Booooo. Are there any other companies with a policy like HD's?

Well, this is awesome news for thieves.

On my way to Home Depot right now to take my share of all the free shit they are aparently just giving away!

I would feel bad for this guy but I'm sure another store near him that needs a good PR boost will hire him and pay him more shortly.

BTW this story is on the frontpage twice right now.

Most companies have policies like this where only the LP personnel (or security guards) can touch thieves. You can call a guard/LP person and follow the thief around though.

@flintstone03: HA! You beat me to it. I'll tell you what...you go left and I'll go right...that way they can send nobody to catch us in both directions.

This is an interesting contrast from the intellectual property cartels who violate their own customers' rights a little more each day to allegedly combat theft. Home Depot is rolling out the red carpet for it's potential thieves - and they probably aren't even buying anything!

@flintstone03: Make sure you stop at China-Mart on your way (up to $25 free to every customer)

MEMO TO DUSTIN (a.k.a. HICK-IN-TRAINING):

If some ignorant red-neck with a crowbar really needs a drink that bad, let him have it. Vending machines can be replaced. Human life and limb, not so much.

A friend of mine had her purse stolen while she was shopping at HD and had a hell of a time trying to get any of the HD employees to help her. They refused to call the police or allow her to use their phone to contact her credit card companies. (A sympathetic customer let her borrow a cell phone.) Once the police arrived HD even refused to give them access to the security cameras! Guess who shops at Lowe's now?

Hah, and they wonder why so much stuff disappears?

No way I'm showing my receipt at Home Depot, such as I am a US American of the United States.

Good avice for shopping at HD next time. I'll take it into consideration. Why pay when you can steal and not face justice system?

This really should be titled "Home Depot Fires another Employee for DETAINING a Thief".

It's not about letting theives walk a way with stuff, it's about not physically confronting them.

This is also in sharp contrast to the recent article about the individual that was "detained" by an employee at TigerDirect when he refused to show a receipt. So which is it -- should employees detain suspected thieves or not?

OfficeMax has this same exact policy. (I worked there for 2 years in high school)

If someone hasn't said it, that thief could have tripped and fallen while being chased and could have sued home depot for $$$. Technically even a LP employee shouldn't touch the shoplifter even though they usually do and most shop lifters don't do anything about it. Sucks for that guy though, seemed like he just wanted to do the right thing.

That sucks for that guy, he shouldn't have lost his job. Hard to say how one would react in a situation like that, but the company I work for has a similar policy of not getting physically involved if you see a crime. They tell you to call your supervisor and security but to not "be a hero". It probably has to do with liability. What would happen if the guy gets beaten with the crowbar by the thief? Would HD be responsible for his medical bills? What if the employee gets hurt and then turns around and sues HD for not having proper security?

He would have got away with it too...

If it wasn't for that darn kid and his talking dog.

kp

doh! what happened to the other post with all the comments?

I understand the policy. I walked in to a 7-11 in Dallas a few weeks as four men were just wrapping up stealing about 200 packs of smokes. The 7-11 employees were just standing there and then called the cops. They pretty much said that it's not worth getting killed over $400 worth of smokes.

If HD says that employees aren't to stop people from stealing that's their prerogative. But, firing them seems a bit extreme.

I wonder what the policy is on yelling "Stop! Thief!"

I'll be willing to wager another customer in some stores would haul him to the ground for you, absolving you of your responsibility, then you can mock him from the sidelines or do paperwork while the customers keep him on the floor...

If anything, Home Depot should offer the thief a job for the inconvenience that bastard ex-employee caused.

@bedofnails: WTF does this have to do with the post? Why would not being an American mean that they CAN check your receipt.

I work in retail selling clothing and our policy is to not directly confront thieves. If we suspect someone, we're supposed to stick to her like glue under the guise of excellent customer service until the person hopefully drops the goods and leaves. In part, the company doesn't want to get sued by someone if we falsely accuse her. It's also a safety issue since a confronted thief could turn violent.
I feel bad for this guy for getting fired, but common sense should have told him you don't confront someone with a crowbar. Besides, if he's worked in retail for seven years, he should know that shrink is expected and factored into the company's costs.

@CamilleR: If you've worked in retail at all, you'd know that retailers like to minimize "shrink". On the other hand, if you've watched Seinfeld at all, you'd know that the episode about "significant shrinkage" is really funny.

Most stores have similar policies but loads of employees have no idea about them.

Here is a bit of what Target has to say about Employee Theft, from their Target AP Directives 2006, the entire text can be found at:

[targetfiling.blogspot.com]

=================================

C. Five Steps for Apprehension
Certified AP team members must observe all five steps prior to making a shoplifter apprehension.

