaration,” of “assault & battery” to receive, “entire
damages.” S.H. Kress, 149 S.E. at 453-54. This approach serves to increase damages received.
CONCLUSION
Smith presents a formidable claim for false imprisonment. Manfred awarded Smith for,
“going along with their little prank.” Manfred’s admission assumes intent. His refund also
presumes guilt. “[T]heir prank” presumes others involved, which strengthens the conclusion that
two men, “grabbed” Smith and stuck her in an anchored tent for more than one hour. Assuming
the two men, presumably connected with RNB Co., caught Smith shoplifting, they still lacked
legal justification to detain her for more than an hour. Likewise, even if they maintained no
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9. connection with RNB Co., an implausible inference, the detention still happened on company
property. Therefore, if all her assertions prove true, Smith establishes false imprisonment.
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10. connection with RNB Co., an implausible inference, the detention still happened on company
property. Therefore, if all her assertions prove true, Smith establishes false imprisonment.
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