Since When Is Shopping a Crime?

Laurie Cunningham
Miami Daily Business Review
04-14-2004


A jury in Fort Lauderdale, Fla., has awarded approximately $525,000 to a die-hard coupon clipper who was arrested and then acquitted of charges that she falsely obtained steep discounts on household items and Barbie dolls at a J.C. Penney store.

In an unusual case of malicious prosecution, a jury awarded the money to Melanie Pianelli of Coral Springs, Fla., finding that she was the victim of an overzealous loss protection manager.

Lawsuits such as those brought by Pianelli are usually filed after further investigation reveals the shopper's arrest was a misunderstanding or a mistake. The shopper who was detained then sues the store for the humiliation and anxiety of being taken to jail.

What's unusual about Pianelli's case is the size of the award. Usually malicious prosecution cases against retail stores are settled for $10,000 to $25,000, said Andrew Hall, a longtime Miami litigator who was not involved in the case.

"The fact that a jury awarded her $500,000 shows that J.C. Penney put this woman through a great deal," Hall said.

Pianelli, 27 at the time of her June 2000 arrest by Coral Springs police, was accused of stealing more than $4,000 from the J.C. Penney in the Coral Square Mall. According to the J.C. Penney loss prevention manager, Pianelli conspired with one of the store cashiers to obtain illegal discounts on merchandise from January to February 2000.

The manager, Patrick Borden, claimed that the cashier, Leticia Walsh, was improperly waiving shipping and handling fees for items Pianelli had bought from the store catalog and giving her the store sales price when it was lower than those listed in the catalog.

Walsh, who also sued the retail chain, settled her claim for an undisclosed amount a month before the civil case went to trial.

Borden started investigating Pianelli after he noticed that more than 50 credits had been made to her J.C. Penney account within a single month. As a result, Pianelli was able to acquire household items and dolls for her daughters at up to 90 percent off the original price. Through conscientious coupon clipping, Pianelli was legitimately buying $60 Barbie dolls for $6.99, said one of her civil attorneys, Mark D. Feinstein, a partner at Feinstein & Sorota in North Miami Beach. Feinstein's co-counsel was Matthew E. Haynes, a partner with Chamblee Johnson & Haynes in West Palm Beach.

Pianelli, whose husband is a traffic officer with the Broward sheriff's office, claimed she had done nothing wrong. An admitted compulsive shopper who inherited her mother's frugality, Pianelli claimed that all her discounts were legal.

For example, Pianelli knew that J.C. Penney had a policy that by buying a store catalog for $5, she could receive $10 off her purchase using a code on the back of the catalog. If she wanted to buy $300 in merchandise, Pianelli would buy 15 catalogs. Then she'd split her $300 order into 15 separate orders so she could get the $10 discount on each one. That way, she saved $150 (minus the $5 she paid for each catalog) using coupons in 15 different orders rather than $10 on just one.

"You could learn a lot from this lady," Feinstein said. "She's very proud of how much she saves."

J.C. Penney's trial counsel, Rhea Grossman of Fort Lauderdale, declined to discuss the case or the prospects for an appeal. A public relations officer at J.C. Penney headquarters in Plano, Texas, said he was unfamiliar with the case and declined comment.

In January 2001, a criminal jury in state court in Broward County acquitted Pianelli and Walsh, the store cashier, of grand theft and conspiracy to commit theft. The two women could have faced prison terms of up to 20 years if convicted.

By the time of the criminal trial, the emotional strain on Pianelli had begun to take its toll, Feinstein said. It was about this time she was diagnosed with post-traumatic stress disorder. She lost 50 pounds and developed alopecia -- hair loss induced by stress.

Following her acquittal, Pianelli filed suit against J.C. Penney and Borden in Broward Circuit Court, alleging malicious prosecution and negligent supervision. The case was tried March 15-19 before Circuit Judge Richard Eade.

At trial, Feinstein claimed that Borden's investigation was woefully inadequate. The only person he interviewed about his suspicions was Walsh, who promptly quit and refused to answer most of his questions. The only surveillance he did produce was a three-hour videotape that showed nothing more than Pianelli presenting coupons to the cashier, Feinstein said.

Borden never questioned Pianelli or any of the other cashiers who had signed off on Pianelli's receipts before calling the Coral Springs police, who turned the case over to the Broward state attorney's office without conducting further investigation, Feinstein said.

Borden, the only state witness at the criminal trial, didn't tell police that Pianelli had received authorization of similar discounts by nine other cashiers during the time she was accused of fraud, Feinstein said.