NOTE: If local law enforcement takes independent action and makes an apprehension before all five steps are met, the details must be documented in the CIRS report.

1. Initiation of Observation - The subject must enter the store/area without possession of Target merchandise.
2. Selection - The subject must be observed selecting Target merchandise from the display location.
3. Concealment - The subject must be observed concealing the merchandise, or the AP team member must have NO reasonable doubt based on observations that the merchandise has been concealed by the subject.
NOTE: If the merchandise is not actually concealed, it must be exposed as the subject exits or attempts to exit the store.
4. Maintain Observation - The AP team member must maintain sufficient surveillance of the subject in order to know the location of the merchandise and ensure the subject does not discard the merchandise.

NOTE: A Productive Merchandise Recovery (PMR) shall be attempted if surveillance is broken for any reason, or the AP team member can not maintain sufficient surveillance. (See PMR Directive).

5. Failure to Pay for Merchandise/Exiting the Store -AP team member(s) must observe the subject attempt to exit the store without paying for the merchandise.

NOTE: Some jurisdictions allow variances from the exiting requirement to allow apprehensions of concealed merchandise before an individual reaches the building's exit. In these cases, the requirements must be documented and approved by the Director or Vice President of Assets Protection using the "Variance from Exiting Form" (found on the AP Zone).

-----------------
D. Restroom / Fitting Room Apprehensions
AP team members are not allowed to conduct surveillance or make apprehensions in restroom and/or fitting rooms.
1. AP team members are not allowed to follow subject's into a restroom or fitting room to conduct surveillance.
2. AP team members shall not ask another team member to enter a fitting room or restroom to conduct surveillance.
---------------
B. Searches of Private Residence or Motor Vehicles
1. AP team members will NOT participate in a search of a private residence or motor vehicle.
--------------
1. Fleeing Shoplifter
a. If a shoplifter attempts to flee after being confronted, do not give chase in any manner (running, driving, etc.).
b. Store based AP team members shall not use any vehicle to follow or pursue a subject for any reason.
c. AP team members shall not encourage, condone, suggest or ask another Target team member or anyone else to chase a fleeing shoplifter.
----------------
2. AP shall refer for prosecution all individuals apprehended for retail theft when the value of the merchandise is $20.00 or greater and the case meets local prosecution requirements.

NOTE: If a case meets/exceeds the $20.00 referral guideline, but is NOT referred, the reason for non-referral must be included in the CIRS narrative. (Example: Local jurisdiction limits require merchandise in excess of $75.00 in order for prosecution.)

3. A team member witness, of the same gender of the suspected shoplifter , must be present in the room at all times during the detention.

--------------

A. Photographing Shoplifters
1. Adult shoplifters - AP shall photograph all adult shoplifters unless prohibited by local statutes or ordinances.
2. Team Member Shoplifters - AP will not photograph any team member apprehended for shoplifting during working or non-working hours.
3. Juvenile Shoplifters - AP will not photograph any juveniles apprehended for shoplifting, unless required by local statutes or ordinances.

========================

and you can look at:
[targetstoressecurity.blogspot.com]

@Felix the Cat: And the most wasted space at the end of a post award goes to: Felix the Cat.

Prospective New Employer: So, Dustin. Have you ever been fired?

Dustin: (Grinning) Why yes.

Prospective New Employer: Oh? And may I ask why you were fired?

Dustin: (Still smiling) Funny you should ask...

Having sat here, read the entire article, all the comments up 'till now, and formed an opinion. I can honsetly say that America, as a whole, has lost it's freaking mind.

I fully support what Dustin Chester did and personally wish that the laws protected him and his rare case of HAVING A PAIR. It makes me a little sick to hear stoies like this were men, who are looking out for the good of society, are punnished simply becuase they decided that it was in the best interest of the planet to act. It's every individuals personal decision how to handle their actions, he chose to put himself aside and make an effort to stop a crime, that was detrimental to his employer, and the customers his employer needs.

It's outrageous that companies will simply tack on another dollar to my purchase, rather than let men who choose to be proactive and correct situations like this get the job done. If Dustin didn't feel like acting he could have walked away. He chose to step up and it sucks he can be treated this way.

Look on the bright side. You no longer are going to need another job because you're set for life!

One more reason to pass on Home Depot.

I'll keep going to Lowes.

