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finding that this defense was inapplicable because "Officer Locke acted solely on the facts urged by another without any independent investigation to corroborate such allegations"
Summary of this case from McLeod v. Wal-Mart Stores, Inc.Opinion
A01A0706, A01A0707.
DECIDED: MAY 8, 2001.
Negligence, etc. Fulton State Court. Before Judge Brogdon.
Duncan Mangiafico, George E. Duncan, Jr., for Appellants (Case no. A01A0706).
Kimberly L. Miller, for Appellant (Case no. A01A0707).
Mathis Adams, Charles A. Mathis, Jr., David N. Krugler, Thomas F. Cuffie, for Appellee.
These are interlocutory appeals from the denial in part of motions for summary judgment by Corporate Property Investors owners of Lenox Square Shopping Mall, Pembroke Management, Inc., management company for the mall, Minasha Fernanders, a Lenox Square security guard, and Officer Constance A. Locke, the Atlanta Police Department, who was on beat patrol responding to a dispatch to Lenox; their motions were denied as to Captain Ronald C. Milon's, Northwest Airlines' pilot, claims against them for negligence, false arrest, false imprisonment, assault and battery, malicious prosecution, and punitive damages. The trial court erred in denying summary judgment on the claims for assault and battery; the trial court is affirmed as to the denial of summary judgment for claims of negligence, false arrest, false imprisonment, malicious prosecution, and punitive damages as to all the defendants except Officer Locke. Officer Locke is entitled to summary judgment under discretionary immunity.
On December 18, 1996, while passing Episodes Clothing Store, Ms. Fernanders allegedly saw someone who appeared to be Capt. Milon, placing a white blouse into a black bag. She went into the store and approached the plaintiff who had a black bag, tapping him on the shoulder to get his attention. When the security officer approached Capt. Milon, he had laid an off-white blouse down on a counter, but again had it in his possession when Officer Locke arrived, because he testified that he was in the process of purchasing it. Ms. Fernanders requested that Capt. Milon leave the store with her, which he refused to do, saying that this must be a joke; Capt. Milon continued shopping for five or ten minutes. At no time did Ms. Fernanders identify herself or tell Capt. Milon what she wanted or question the employees in the store, regarding the belief that Capt. Milon had attempted to shoplift from their store.
Fernanders reported by radio to her supervisor that she had witnessed a customer attempting to shoplift at Episodes and asked "for a backup police officer." The supervisor called Atlanta P. D.; it was reported to Atlanta P. D. that "there was a shoplifting in progress", and Officer Locke responded. Outside Episodes, Ms. Fernanders told Officer Locke outside Episodes that "she witnessed Mr. Milon take a white blouse, conceal it in his tote bag, and attempt to walk out of the store [he] saw her standing there and immediately turned around, put the bag down, grabbed the blouse, and put it either back out on the shelf or hung it up." Ms. Fernanders pointed out Capt. Milon, who was still inside Episodes, out to Locke as the attempted shoplifter.
Capt. Milon denied attempting to place the blouse in his child's tote bag or even opening it in Episodes and stated he never saw Ms. Fernanders until she spoke to him. The assistant manager of Episodes assisted Capt. Milon when he entered the store while he selected an off-white blouse and a pants suit for his wife.
On cross-examination, Ms. Fernanders admitted that she never witnessed Capt. Milon remove a white blouse from his bag. But Ms. Fernanders had previously told Locke and the magistrate that she had witnessed Capt. Milon place a garment in the bag and then remove the garment, which had been relied upon to establish probable cause for the arrest and bindover. At the preliminary hearing attended only by Ms. Fernanders for the prosecution, Ms. Fernanders revealed that as she was passing by the store window, she had seen Capt. Milton putting the blouse in the bag through the mannequins from a distance of 45 feet.
Officer Locke approached Capt. Milon based on the allegations made by Ms. Fernanders alone, and Capt. Milon saw Ms. Fernanders with Officer Locke and responded defensively and belligerently as a black man previously falsely suspected of shoplifting by Ms. Fernanders while Christmas shopping for his wife. Officer Locke asked where the black bag was, and he answered, "what bag?" Then Capt. Milon told Officer Locke that his child's black tote bag was in the chair. Neither Officer Locke nor Ms. Fernanders made any investigation or questioned any of the employees of Episodes prior to or even after arresting Capt. Milon. Thus, based upon her experience, Officer Locke concluded that Capt. Milon's demeanor indicated his guilt to her. Therefore, Officer Locke arrested Capt. Milon based upon his demeanor, response, and Ms. Fernanders statement. Based only on the facts told her by Ms. Fernanders and her subjective opinion of Capt. Milon's attitude, she immediately placed Capt. Milon under arrest.