He also failed to investigate the fact that J.C. Penney had written policies authorizing its cashiers to give customers the lower price if the store sales price was less than the one listed in the catalog. There's no prohibition against customers buying more than one catalog for the $10 coupons, Feinstein said. Every time one of the cashiers waived the shipping and handling costs, there was a store promotion to back it up, he added. "Still, J.C. Penney refused to acknowledge that their investigation was bad," Feinstein said.

During the civil trial, J.C. Penney counsel claimed that Pianelli's psychological condition was unrelated to the criminal charges and dated back to mental problems she experienced before she was arrested.

But the jury deliberated for just 30 minutes before awarding Pianelli $525,045. The judgment includes money for mental anguish, past and future medical expenses for psychological counseling and the legal expenses she accrued hiring a private attorney to defend her in the criminal trial.

Although the jury award is comforting, Pianelli still lives in fear of being arrested every time she uses a coupon, Feinstein said.

"Whenever an alarm goes off in a department store, she's still going to jump."
posted by Las Vegas at 8:33 AM

FACT SHEET: MCDONALD'S SCALDING COFFEE CASE

Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson's car when she was severely burned by McDonald's coffee in February 1992. Liebeck ordered coffee that was served in a Styrofoam cup at the drive-through window of a local McDonald's.

Related Article:
# ATLA Past President Howard Twigg’s June 1997 ‘President’s Page’ on the McDonald’s Case


After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. (Critics of civil justice, who have pounced on this case, often charge that Liebeck was driving the car or that the vehicle was in motion when she spilled the coffee; neither is true.) Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap.

The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonald's refused.

During discovery, McDonald's produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebeck's. This history documented McDonald's knowledge about the extent and nature of this hazard.

McDonald's also said during discovery that, based on a consultant's advice, it held its coffee at between 180 and 190 degrees Fahrenheit to maintain optimum taste. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

Further, McDonald's quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonald's coffee, at the temperature at which it was poured into Styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonald's had no intention of reducing the "holding temperature" of its coffee.

Plaintiff's expert, a scholar in thermodynamics as applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck's spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.

McDonald's asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the company's own research showed that customers intend to consume the coffee immediately while driving.

McDonald's also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third-degree burns from the coffee and that a statement on the side of the cup was not a "warning" but a "reminder" since the location of the writing would not warn customers of the hazard.

The Wall Street Journal wrote (September 1, 1994), "The testimony of Mr. [Christopher] Appleton, the McDonald's executive, didn't help the company, jurors said later. He testified that McDonald's knew its coffee sometimes caused serious burns, but hadn't consulted burn experts about it. He also testified that McDonald's had decided not to warn customers about the possibility of severe burns, even though most people wouldn't think it possible. Finally, he testified that McDonald's didn't intend to change any of its coffee policies or procedures, saying, 'There are more serious dangers in restaurants.' "

The Journal quoted one juror, Jack Elliott, remarking after the trial that the case had been about such "callous disregard for the safety of the people."

The Journal story continued, "Next for the defense came P. Robert Knaff, a human-factors engineer who earned $15,000 in fees from the case and who, several jurors said
later, didn't help McDonald's either. Dr. Knaff told the jury that hot-coffee burns were statistically insignificant when compared to the billion cups of coffee McDonald's sells annually. To jurors, Dr. Knaff seemed to be saying that the graphic photos they had seen of Mrs. Liebeck's burns didn't matter because they were rare. 'There was a person behind every number and I don't think the corporation was attaching enough importance to that,' says juror Betty Farnham."

At the beginning of the trial, jury foreman Jerry Goens told the Journal, he "wasn't convinced as to why I needed to be there to settle a coffee spill."

By the end of the trial, Betty Farnham told the Journal, "The facts were so overwhelmingly against the company. They were not taking care of their customers."

The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonald's coffee sales.

Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonald's had dropped to 158 degrees Fahrenheit.

The trial court subsequently reduced the punitive award to $480,000 -- or three times compensatory damages -- even though the judge called McDonald's conduct reckless, callous and willful. Subsequent to remittitur, the parties entered a post-verdict settlement.
posted by Las Vegas at 11:50 PM

Handicapped kids can’t catch the bus

By Brandy Centolanza
The Virginia Gazette

April 3 2004

WILLIAMSBURG -- A well-intentioned attempt to preserve the private road in a neighborhood has left two handicapped children struggling to catch the bus.

