{ "id": 9497972, "name": "AUBREY REDDING, JR., Plaintiff v. SHELTON'S HARLEY DAVIDSON, INC., and SHELTON DAVIS, Defendants", "name_abbreviation": "Redding v. Shelton's Harley Davidson, Inc.", "decision_date": "2000-08-29", "docket_number": "No. COA99-996", "first_page": "816", "last_page": "822", "citations": [ { "type": "official", "cite": "139 N.C. App. 816" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "101 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527942 ], "opinion_index": -1, "case_paths": [ "/nc-app/101/0529-01" ] }, { "cite": "133 L. Ed. 2d 169", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "516 U.S. 893", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 325057, 328452, 324549, 327430, 324717, 328655, 327673, 325041, 328529, 327195, 323769, 324925, 323037, 325854 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/516/0893-08", "/us/516/0893-04", "/us/516/0893-06", "/us/516/0893-11", "/us/516/0893-02", "/us/516/0893-03", "/us/516/0893-13", "/us/516/0893-09", "/us/516/0893-07", "/us/516/0893-14", "/us/516/0893-05", "/us/516/0893-01", "/us/516/0893-12", "/us/516/0893-10" ] }, { "cite": "455 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "144" } ], "opinion_index": 0 }, { "cite": "339 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557266 ], "pin_cites": [ { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0663-01" ] }, { "cite": "524 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 126845 ], "year": 1999, "pin_cites": [ { "page": "286", "parenthetical": "\"[affirmative defenses are those in which the defendant admits doing the act charged but seeks to justify, excuse, or mitigate his conduct\"" } ], "opinion_index": 0, "case_paths": [ "/ga-app/240/0589-01" ] }, { "cite": "204 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "180" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 326", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555853 ], "year": 1974, "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0326-01" ] }, { "cite": "383 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "383", "parenthetical": "self-defense and defense of family are affirmative defenses to assault upon which defendant has the burden of proof" }, { "page": "383", "parenthetical": "defense which results in avoidance of liability is affirmative defense" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 585", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522059 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "588", "parenthetical": "self-defense and defense of family are affirmative defenses to assault upon which defendant has the burden of proof" }, { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0585-01" ] }, { "cite": "106 S.E. 151", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1921, "pin_cites": [ { "page": "154", "parenthetical": "where defendant admits making the assault, burden is on him to prove justification for such conduct" } ], "opinion_index": 0 }, { "cite": "181 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655190 ], "year": 1921, "pin_cites": [ { "page": "64", "parenthetical": "where defendant admits making the assault, burden is on him to prove justification for such conduct" } ], "opinion_index": 0, "case_paths": [ "/nc/181/0059-01" ] }, { "cite": "192 S.E.2d 194", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564520, 8564493, 8564557, 8564467, 8564445 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0304-04", "/nc/282/0304-03", "/nc/282/0304-05", "/nc/282/0304-02", "/nc/282/0304-01" ] }, { "cite": "191 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "16 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548855 ], "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0088-01" ] }, { "cite": "276 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "330", "parenthetical": "\"[t]he interest protected by the action for battery is freedom from intentional and unpermitted contact with one's person\"" } ], "opinion_index": 0 }, { "cite": "302 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567370 ], "year": 1981, "pin_cites": [ { "page": "445", "parenthetical": "\"[t]he interest protected by the action for battery is freedom from intentional and unpermitted contact with one's person\"" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0437-01" ] }, { "cite": "418 S.E.2d 669", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497251, 2498471 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0558-01", "/nc/331/0558-02" ] }, { "cite": "414 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "357-58" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523809 ], "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0446-01" ] }, { "cite": "452 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "339 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558367 