As someone who has been suspended from work for a similiar policy let me put this out there....much cheaper for the retailer to simply not chase and suffer the product loss then to have to pay out a major medical claim because an employee is injured during an chase/aprehension. As the chaser, you have NO way to know what awaits you once you run after the shoplifter. We had a grocery store employee that was run over by the shoplifter's buddies (and yes they did back over him again just to make sure they had done a good job). In another instance an employee was chasing a shoplifter and run into an elderly lady at the front door, knocking her down. She suffered a broken hip and later died from her injuries. Best just to let them go...the liability is to high.

I am so disappointed in the state of accountablity in this country. Let everybody get away with everything because we might be sued? Why is everybody in this country afraid to DO THE RIGHT THING?

i support this guy too. it sucks that he was trying to protect the company's interests & gets canned for it.

that said, i worked for campus security while i was in college. we were a division of the university police department (we looked like cops), but even we weren't authorized to detain people. our only course of action was to ask a person for ID. if they refused, we could not force them or even stand in their way. detaining a person would not only get us canned, but could land us in jail.

i don't agree with HD, but i understand their position. dustin was acting outside of the law & continuing to retain his services could expose them to financial liability.

dustin, good luck in the future & kudos for doing the right thing - even if it cost you your job. being righteous isn't always easy, but it's people like you that make this world a better place to live in. thanks.

This is a policy at Best Buy too. Not even the loss prevention personnel can pursue a shoplifter. The reason, as it was explained to me, is that if this policy were not in place, and the shoplifter is harmed in any way, they could sue the store and have a very good case. Also, the person who is confronting the shoplifter can be hurt, which creates insurance issues for the company, and can also result in a lawsuit by the employee. With surveillance technology in place at all these types of places, management wants their employees safe, and to let the police do their job. Imagine if Mr. Crowbar had a gun and shot poor Dustin?

That however does not excuse Home Depot for not letting all employees know that they are not to chase/detain a shoplifter. I would have not known about the policy at Best Buy had I not overheard a loss prevention person talking about it with a manager. The same thing had happened at another store and the LP employee was terminated.

For those who think they can walk in and steal with impunity since no one is supposed to forcibly detain you, remember Big Brother is watching. Crime doesn't pay! Just say no!

Can I ask how on one hand, this website can get all up in arms about a guy getting fired for detaining a suspected thief, but on the other hand confront management at TigerDirect for doing the exact same thing?

What bothers me more...how does this guy know he was a thief?

He had a crowbar.
He had a wad of cash.

Well...that's great.

Home Depot sells crowbars.
Crowbars are purchased with cash.

He noticed that a guy was standing outside with money and a crowbar and tried to detain him? How is this any different than detaining a guy who doesn't show a receipt?

Well why in the ham sandwich do they have guards checking your bags/receipts at the exit?!?!

This is policy for every retailer. It's too much liability for them to have employees going after thieves. He was just unlucky to not know about it.

I worked at Home Depot about 6 years ago, I used to stop people all the time.

One guy tried to roll out with 5 air conditioners on a lumber cart. "Excuse me sir, may I check your receipt?" "Oh...yea...I just pulled up my car to load these up and left it in the car - hold on, I'll go get it." "OK." Needless to say, he didn't come back.

I knew it was company policy to never follow a [suspected] thief outside of the building and it was a definite no-no to tackle anyone.

The store manager eventually got "moved to another store" because of such a horrible shrink rate (I heard 8.5%). For every $100 of merchandise sold, $8.50 was stolen - awesome!

=============================================
Someone above suggested that the guy have a customer help him as the customer would not get in trouble.

Here a nice bystander goes to help out a Target AP Thug and gets stabbed by the shoplifter.

Does Target want to compensate the person? Well read on folks. But in summary it was sent back to the Ok. District Court so the case goes forward.

====================================

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

--------------------------------------------------

TIMOTHY S. THERRIEN, an individual, Plaintiff-Appellant,

v.

TARGET CORPORATION, a Minnesota corporation,
Defendant-Appellee.

No. 06-5110
(D.C. No. 06-CV-217-JHP-FHM)
(N.D. Okla.)

--------------------------------------------------------

ORDER AND JUDGMENT(*)

-------------------------------------------------------

Before HOLMES, McKAY, and BRORBY, Circuit Judges.

-------------------------------------------------------

Timothy S. Therrien was shopping at a Target store when a Target loss-prevention employee confronted a suspected shoplifter. The Target employee and the suspect became involved in a physical confrontation. When the suspect began to overwhelm the employee, the employee called out to bystanders for help, and Mr. Therrien responded. During the ensuing struggle, the suspect stabbed and injured Mr. Therrien. Alleging various theories of negligence, Mr. Therrien filed suit against Target Corporation in Oklahoma state court. Target removed the case to federal district court and moved under Fed. R. Civ. P. 12(b)(6) for dismissal of the complaint.