Based upon Ms. Fernanders' testimony alone, Capt. Milon was bound over by the magistrate. In the State Court of Fulton County, the charge of shoplifting was nolle prossed against Capt. Milon.
Case No. A01A0706
1. The defendants contend that the trial court erred in denying summary judgment to them as to negligence, false arrest, false imprisonment, assault and battery, malicious prosecution, and punitive damages.
(a) The defendants contend that they are shielded from liability for false arrest, false imprisonment, and malicious prosecution, because Officer Locke exercised her own professional judgment in making the arrest of Capt. Milon for attempted shoplifting without the influence of Ms. Fernanders. See Jacobs v. Shaw, 219 Ga. App. 425, 426 (1) ( 465 S.E.2d 460) (1995). Had the evidence revealed that Officer Locke, in fact, made an independent investigation, as was her professional duty to do, and based her decision to arrest Capt. Milon on her independent investigation and the statements of Ms. Fernanders, then there would be a basis upon which professional judgment was exercised and such would constitute a defense. However, merely to assert that Officer Locke exercised her professional judgment based on no probative facts, other than those told to her by Ms. Fernanders, some of which Ms. Fernanders now admits that she did not see, fails to constitute the predicate for the defense of the exercise of independent professional judgment by the on-duty police officer, because Officer Locke acted solely on the facts urged by another without any independent investigation to corroborate such allegations. See Jacobs v. Shaw, supra at 426-427 (1); McLeod v. Pruco Life Ins. Co., 215 Ga. App. 177, 179-180 (1) ( 449 S.E.2d 895) (1994). Further, plaintiff's evidence controverts Officer Locke's affidavit and testimony. Id. at 426.
In Jacobs v. Shaw, supra at 426, the professional judgment of the non-party officer was based upon the prosecution witness' statement, misrepresentations made by the accused regarding the prosecuting witness' statement, on-scene investigation, review of the report by the state regulatory agency after checking the gas pump for accuracy, the accused's statement, and professional experience. Id. at 427. In McLeod, supra at 178-179, the detective based his professional judgment upon two witnesses' statements obtained in the investigation, circumstantial evidence that the accused only had access to the money determined by investigation, and the officer's independent investigation. In contrast, in this case the only alleged facts upon which probable cause could be based was the statement of Ms. Fernanders as to what she allegedly saw.
Furthermore, as a party and not as a disinterested witness, unlike the above cases, Officer Locke's statement that the arrest was based upon her professional judgment constitutes a mere statement of self-serving opinion and a legal conclusion that cannot support the grant of summary judgment.
[W]e must give full weight to the rule that a jury, not a judge, may construe the facts upon which such opinion is based and reach a diametrically different conclusion to that reached by the witness. . . . Thus, on opinion evidence alone, a summary judgment is not demanded as a matter of law, although such opinion evidence is always sufficient to make a jury issue.
(Citations omitted and emphasis in the original.) Ginn v. Morgan, 225 Ga. 192, 193 ( 167 S.E.2d 393) (1969); see also Savannah Valley c. Assn. v. Cheek, 248 Ga. 745, 746-747 ( 285 S.E.2d 689) (1982); Tony v. Pollard, 248 Ga. 86, 90 (3) ( 281 S.E.2d 557) (1981); Home Ins. Co. v. Sunrise Carpet Indus., 229 Ga. App. 268, 272-273 (2) ( 493 S.E.2d 641) (1997). ""An expert may aid the jury, but he can not perform the function of a juror, and under the guise of giving testimony, state a legal conclusion. [Cits.]'" Wells v. Metro. Life Ins. Co., 107 Ga. App. 826, 834 ( 131 S.E.2d 634) (1963). "Allegations, conclusory facts, and conclusions of law cannot be utilized to support or defeat motions for summary judgment." (Citations and punctuation omitted.) Johnson v. MARTA, 230 Ga. App. 105, 107 (1) ( 495 S.E.2d 583) (1998).