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/339/0338-01" ] }, { "cite": "428 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "460", "parenthetical": "court's decision based on intent and lack of consent" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 403", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525634 ], "year": 1993, "pin_cites": [ { "page": "415", "parenthetical": "court's decision based on intent and lack of consent" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0403-01" ] }, { "cite": "442 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "578" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527789 ], "year": 1994, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0524-01" ] }, { "cite": "417 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 743", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2502432 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0743-01" ] }, { "cite": "400 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1991, "pin_cites": [ { "page": "475" }, { "page": "474" }, { "page": "533" }, { "page": "475" }, { "page": "475" } ], "opinion_index": 0 }, { "cite": "321 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 763", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4680870, 4682260, 4683450, 4683066, 4685723 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0763-02", "/nc/311/0763-03", "/nc/311/0763-05", "/nc/311/0763-04", "/nc/311/0763-01" ] }, { "cite": "314 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "754" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526889 ], "pin_cites": [ { "page": "213-14" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0209-01" ] }, { "cite": "708 So.2d 106", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11837107 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "110", "parenthetical": "in state with nearly identical privilege statute, court held that where merchant uses only force minimally necessary to ensure detention of suspected shoplifter, statute protecting merchant against unlawful detention claim must also shield merchant from assault and battery claim" }, { "page": "110", "parenthetical": "when there is no evidence merchant \"used any more force than was necessary to ensure that [plaintiffs] were detained,\" merchant entitled to directed verdict on assault and battery claim" } ], "opinion_index": 0, "case_paths": [ "/so2d/708/0106-01" ] }, { "cite": "446 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1994, "pin_cites": [ { "page": "129" }, { "page": "129" }, { "page": "127" }, { "page": "127" }, { "page": "127, 128" }, { "page": "130", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 680", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12139054 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0680-01" ] }, { "cite": "101 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527942 ], "weight": 3, "pin_cites": [ { "page": "533" }, { "page": "532" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0529-01" ] } ], "analysis": { "cardinality": 753, "char_count": 15054, "ocr_confidence": 0.765, "pagerank": { "raw": 2.192628432078191e-07, "percentile": 0.7739891399073846 }, "sha256": "52020a8b06dee830edaffe200a35ab4c1a2b461454feb74210c36c7cad8997a1", "simhash": "1:400add32b5ab02d4", "word_count": 2461 }, "last_updated": "2023-07-14T19:40:43.899160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and TIMMONS-GOODSON concur." ], "parties": [ "AUBREY REDDING, JR., Plaintiff v. SHELTON\u2019S HARLEY DAVIDSON, INC., and SHELTON DAVIS, Defendants" ], "opinions": [ { "text": "SMITH, Judge.\nPlaintiff Aubrey Redding Jr. appeals from a jury trial resulting in a verdict and entry of judgment thereon in favor of defendants Shelton\u2019s Harley Davidson, Inc. (Shelton\u2019s Harley) and Shelton Davis (Davis). We order a new trial.\nOn 16 September 1997, plaintiff entered Shelton\u2019s Harley in Goldsboro, North Carolina. A store employee, suspecting plaintiff was stealing a vest, confronted plaintiff and then yelled out to other employees to call the police. Plaintiff tried to leave the store; however, John Martindale (Martindale), a store employee, blocked plaintiff\u2019s exit and, along with Davis, the store owner, attempted to detain him until the police arrived. Plaintiff alleges he was injured when \u201call three men fell onto the asphalt and concrete outside of the store.\u201d According to plaintiff, Davis and Martindale held plaintiff on the ground for \u201capproximately 15 minutes while waiting for the police to arrive.\u201d\nPlaintiff filed suit against defendants 11 February 1998, alleging a claim of assault and battery and seeking both compensatory and punitive damages. Defendants answered 9 April 1998, generally denying plaintiff\u2019s allegations and asserting in defense, inter alia, that Davis\u2019 actions against plaintiff were privileged.