The district court granted Target's motion, and Mr. Therrien appeals. We have jurisdiction under 28 U.S.C. § 1291, and we REVERSE and REMAND for further proceedings.

I. Standard of Review
We review de novo a district court's Rule 12(b)(6) dismissal of a complaint for failure to state a claim for relief. Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). We take all well-pleaded factual allegations as true and view them in the light most favorable to the plaintiff. Id. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support [his] claims." Ruiz, 299 F.3d at 1181. Because this is a diversity case, we apply federal law to procedural questions, but state law to the analysis of the underlying claims. Haberman v. The Hartford Ins. Group, 443 F.3d 1257, 1264 (10th Cir. 2006).

II. Analysis
Mr. Therrien argues that he set forth at least five distinct claims: (1) negligent provision of store security; (2) negligent training and supervision; (3) negligent handling of the situation with the suspect leading to the physical altercation; (4) negligently requesting assistance and directing such assistance from bystanders; and (5) liability under the rescue doctrine. To proceed with a claim of negligence under Oklahoma law, Mr. Therrien must establish that (1) Target owed him a duty to protect him from injury; (2) Target failed properly to perform its duty; and (3) he suffered injuries that were proximately caused by Target's breach of its duty. See Jackson v. Jones, 907 P.2d 1067, 1071-72 (Okla. 1995).

A. Oklahoma Landowner Liability for Criminal Attacks
The primary issue is whether Target owed Mr. Therrien a duty to protect him from injury from a criminal attack by a third party. Mr. Therrien contends that, under Oklahoma law, Target has a duty to use reasonable care to prevent a criminal attack when it knows that the attack is occurring or is about to occur. See Taylor v. Hynson, 856 P.2d 278, 281 (Okla. 1993).

Oklahoma premises liability law classifies Mr. Therrien as an invitee. See id. ("It is well established that a person who goes on land to conduct business is a business invitee for the purposes of establishing liability."). A business generally does not have a duty to protect an invitee from criminal attacks by third persons. Id. Oklahoma, however, has recognized such a duty in "unique circumstances." Id. An invitor's knowledge "that the acts of the third person are occurring, or are about to occur" may constitute such circumstances. Id. at 281-82 (quotation omitted). Thus, Oklahoma law recognizes that, "[w]hen an invitor has knowledge that an invitee is in imminent danger, the invitor must act reasonably to prevent injury." Id. at 281.

In Morgan v. Southland Associates, 883 P.2d 205, 206 (Okla. Civ. App. 1994), a case involving a criminal attack on plaintiff at a mall food court, the Oklahoma Court of Civil Appeals reversed the trial court's dismissal of plaintiff's petitions. After describing Taylor's teachings, the court stated that because plaintiff had pleaded defendant's knowledge of the attack, which would give rise to a duty on defendant's part, as well as breach of the duty and damages, the trial court had erred in dismissing the petitions for failure to state a claim. Id. at 207. "To hold otherwise would be to find that the rule a business invitor has no duty to protect invitees from criminal acts of third parties is absolute." Id. at 206-07.

Similarly, Mr. Therrien pleaded that Target was aware that a criminal act was imminent or occurring, so that Target had a duty to use reasonable care to prevent the suspect from harming Mr. Therrien; that Target breached its duty; and that Mr. Therrien suffered harm as a "direct and proximate result" of Target's breach. Aplt. App. at 7-9. As in Morgan, these allegations are sufficient to state a claim under Taylor.

Target urges us to decide that the fight between the Target employee and the suspect was an open and obvious condition and that Mr. Therrien had knowledge equal to Target of the unsafe condition, so that Target owed Mr. Therrien no duty of care. See, e.g., Dover v. W.H. Braum, Inc., 111 P.3d 243, 245 (Okla. 2005) ("There is no duty to warn the invitee of any defect or danger which is as well-known to the invitee as to the owner or occupant or which is obvious or which should be observed by the invitee in the exercise of ordinary care."); Pickens v. Tulsa Metro. Ministry, 951 P.2d 1079, 1084 (Okla. 1997) ("Even vis-a-vis an invitee, to whom a landowner owes the highest duty . . ., the law does not require that the landowner protect the invitee against dangers which are so apparent and readily observable that one would reasonably expect them to be discovered.").