(b) If all of what Ms. Fernanders told Officer Locke was proven to be true, then this would constitute probable cause for the arrest. However, there exists a compelling issue of the credibility of Ms. Fernanders. Ms. Fernanders made material, prior inconsistent statements to both Officer Locke and the magistrate that she saw Capt. Milon take the blouse out of the bag and put it back on the shelf; but on deposition she admitted that she had not seen Capt. Milon take the blouse out of the bag. Further, there exist facts tending to disprove what Ms. Fernanders testified to having seen, i.e., (1) the fact that she allegedly observed what she claims while walking by the store window handing out security flyers 45 feet away and through a mannequin-crowded store window; (2) the fact that the child's black tote bag allegedly held the blouse with all the other items in it already; (3) the fact that the store personnel did not see Capt. Milon open the bag while he was being helped by the manager; and (4) the fact that the plaintiff denied everything that Ms. Fernanders said that she saw. These questions of credibility and conflict in the evidence can only be resolved by a jury. See Foster v. Ramsey, 245 Ga. App. 118, 119 (1) ( 536 S.E.2d 550) (2000); Harding v. Ga. Gen. Ins. Co., 224 Ga. App. 22, 25 ( 479 S.E.2d 410) (1996). "Where a party gives testimony contradicting an out-of-court admission of such party, it is for the trier of fact to say whether it was true or false when made. [Cit.]" Dills v. Bohannon, 208 Ga. App. 531, 533 (1) ( 431 S.E.2d 123) (1993); Foster v. Ramsey, supra at 120.
"A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case." O.C.G.A. § 24-9-83; Gibbons v. State, 248 Ga. 858, 862 ( 286 S.E.2d 717) (1982).
"A witness may be impeached by disproving the facts testified to by him." O.C.G.A. § 24-9-82; Morris v. State Farm Mut. Auto. Ins. Co., 203 Ga. App. 839 ( 418 S.E.2d 119) (1992).
(c) Where a prosecuting witness urges the arrest and prosecution of another without adequate investigation to determine if there exists a reasonable basis to believe that probable cause exists, such individual risks tort liability if there exists no probable cause to reasonably believe that the plaintiff committed a crime. See Ellis v. Knowles, 90 Ga. App. 40, 42 (2) ( 81 S.E.2d 884) (1954). See also Nicholl v. Great Atlantic Pacific Tea Co., 238 Ga. App. 30, 33-34 ( 517 S.E.2d 561) (1999) (Physical precedent only.) In this case, Ms. Fernanders, when the testimony that is in conflict is construed most strongly against Capt. Milon, thought only that she saw Capt. Milon attempting to put a blouse in a black bag, which, if true, could have several reasonable inferences pointing to innocence, as well as guilt, and requiring further investigation.
In deciding if the belief of the prosecutor was reasonable, the prosecutor must have determined that [the] apparent state of facts which seemed to exist after reasonable and proper inquiry [by the exercise of] the duty of caution and avoidance of haste [constituted probable cause]. Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 335-336 (2) ( 45 S.E.2d 827) (1947); see also Coleman v. Allen, 79 Ga. 637, 640-642 (5 S.E. 204) (1888); Nicholl v. Great Atlantic Pacific Tea Co., supra at 33; Sanfrantello v. Sears, Roebuck Co., 118 Ga. App. 205, 207 ( 163 S.E.2d 256) (1968). If a reasonable person would have investigated to determine if probable cause existed prior to urging an arrest and prosecution, then such failure to make an investigation may imply malice, as well as go to whether probable cause existed. See McClelland v. Courson's 441 South Station, Inc., 248 Ga. App. 170 ( 546 S.E.2d 300) (2001) (A00A1827 decided 2/21/01); Fleming v. U-Haul Co., 246 Ga. App. 681, 683-684 ( 456 S.E.2d 260) (2000); Medoc Corp. v. Keel, 166 Ga. App. 615, 617 (2) ( 305 S.E.2d 134) (1983); Melton v. LaCalamito, 158 Ga. App. 820, 824 (2) (b) ( 282 S.E.2d 393) (1981); see also Nicholl v. Great Atlantic Pacific Tea Co., supra at 33.
In actions for [tort liability for false arrest, false imprisonment, or malicious prosecution], the question is, not whether the plaintiff was guilty, but whether the defendant had reasonable cause to so believe — whether the circumstances were such as to create in the mind of the defendant a reasonable belief that there was probable cause for the [arrest and] prosecution. Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was [arrested and] prosecuted.