For two years, homeowners of Shellis Square condominiums on Merrimac Trail have refused to permit WJC school buses to travel the loop, claiming the heavy buses damage roads and sidewalks. Yet trucks are okay.

As a result, Kelley Campbell and Tomeka Cox have to trek through the neighborhood with their disabled children so the kids can board the school bus as it drives along Merrimac Trail. Both girls attend the NEED Center at Norge Elementary.

Campbell's 5-year-old daughter, Brittany, has spina bifida, a condition that results from the failure of the spine to close properly during the first month of pregnancy. She is only able to walk with the aid of a walker or crutches and sometimes is confined to a wheelchair.

“It's a struggle,” Kelley Campbell said of the trek to the bus. “Because it takes longer for Brittany to get on the bus, sympathetic neighbors and drivers on Merrimac Trail have taken it upon themselves to break the law and go around the bus, even though the safety signals are flashing and the stop sign is sticking out.”

Cox faces a similar problem. Her 4-year-old daughter, Tamia, has been diagnosed with Type 1 Lissencephaly, a brain disorder that affects motor and cognitive skills. Tamia can neither walk nor talk, so her mother must carry her to the bus stop all the way from the back of the complex.

The distances are several hundred yards, which is significant for handicapped kids.

“We are expected to go to the front entrance in rain, snow, sleet, hail -- everything,” Cox said. “My daughter is prone to pneumonia, so I often have to keep her home from school when the is bad weather.”

Both women rent their homes in Shellis Square. Campbell has lived there for at least a decade, while Cox moved in last November.

Earlier this month, Cox pleaded with the homeowners association board to at least allow the smaller buses in that are exclusively for handicapped students. She didn't succeed.

“I asked them point-blank what the reason was that the school buses couldn't come into the complex,” Cox said. “They told me that they mess up the speed bumps, and mess up the pavement. I asked them what was more important, the pavement or the children. I was told that it cost a lot of money to repair the roadways.”

Cox pointed out a hole in the argument, noting that garbage trucks, package delivery trucks and moving company tractor-trailers are common in the neighborhood.

“They told me that was because the whole community benefits from those services,” Cox said.

At one point, WJC transportation director Randy Pingley tried to intervene.

“I used the same argument, but it didn't work,” Pingley said. “I don't know why they are against school buses but not other, heavier vehicles.”

Pingley approached city officials for help, but was told that nothing could be done since the roads are on private property.

“This is definitely not something that we chose to do,” Pingley said, referring to WJC Schools.

Other neighbors are perplexed by the rule, since they think it's unsafe for any child to stand out front on the heavily traveled main road.

“Merrimac Trail is a main thoroughfare,” noted Nancy Shelton. “It's dangerous for children to be waiting out there for a bus. It's unfair.”

Brenda Wigginton, a former Shellis Square board member whose husband now serves as the association's president, tells a different story. She said the association once considered allowing just the handicapped buses in. She claims school officials “didn't want any buses coming in, because there was nowhere for the buses to go because the parking lot was too crowded with cars.”

“They made the final decision, not Shellis Square,” Wigginton stated.

“That is not true,” Pingley shot back when told of Wigginton's claim. “This is very upsetting to me.”

Pingley said he pleaded with Wigginton to at least let the drivers finish out the school year, but Wigginton refused. Buses ceased entering the neighborhood in March 2002.

“There is no way that I would not provide a service to a special-needs child,” Pingley insisted. “If I could go door-to-door to pick up the kids, that's what I would do.”

As for the other vehicles, they can enter the complex because “we have to let people move in and out, and we have to let the UPS trucks in because it's the mail,” Wigginton said. “We let the recycling truck come in, but that is just once a week.”

She said school buses used to “come in and out of here all day long. They would come in here at least six times a day. You could tell they were destroying the pavement. It was definitely deteriorating.”

Contradicting her earlier statement, Wigginton then said the decision was made not to let the buses in because the association didn't want to increase annual dues to cover the cost of repairing the roads.

“This is purely financial,” Wigginton said. “We are looking out for the homeowner. Everything in here is maintained by the residents. We don't have the city or VDOT coming in and helping us. This is private property. We don't have to allow the school buses in.”

Campbell is not giving up.

“I have been fighting this for two years, and I will continue to fight this,” she said.

“When you have a handicapped child, usually people are willing to go out of their way to help you the best way they can,” Cox added. “It's heartbreaking and disappointing for our children to have to suffer because of the homeowners association's unwillingness to compromise.”


Copyright © 2004, Virginia Gazette
posted by Las Vegas at 9:12 AM