But since Taylor, Oklahoma's premises liability cases involving criminal attacks focus on the invitor's knowledge of criminal activity; they do not appear to incorporate the "open and obvious danger" analysis found in physical-defects cases. See, e.g., Taylor, 856 P.2d at 281-82; Rogers v. Burger King Corp., 82 P.3d 116, 122-23 (Okla. Civ. App. 2003); Young v. Bob Howard Auto., Inc., 52 P.3d 1045, 1048-49 (Okla. Civ. App. 2002); McClure v. Group K Enters., Inc., 977 P.2d 1148, 1150-51 (Okla. Civ. App. 1999); Folmar v. Marriott, Inc., 918 P.2d 86, 87-89 (Okla. Civ. App. 1996); Edington v. A & P Enters., Inc., 900 P.2d 453, 455 (Okla. Civ. App. 1994); Morgan, 883 P.2d at 206-07; see also Wells v. Boston Ave. Realty, 125 F.3d 1335, 1340 (10th Cir. 1997) ("Plaintiff has cited no cases that support treating a criminal assault as a 'defect' creating premises liability."). In any event, whether or not a particular condition is open and obvious generally requires an examination of all of the circumstances. Zagal v. Truckstops Corp. of Am., 948 P.2d 273, 275 (Okla. 1997). Thus, we decline to hold, at this initial stage of the proceedings, that the "open and obvious danger" rule necessarily bars Mr. Therrien's claim as a matter of law.

Target also argues that Mr. Therrien's "attempt to create five distinct claims is contrary to law." Aplee. Br. at 9. We agree that four of Mr. Therrien's five claims (the exception being the negligent training and supervision claim) appear to stem from Taylor, rather than stating separate bases for recovery. But in light of the limited record before this court, we will let the district court evaluate each of Mr. Therrien's claims in the first instance to determine whether each should proceed separately.

B. Negligent Training and Supervision
Mr. Therrien also alleges that Target was negligent in its training and supervision of the loss prevention employee. This claim invokes a recognized basis for recovery in Oklahoma: "[e]mployers may be held liable for negligence in hiring, supervising or retaining an employee." N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla. 1999); see also Morgan, 883 P.2d at 206-07 (reversing dismissal of petition that included claims of negligent training). Negligent hiring and supervision is a separate theory of recovery based on the employer's direct negligence, rather than liability under the doctrine of respondeat superior. N.H., 998 P.2d at 600. In Oklahoma, this claim is only available if an employer's vicarious liability is not established. Id. Consequently, while Mr. Therrien has stated a claim sufficient to withstand a Fed. R. Civ. P. 12(b)(6) motion to dismiss on this issue, how far this claim can proceed will depend on the evidence before the district court during further proceedings.

III.
The judgment of the district court is REVERSED and the case is REMANDED for further proceedings in the district court.

Entered for the Court

Monroe G. McKay Circuit Judge
----

[targetfiling.blogspot.com]

@taylorich: That however does not excuse Home Depot for not letting all employees know that they are not to chase/detain a shoplifter.

Seriously, shouldn't that be one of the first things mentioned during training for any floor staff, and posted prominently in the employee lounge?

sweet. everybody get your crow bars and let's go to home depot! FREE COKES!

@gatopeligroso:

I guess you don't know Miss Teen South Carolina...

..sigh, what happened to humor in this world.

I can understand the need for such policies. My best friend was nearly paralyzed for life by a thief who was running from an in-mall store employee. He hit the door running, broke the hydraulic door mechanism in the process, and crushed her spine between the door handle and the payphone she was on.

What did she get out of the entire experience? Nothing but chronic back problems, surgeries, and a load of medical bills that weren't even partially paid off by a settlement until more than eight years after the incident.

In short, there's reasons for these policies, even if they're not readily apparent. The store that the thief was stealing from (and using a stolen credit card at) had such a policy. She could have been much healthier and been able to finish nursing school at that time had the employee followed it.

This guy's an idiot, and deserved to lose his job. He's lucky he didn't lose his life. Stores have these policies to protect the employees, the customers, and the store. Not only did he ignore company policy, he ignored commonsense! As others have said, anything could've been waiting for him around the bend. It's a shame the thief didn't fight back. Maybe then this guy and hicks like him would think twice. Never go into a situation blind.

@EtherealStrife: Sorry, rednecks. My bad.

Dunno how exactly it is in the states, but in Canada, when I worked in a retail giant, we were not allowed to lay a hand on a thief, inside or outside the store. We could detain them by locking the door if we were fast enough and ask them to turn over the goods. Also pursuit is a no-no. Once they leave the store, you call the police, take down a license if you can and shrug it off...