(Citations and punctuation omitted.) Tanner-Brice Co. v. Barrs, 55 Ga. App. 453, 453 (2) (190 S.E. 676) (1937); see also Wilson v. Wheeler's Inc., 190 Ga. App. 250, 252-253 (1) ( 378 S.E.2d 498) (1989). "Whether the circumstances alleged to show probable cause existed is a matter of fact, to be determined by the jury, but whether they amount to probable cause is a question of law for the court." (Citations and punctuation omitted.) Wilson v. Wheeler's Inc., supra at 252 (1); see also Booker v. Eddins, 183 Ga. App. 449, 451 ( 359 S.E.2d 211) (1987), overruled on other grounds, Cincinnati Ins. Co. v. Premier Tractor Trailer Repair, 192 Ga. App. 243 ( 384 S.E.2d 449) (1989).
The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution, he may be liable for failure to do so. All such factors as the reliability of the source, the availability of further information and the difficulty of obtaining it, the reputation of the accused, and his opportunity to offer an explanation, and the apparent necessity of prompt action, are to be considered in determining whether it was reasonable to act without verification. Prosser, [Law of Torts, § 119, 842 (4th ed. 1971)].
(Punctuation omitted.) Melton v. LaCalamito, supra; see also McClelland v. Courson's 441 South Station, Inc., supra; McGonagil v. Treadwell, 216 Ga. App. 850, 854 ( 456 S.E.2d 260) (1995); Atlantic Zayre, Inc. v. Meeks, 194 Ga. App. 267, 269 ( 390 S.E.2d 398) (1990); Wilson v. Wheeler's Inc., supra; Medoc Corp. v. Keel, supra at 617. However, if the prosecutor distorts facts, conceals facts, or is negligent in ascertaining facts, then the finding of probable cause by a magistrate will not protect the prosecutor. Hicks v. Brantley, 102 Ga. 264, 273 (2) (29 S.E. 459) (1897); see also Fleming v. U-Haul Co. of Ga., supra at 683.
(d) The defendants contend that the physical seizure of Capt. Milon and handcuffing of him by Officer Locke cannot be imputed to them as an assault and battery. We agree, because she was not acting as either an employee or independent contractor for them at the time of arrest, but in the scope of her official duties.
Officer Locke could be liable for committing an assault and battery upon Capt. Milon by making an illegal arrest. See Napper v. State, 200 Ga. 626, 629 (1) ( 38 S.E.2d 269) (1946). However, the on-duty peace officer, carrying out her official duty, is not the agent, servant, or employee of a private citizen making a complaint; therefore, her conduct cannot be imputed to such citizen. Hyatt Corp. v. Cook, 242 Ga. App. 542, 545 ( 529 S.E.2d 633) (2000); Wilson v. Waffle House, 235 Ga. App. 539 ( 510 S.E.2d 105) (1998); Rembert v. Arthur Schneider Sales, Inc., 208 Ga. App. 903, 905 ( 432 S.E.2d 809) (1993); Quinones v. Maier Berkele, Inc., 192 Ga. App. 585, 589-590 (2) ( 385 S.E.2d 719) (1989); Welton v. Ga. Power Co., 189 Ga. App. 17, 19-20 (1) ( 375 S.E.2d 108) (1988). The defendants did not control the time, manner, or method of the officer's performance of her official duties; therefore, the officer's conduct could not be imputed to them. Beck v. Paideia School, Inc., 191 Ga. App. 183, 184 (1) ( 381 S.E.2d 132) (1989). Further, Officer Locke did not work off-duty for the defendants. Welton v. Ga. Power Co., supra at 19-20.
2. The defendants contend that they cannot be liable under a theory of negligence for any damages sustained by Capt. Milon from his arrest, detention, and prosecution, because there is no action for negligent false arrest, negligent false imprisonment, and negligent prosecution. However, plaintiff asserts a claim sounding in negligence, because "[t]here is no such tort [as negligent false arrest or negligent false imprisonment]. To constitute a false imprisonment [or false arrest], the act of the defendant in [arresting or] confining the plaintiff must be done with the intention of causing [an arrest or] confinement." (Citation and punctuation omitted.) Stewart v. Williams, 243 Ga. 580, 581 (1) ( 255 S.E.2d 699) (1978). By definition a negligent act cannot be malicious, because acting with malice is an intentional act as opposed to a careless act. See Southern et al. v. Sphere-Drake Ins. Co., Inc., 226 Ga. App. 450, 452 ( 486 S.E.2d 674) (1997). However, in this case, the traditional elements of negligence apply, i.e., (1) a legal duty to exercise ordinary care to protect others from an unreasonable risks of harm; (2) a breach of the standard of care; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to plaintiff's legally protected interest as a result of the breach of duty. Bradley Center v. Wessner, 250 Ga. 199, 200 ( 296 S.E.2d 693) (1982).
