RICHMOND, Va. (Legal Newsline) – A 70-year-old woman can pursue her malicious prosecution claims against a Virginia Kroger after staff there incorrectly reported her to authorities as a shoplifter.
Shirley Dill avoided a criminal trial when prosecutors looked at the surveillance footage of an incident involving strawberries. “You would have to be blind to think that that was Shirley Dill,” her lawyer told a Commonwealth attorney on the day of trial.
Her 2018 civil lawsuit against Kroger suggested employees had an axe to grind with her, but a Staunton trial court threw it out entirely. A July 8 opinion written by Virginia Supreme Court Justice Bernard Goodwin reinstates the malicious prosecution claim.
“In the present case, Dill presented sufficient evidence to raise a jury question as to whether there was probable cause to believe that the shoplifter was Dill, and it was the jury’s role to determine if malice could be inferred from the evidence presented,” Goodwin wrote.
In 2017, Kroger manager Sarah Lynch saw a shopper put strawberries that weren’t scanned into her bag. She believed the shopper to be named Shirley Dill even though the Kroger card used for the purchase was registered to Susan Rosenmeier.
Lynch suggested Dill must have borrowed the card, because she knew the woman to be Dill. Video recordings of the same shopper showed her stealing $40 worth of items.
Staunton Police Investigator Stewart Green was told Shirley Dill was shoplifting and he obtained two arrest warrants. Dill protested her innocence but she eventually had to hire an attorney and endure months of pending charges.
Rosenmeier was caught shoplifting in June 2017, using the Plus Card registered to her. It turned out Lynch thought Rosenmeier’s name was Shirley Dill because another customer called her that.
Complicating the matter was the fact Lynch had overseen two previous interactions with the real Shirley Dill – one for an injury in the parking lot that Lynch was suspicious of and another for an unfounded claim by a Dr Pepper sales agent that Dill stole his jacket – yet still maintained she thought Rosenmeier was Dill.
Green, the investigator, took Kroger’s word on the identity of the shoplifter, despite the surveillance footage showing otherwise.
“(T)here is evidence which supports a finding of malice because Kroger and Lynch reported Dill, by name, to the police as the perpetrator of two crimes, despite video evidence that the crime was perpetrated by someone else who bore no physical resemblance to Dill, and who used her own Kroger Plus Card while perpetrating the crimes,” Goodwin wrote.
“The Plus Card used in the transactions was registered to Rosenmeier; inexplicably neither Lynch nor Harrison investigated their conjecture that Dill was the user of the card and that she was somehow related to Rosenmeier and that Dill used Rosenmeier’s Plus Card. Dill provided evidence that Lynch had previously encountered Dill and had a history of heightened suspicion against Dill, as illustrated in the incident report prepared by Lynch when Dill complained of an injury sustained in the Kroger parking lot.
“Lynch had also been tasked with investigating another reported incident concerning Dill in the Kroger store. Although Lynch’s professed motive for sending Harrison an e-mail, which requested further investigation of Dill as the thief, after the incident involving the strawberries, could have been solely to ‘suppress crime,’ inferences to the contrary may be drawn from the evidence when viewed in the light most favorable to Dill.”