\nTrial began 17 March 1999. The jury returned a verdict absolving defendants of liability, and the trial court entered judgment in accordance with the verdict. Plaintiff subsequently filed motions for new trial and for judgment notwithstanding the verdict, which motions were denied by the trial court. Plaintiff timely appealed both the judgment and the orders denying his motions.\nPlaintiff first argues the trial court should not have \u201cinstructed the jury on the principle of the shopkeeper\u2019s privilege.\u201d Pursuant to N.C.G.S. \u00a7 14-72.1(c) (1999),\n[a] merchant, or the merchant\u2019s agent or employee, . . . 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 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\u2019s agent or employee,... had at the time of the detention or arrest probable cause to believe that the person committed the offense [of concealment of merchandise].\nPlaintiff argues that the privilege created by this statute is not a defense to assault and battery, citing Burwell v. Giant Genie Corp., 115 N.C. App. 680, 446 S.E.2d 126 (1994) as controlling authority.\nIn Burwell, this Court examined whether G.S. \u00a7 14-72.1(c) protected a police officer from liability for \u201cconducting a \u2018pat down\u2019 search of plaintiff before determining whether to arrest plaintiff.\u201d Id. at 685, 446 S.E.2d at 129. The plaintiff in that case filed suit against the officer alleging assault and battery. After noting that the statute specifically exempts merchants and police officers from liability for \u201cdetention, malicious prosecution, false imprisonment, [and] false arrest,\u201d G.S. \u00a7 14-72.1(c), we stated that\n[a]ctions for assault and battery are conspicuously omitted from the statute. We do not read G.S. [\u00a7] 14-72.1(c) as giving police officers or merchants the right to conduct \u201cpat down\u201d searches of customers without their consent.\nBurwell, 115 N.C. App. at 685, 446 S.E.2d at 129.\nThe facts recited in Burwell indicate that plaintiff therein, after paying for his groceries and while attempting to leave the store, was accused of stealing cigarettes by the store manager. Id. at 681-82, 446 S.E.2d at 127. The manager then \u201cgrabbed plaintiff\u2019s arm and pulled plaintiff about two aisles down toward the store office.\u201d Id. at 682, 446 S.E.2d at 127. An off-duty police officer approached plaintiff, showed plaintiff his badge, and, along with the store manager, conducted a \u201cpat down\u201d search of plaintiff. Id. at 682, 684, 446 S.E.2d at 127, 128.\nIn Burwell, the plaintiff\u2019s assault and battery claim was predicated upon the \u201cpat down\u201d search, which was a separate act from the detention of the plaintiff. As the Burwell Court noted, the assault and battery occurred \u201cduring [plaintiffs] detention.\u201d Id. at 686, 446 S.E.2d at 130 (emphasis added). The search was not conducted in order to detain plaintiff, but was instead conducted while plaintiff was detained. As the search was an assault and battery not necessary to plaintiff\u2019s detention, defendants were not entitled to the protection of G.S. \u00a7 14-72.1(c).\nIn the instant case, however, the alleged assault and battery cannot be separated from plaintiffs detention. The plaintiff in the case at bar attempted to leave the store once accused of shoplifting, and was detained by force by Davis and Martindale. The force used to detain plaintiff resulted in the three men falling to the ground, at which point plaintiff was injured. Thus, the alleged assault and battery in this case is the detention. See Kmart Corp. v. Perdue, 708 So.2d 106, 110 (Ala. 1997) (in state with nearly identical privilege statute, court held that where merchant uses only force minimally necessary to ensure detention of suspected shoplifter, statute protecting merchant against unlawful detention claim must also shield merchant from assault and battery claim). The two torts were not separate acts and must be treated as a whole.\nG.S. \u00a7 14-72.1(c) protects merchants from civil actions for detention if its terms are complied with. The issues presented by this case are thus (1) whether defendants had probable cause to believe plaintiff had concealed merchandise and (2) whether the detention was \u201cin a reasonable manner for a reasonable length of time.\u201d G.S. \u00a7 14-72.1(c). If probable cause was lacking or the detention was not reasonable, G.S. \u00a7 14-72.1(c) would not apply and defendants would be liable for assault and battery. Cf. Kmart, 708 So.2d at 110 (when there is no evidence merchant \u201cused any more force than was necessary to ensure that [plaintiffs] were detained,\u201d merchant entitled to directed verdict on assault and battery claim); State v. Ataei-Kachuei, 68 N.C. App. 209, 213-14, 314 S.E.2d 761, 754 (indicating that firing three shots at victim, one of which hit and killed victim, could be reasonable manner of detaining victim), disc. review denied, 311 N.C. 763, 321 S.E.2d 146 (1984).