If the [arrest and] confinement [are] due to the defendant[s'] negligence, the latter may be liable as for negligence, but the action is then governed by the rules and principles of the tort of negligence, according to which the plaintiff is required to show actual damage. In other words, there can be no such tort as [negligent false arrest,] negligent false imprisonment which of itself makes the defendant liable without proof of the invasion of some interest other than the bare interest in freedom from [arrest and] confinement.
(Citation and punctuation omitted.) Stewart v. Williams, supra at 581-582. See also Baggett v. Nat. Bank Trust Co., 174 Ga. App. 346, 348-350 (2) ( 330 S.E.2d 108) (1985); Oden Sims Used Cars, Inc. v. Thurman, 165 Ga. App. 500, 502-503 (3) ( 301 S.E.2d 673) (1983).
Case No. A01A0707
3. Officer Locke contends that the trial court erred in failing to grant her motion for summary judgment under discretionary immunity while acting under color of law. We agree and reverse.
Officer Locke took the alleged facts reported to her by Ms. Hernanders as true without making a professional police investigation and allowed her own personal feelings that a belligerent, hostile attitude by an African American male accused of a crime was an indication of guilt rather than righteous outrage of an innocent, law abiding citizen, cloud her professional judgment, causing her to rush to judgment prematurely.
In good faith, Officer Locke believed that at the time of the arrest all the facts alleged by Ms. Hernanders were true, that Ms. Hernanders saw Capt. Milon stuff a blouse into a black bag and that he saw her watching him and removed the blouse from the bag; thus, Officer Locke had a factual basis for probable cause at the time of arrest, although such would constitute unprofessional police work without an independent investigation to avoid making a mistake as occurred in this case. See Barnett v. State, 204 Ga. App. 491, 493 (1) ( 420 S.E.2d 43) (1992); Ellis v. State, 164 Ga. App. 366, 367-368 (2) ( 296 S.E.2d 726) (1982). As a trained professional police officer, Officer Locke should have known that prosecuting witnesses generally tell the truth as they know it to be or believe it to be but, also can be mistaken as to what they believe they saw or may either intentionally and falsely fill-in facts as to what they saw with fictional details or in good faith selectively fill gaps in what they saw to match their preconceptions, prejudices, or conclusions. Also, witnesses may simply lie from a hidden motive. An investigation is designed to corroborate these alleged facts by other witnesses and to determine the reliability and veracity of the prosecuting witness and the accused to determine if probable cause does in fact exist and not burden the courts with groundless accusations of imagined criminal conduct. It is for this reason that police officers have broad discretionary judgment in making an arrest, which discretion should never be abdicated by inaction, pressure, persuasion, or prejudice.
Officer Locke's conduct, while unprofessional, was not wilful, fraudulent, corrupt, or malicious; therefore, she enjoyed limited immunity. See O.C.G.A. § 34-1-4; Hennessy v. Webb, 245 Ga. 329, 330-331 ( 264 S.E.2d 878) (1980); McDay v. City of Atlanta, 204 Ga. App. 621, 621-622 (1) ( 420 S.E.2d 75) (1992); Price v. Owen, 67 Ga. App. 58, 60-61 ( 19 S.E.2d 529) (1942). For Officer Locke to be liable, there must be not only an absence of probable cause, but also malice. O.C.G.A. § 51-7-1; Smith et al. v. Trust Co. Bank et al., 215 Ga. App. 413, 415 (1) ( 450 S.E.2d 866) (1994); Pinkston v. City of Albany, 196 Ga. App. 43 ( 395 S.E.2d 587) (1990). Although a police officer performs an illegal act, the law will not presume malice or animus from such act alone. Franklin v. Consolidated Gov. of Columbus, Ga., 236 Ga. App. 468, 471 (1) ( 512 S.E.2d 352) (1999).
Judgment affirmed in part and reversed in part in A01A0706. Judgment reversed in A01A707. Miller, J., concurs Andrews, P.J., concurs in judgment only.