McCann v. Wal-Mart Stores Inc., CROSS-APPELLANTS

• Decision Date: 07 March 2000
• Docket Number: CROSS-APPELLEE,Nos. 99-1162,CROSS-APPELLANTS,WAL-MART,99-1355,s. 99-1162
• Citation: 210 F.3d 51
• Parties: (1st Cir. 2000) DEBRA MCCANN, PERSONALLY, AND AS MOTHER AND NEXT FRIEND OF JILLIAN MCCANN AND JONATHAN MCCANN, PLAINTIFFS, APPELLEES/, v.STORES, INC., DEFENDANT, APPELLANT/ Heard
• Court: U.S. Court of Appeals — First Circuit

Page 51

210 F.3d 51 (1st Cir. 2000)

DEBRA MCCANN, PERSONALLY, AND AS MOTHER AND NEXT FRIEND OF JILLIAN MCCANN AND JONATHAN MCCANN, PLAINTIFFS, APPELLEES/CROSS-APPELLANTS, v. WAL-MART STORES, INC., DEFENDANT, APPELLANT/CROSS-APPELLEE.

Nos. 99-1162, 99-1355

United States Court of Appeals For the First Circuit

Heard March 7, 2000

Decided April 14, 2000

John W. McCarthy with whom Rudman & Winchell, Llc was on consolidated brief for defendant.

Samuel W. Lanham, Jr. with whom Cuddy & Lanham was on consolidated brief for plaintiffs.

Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

Boudin, Circuit Judge.

This case involves a claim for false imprisonment. On December 11, 1996, Debra McCann and two of her children--Jillian, then 16, and Jonathan, then 12--were shopping at the Wal-Mart store in Bangor, Maine. After they returned a Christmas tree and exchanged a CD player, Jonathan went to the toy section and Jillian and Debra McCann went to shop in other areas of the store. After approximately an hour and a half, the McCanns went to a register and paid for their purchases. One of their receipts was time stamped at 10:10 p.m.

As the McCanns were leaving the store, two Wal-Mart employees, Jean Taylor and Karla Hughes, stepped out in front of the McCanns' shopping cart, blocking their path to the exit. Taylor may have actually put her hand on the cart. The employees told Debra McCann that the children were not allowed in the store because they had been caught stealing on a prior occasion. In fact, the employees were mistaken; the son of a different family had been caught shoplifting in the store about two weeks before, and Taylor and Hughes confused the two families.

Despite Debra McCann's protestations, Taylor said that they had the records, that the police were being called, and that the McCanns "had to go with her." Debra McCann testified that she did not resist Taylor's direction because she believed that she had to go with Taylor and that the police were coming. Taylor and Hughes then brought the McCanns past the registers in the store to an area near the store exit. Taylor stood near the McCanns while Hughes purportedly went to call the police. During this time, Debra McCann tried to show Taylor her identification, but Taylor refused to look at it.

After a few minutes, Hughes returned and switched places with Taylor. Debra McCann told Hughes that she had proof of her identity and that there must be some proof about the identity of the children who had been caught stealing. Hughes then went up to Jonathan, pointed her finger at him, and said that he had been caught stealing two weeks earlier. Jonathan began to cry and denied the accusation. At some point around this time Jonathan said that he needed to use the bathroom and Hughes told him he could not go. At no time during this initial hour or so did the Wal-Mart employees tell the McCanns that they could leave.

Although Wal-Mart's employees had said they were calling the police, they actually called a store security officer who would be able to identify the earlier shoplifter. Eventually, the security officer, Rhonda Bickmore, arrived at the store and informed Hughes that the McCanns were not the family whose son had been caught shoplifting. Hughes then acknowledged her mistake to the McCanns, and the McCanns left the store at approximately 11:15 p.m. In due course, the McCanns brought suit against Wal-Mart for false imprisonment (a defamation claim was also made but was rejected by the jury).

The jury awarded the McCanns $20,000 in compensatory damages on their claim that they were falsely imprisoned in the Wal-Mart store by Wal-Mart employees. Wal-Mart has now appealed the district court's denial of its post-judgment motions for judgment as a matter of law and for a new trial pursuant to Fed. R. Civ. P. 50(b) and 59, respectively, arguing that the McCanns did not prove false imprisonment under Maine law and that the court's jury instructions on false imprisonment were in error. The McCanns have cross-appealed from the district court's pre-trial dismissal of their claim for punitive damages.

Both of Wal-Mart's claims of error depend on the proper elements of the tort of false imprisonment. Although nuances vary from state to state, the gist of the common law tort is conduct by the actor which is intended to, and does in fact, "confine" another "within boundaries fixed by the actor" where, in addition, the victim is either "conscious of the confinement or is harmed by it." Restatement (Second), Torts § 35 (1965). The few Maine cases on point contain no comprehensive definition, see Knowlton v. Ross, 95 A. 281 (Me. 1915); Whittaker v. Sanford, 85 A. 399 (Me. 1912), and the district court's instructions (to which we will return) seem to have been drawn from the Restatement.

While "confinement" can be imposed by physical barriers or physical force, much less will do--although how much less becomes cloudy at the margins. It is generally settled that mere threats of physical force can suffice, Restatement, supra, § 40; and it is also settled--although there is no Maine case on point--that the threats may be implicit as well as explicit, see id. cmt. a; 32 Am. Jur. 2d False Imprisonment § 18 (1995) (collecting cases), and that confinement can also be based on a false assertion of legal authority to confine. Restatement, supra, § 41. Indeed, the Restatement provides that confinement may occur by other unspecified means of "duress." Id. § 40A.

Against this background, we examine Wal-Mart's claim that the evidence was insufficient, taking the facts in the light most favorable to the McCanns, drawing reasonable inferences in their favor, and assuming that the jury resolved credibility issues consistent with the verdict. See Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994); Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 716 (1st Cir. 1994). Using this standard, we think that a reasonable jury could conclude that Wal-Mart's employees intended to "confine" the McCanns "within boundaries fixed by" Wal-Mart, that the employees' acts did result in such a confinement, and that the McCanns were conscious of the confinement.

The evidence, taken favorably to the McCanns, showed that Wal-Mart employees stopped the McCanns as they were seeking to exit the store, said that the children were not allowed in the store, told the McCanns that they had to come with the Wal-Mart employees and that Wal-Mart was calling the police, and then stood guard over the McCanns while waiting for a security guard to arrive. The direction to the McCanns, the reference to the police, and the continued presence of the Wal-Mart employees (who at one point told Jonathan McCann that he could not leave to go to the bathroom) were enough to induce reasonable people to believe either that they would be restrained physically if they sought to leave, or that the store was claiming lawful authority to confine them until the police arrived, or both.

Wal-Mart asserts that under Maine law, the jury had to find "actual, physical restraint," a phrase it takes from Knowlton, 95 A. at 283; see also Whittaker, 85 A. at 402. While there is no complete definition of false imprisonment by Maine's highest court, this is a good example of taking language out of context. In Knowlton, the wife of a man who owed a hotel for past bills entered the hotel office and was allegedly told that she would go to jail if she did not pay ...