\nIn sum, the trial court correctly instructed the jury on the applicability of G.S. \u00a7 14-72.1(c). We thus overrule this assignment of error.\nPlaintiff next alleges the trial court incorrectly placed the burden of proof on him to show that defendants failed to act in a reasonable manner to detain plaintiff. Plaintiff argues the privilege created under G.S. \u00a7 14-72.1(c) should be regarded as an affirmative defense upon which defendants have the burden of proof. We agree.\nPlaintiff objects to the following instruction given by the trial court:\nThe first question is issue number one, did the defendants fail to act in a reasonable manner to detain the plaintiff at their store on September 16, 1997. The plaintiff has the burden of proof to prove to you that defendants did fail to act in a reasonable manner in detaining him. If he\u2019s satisfied you by the greater weight of the evidence that the defendant did fail to so act in a reasonable manner, then you would answer that issue yes ....\nDefendants argue the instruction was correct as given, in that this Court has stated that \u201clack of privilege\u201d is one of the elements of battery, see Hawkins v. Hawkins, 101 N.C. App. 529, 533, 400 S.E.2d 472, 475 (1991), aff'd, 331 N.C. 743, 417 S.E.2d 447 (1992), that plaintiff must prove in order to prevail.\nThe issue before this Court in Hawkins was \u201cwhether the lack of an award of at least nominal damages precludes an award of punitive damages\u201d in a case based on claims of assault and battery. Hawkins, 101 N.C. App. at 532, 400 S.E.2d at 474. In the course of discussing the punitive damages issue, we noted that\n[t]he elements of battery are intent, harmful or offensive contact, causation, and lack of privilege.\nId. at 533, 400 S.E.2d at 475, citing 1 W. Haynes, North Carolina Tort Law \u00a7 4-2 (1989) (hereinafter Haynes) for that proposition. We first note that Hawkins merely listed the \u201celements\u201d without discussing which party had the burden of proof as to each.\nIn addition, neither party to that case disputed that plaintiff therein had established his claim for battery; the sole issue before the court was whether punitive damages were allowable. See Hawkins, 101 N.C. App. at 533, 400 S.E.2d at 475. Thus, the portion of our opinion setting forth the elements of battery \u201cwas unnecessary to the court\u2019s holding and therefore dictum.\u201d Donovan v. Fiumara, 114 N.C. App. 524, 533, 442 S.E.2d 572, 578 (1994). Cases that have since cited Hawkins\u2019 formulation of the elements of battery as including \u201clack of privilege\u201d have also done so in dictum. See Holloway v. Wachovia Bank and Tr. Co., 109 N.C. App. 403, 415, 428 S.E.2d 453, 460 (1993) (court\u2019s decision based on intent and lack of consent), rev\u2019d in part, aff'd in part, 339 N.C. 338, 452 S.E.2d 233 (1994); Wilson v. Bellamy, 105 N.C. App. 446, 465, 414 S.E.2d 347, 357-58 (issue was whether plaintiff consented to contact), disc. review denied, 331 N.C. 558, 418 S.E.2d 669 (1992).\nFurther, the treatise relied on by Hawkins for the proposition that \u201clack of privilege\u201d is an element of battery also notes that \u201cprivilege\u201d is a defense to battery, see Haynes at \u00a7 4-3, and that \u201cthe essential elements of the tort [are] intent, a harmful or offensive touching, and causation,\u201d id. at \u00a7 4-6 (emphasis added). This formulation of the \u201cessential elements\u201d of battery is consistent with prior caselaw, see Dickens v. Puryear, 302 N.C. 437, 445, 276 S.E.2d 325, 330 (1981) (\u201c[t]he interest protected by the action for battery is freedom from intentional and unpermitted contact with one\u2019s person\u201d); Ormond v. Crampton, 16 N.C. App. 88, 94, 191 S.E.2d 405, 410 (\u201c[a] battery is made out when the person of the plaintiff is offensively touched against his will\u201d), cert. denied, 282 N.C. 304, 192 S.E.2d 194 (1972), and traditional formulations of the elements of battery, see 6 Am. Jur. 2d Assault & Battery \u00a7 3 (1999) (\u201c[a] battery is a wrongful or offensive physical contact with another through the intentional contact by the tortfeasor and without the consent of the victim\u201d).\nFinally, Haynes notes that\n[a]fter the plaintiff has introduced sufficient evidence to support his cause of action for battery, the burden of proof shifts to the defendant to put forth such defenses as are possible in mitigation or justification. For example, the defendant could set forth the defenses of provocation, privilege, [and] self-defense ....