Case: Personal Injury -
Jury gives boy $40,000 over gum-theft arrest
By Sean Holton
OF THE SENTINEL STAFF
Daniel Bartsch, 7, got enough money Friday to buy 95,238 packages of Bubble Yum Grape chewing gum.
A jury awarded Daniel and his mother $40,000 after concluding that the boy never should have been arrested and hauled off to the police station last April for stealing a 42-cent pack of gum from a Winter Springs convenience store.
"This is going to sound off the wall and really corny, but I wasn't out for big bucks." Jyl Bartsch Van Dusen said after the verdict was read at the Orange County Courthouse.
Van Dusen, 31, and her son went to court seeking unspecified damages from Southland Corp., which owns the 7-Eleven store where the boy, then 6, was arrested for shoplifting.
Daniel did not attend the civil trial, which began Wednesday and ended after nearly 2 hours of deliberations by a jury of six.
The jury awarded Daniel and his mother $20,000 in compensation for harm caused by the arrest and another $20,000 as punishment to Southland. The company's lawyer indicated he will appeal the case.
The suit accused Southland of malicious prosecution, unlawful detention and intentional infliction of emotional distress after store manager Duane Reichert had Daniel arrested and charged by police April 1.
Southland agreed to drop the charges two days later, but Van Dusen and her lawyer argued that the episode traumatized the boy and triggered the relapse of a psychological condition depriving him of control of his bowels.
The trial featured detailed testimony about that condition, as well as efforts by Van Dusen's lawyer to discredit testimony from a kindergarten teacher, who said she didn't notice any changes in the boy's behavior after the arrest.
Sonny Hilyard, attorney for Southland, hurried from the courthouse after the trial, saying only that the verdict "is essentially inconsistent and I don't think it will stand up on appeal."
Van Dusen, who said before the verdict that she would not appeal if she lost, said she doesn't like the idea of having Southland drag the case out any further.
"This is humiliating, let's face it," she said. "It has turned our lives upside down."
Jury foreman John Stover, 34, said there was much discussion in the jury room but little disagreement over the basic contention that Reichert was wrong to press charges against the boy.
It was "primarily the fact that he called the police without even getting his [Daniel's] name, address, or phone number," Stover said.
The jury threw out the unlawful detainment charge, Stover said, because "we felt it was quite appropriate for the store manager to detain him. But he should have called his parents."
Daniel's lawyer, William McMurry, told the jury the store manager had staked out the candy aisle for 5 to 10 minutes, hiding behind a display shelf and watching the boy pick up and put back the chewing gum several times.
He said Reichert even had held the door for the boy as he walked out with the gum.
Reichert and Hilyard said that was false and noted that McMurry never produced an eyewitness in court. They said the store manager was only doing his job when he stopped the boy and called police.
Once at the police station, Daniel was booked, fingerprinted and photographed in a lineup area. Defense lawyers stressed that the boy never actually was jailed, and that the mug shots and fingerprints were taken with his mother's approval.
Much of Southland's effort was spent trying to show that the long-term effects of the arrest on Daniel had been exaggerated. If anything, Hilyard said, Van Dusen had caused more embarrassment to her son when she called three television stations and talked to a newspaper about the arrest.
Southland's case relied heavily on testimony from Valerie Davis, Daniel's kindergarten teacher, who said the boy did not seem the least bit scarred and was eager to share the experience with his classmates at show-and-tell.
That opened the school teacher to attack from Daniel's attorney.
"Where Mrs. Davis comes from, I don't know," McMurry said in his closing argument. "But I can tell you I think it's fortunate that Danny's gone on in life to the first grade."
McMurry's final address to the jury was flowered with quotations from Thomas Jefferson and the Bible, and at times seemed like an anthology of Western literature.
At one point, he compared Daniel's situation to that of Jean Valjean, the hero of Victor Hugo's Les Miserables. He also alluded to Pip, the rags-to-riches hero in Charles Dickens' Great Expectations.
Following that literary theme, McMurry asked jurors to add poetic justice to the damage award by incorporating the price of the chewing gum in the amount.