\nHaynes at \u00a7 4-7. Our courts have consistently placed the burden of proof on defendants to prove an affirmative defense exists to a plaintiffs claim of assault and battery. See Roberson v. Stokes, 181 N.C. 59, 64, 106 S.E. 151, 154 (1921) (where defendant admits making the assault, burden is on him to prove justification for such conduct); Young v. Warren, 95 N.C. App. 585, 588, 383 S.E.2d 381, 383 (1989) (self-defense and defense of family are affirmative defenses to assault upon which defendant has the burden of proof); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts \u00a7 16 (5th ed. 1984) (it would be \u201cmanifestly unsound and impractical to require a plaintiff to negative at the outset all possible excuses or justifications\u201d; thus, defendant must \u201cplead and prove\u201d such justifications); 6 Am. Jur. 2d Assault & Battery \u00a7 165 (1999) (defendant has burden of proving justification).\n\u201c[0]n an affirmative defense, the burden of proof lies with the defendant.\u201d Price v. Conley, 21 N.C. App. 326, 328, 204 S.E.2d 178, 180 (1974). The privilege created by G.S. \u00a7 14-72.1(c) is an affirmative defense, as it \u201crais[es] new facts and arguments that, if true, will defeat the plaintiff\u2019s . . . claim, even if all allegations in the complaint are true.\u201d Black\u2019s Law Dictionary 430 (7th ed. 1999); compare Young, 95 N.C. App. at 588, 383 S.E.2d at 383 (defense which results in avoidance of liability is affirmative defense), and Carlson v. State, 524 S.E.2d 283, 286 (Ga. Ct. App. 1999) (\u201c[affirmative defenses are those in which the defendant admits doing the act charged but seeks to justify, excuse, or mitigate his conduct\u201d), with State v. Miller, 339 N.C. 663, 676, 455 S.E.2d 137, 144 (evidence regarding defendant\u2019s mental state at time of crime, which may rebut State\u2019s proof of premeditation and deliberation, is not affirmative defense for which defendant bears burden of proof), cert. denied, Miller v. North Carolina, 516 U.S. 893, 133 L. Ed. 2d 169 (1995).\nThe trial court therefore erred in instructing the jury that plaintiff had the burden of proof to establish that defendants failed to act in a reasonable manner in detaining plaintiff, as reasonableness is an element of the affirmative defense provided by G.S. \u00a7 14-72.1(c). We thus vacate the judgment of the trial court and remand this case for a new trial. In light of our disposition herein, we decline to address plaintiff\u2019s remaining assignments of error.\nNew trial.\nJudges WALKER and TIMMONS-GOODSON concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Mast, Schulz, Mast, Mills & Stem, P.A., by David F. Mills, for plaintiff-appellant.", "Smith, Helms, Mulliss & Moore, L.L.P., by Matthew W. Sawchak, Clayton D. Somers, and Wendy I. Sexton, for defendants-appellees." ], "corrections": "", "head_matter": "AUBREY REDDING, JR., Plaintiff v. SHELTON\u2019S HARLEY DAVIDSON, INC., and SHELTON DAVIS, Defendants\nNo. COA99-996\n(Filed 29 August 2000)\n1. Assault\u2014 civil \u2014 shopkeeper\u2019s privilege \u2014 instruction\nThe trial court correctly instructed the jury on the applicability of N.C.G.S. \u00a7 14-72.1(c), the \u201cshopkeeper\u2019s privilege,\u201d in an action for civil assault resulting from plaintiff\u2019s attempt to leave a store after being accused of shoplifting and the detention of plaintiff by force until the police arrived. Although plaintiff contended that the privilege created by the statute is not a defense to assault and battery, the alleged assault and battery in this case cannot be separated from the detention and the two torts must be treated as a whole.\n2. Assault\u2014 civil \u2014 detention of shoplifter \u2014 shopkeeper\u2019s privilege \u2014 burden of proof\nIn a civil assault action arising from the detention by force of a suspected shoplifter, the trial court erred by instructing the jury that plaintiff had the burden of proving that defendants failed to act in a reasonable manner. Reasonableness is an element of the affirmative defense provided by N.C.G.S. \u00a7 14-72.1(c) and the courts have consistently placed on defendants the burden of proving that an affirmative defense exists to a claim of assault and battery. The portion of Hawkins v. Hawkins, 101 N.C. App. 529, relied upon by defendants is dictum.\nAppeal by plaintiff from judgment entered 26 April 1999 and orders entered 13 May 1999 by Judge Donald W. Stephens in Johnston County Superior Court. Heard in the Court of Appeals 18 May 2000.\nMast, Schulz, Mast, Mills & Stem, P.A., by David F. Mills, for plaintiff-appellant.\nSmith, Helms, Mulliss & Moore, L.L.P., by Matthew W. Sawchak, Clayton D. Somers, and Wendy I. Sexton, for defendants-appellees." }, "file_name": "0816-01", "first_page_order": 848, "last_page_order": 854 }