Adamson v. May Co.

• Decision Date: 03 June 1982
• Citation: 8 Ohio App.3d 266,456 N.E.2d 1212
• Parties: , 8 O.B.R. 358 ADAMSON, Appellant, v. The MAY COMPANY et al., Appellees. *
• Court: Ohio Court of Appeals

Page 266

8 Ohio App.3d 266

456 N.E.2d 1212, 8 O.B.R. 358

ADAMSON, Appellant, v. The MAY COMPANY et al., Appellees. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

June 3, 1982.

Syllabus by the Court

1. Where plaintiff asserts malicious prosecution and false imprisonment by a merchant for a supposed theft of the merchant's goods, a bind over order at the preliminary hearing or a grand jury indictment in the criminal theft prosecution creates a rebuttable presumption that the merchant had probable cause to prosecute, unless plaintiff shows those proceedings received perjured testimony or were otherwise significantly irregular.

2. Summary judgment should be denied for a merchant relying on that presumption, if the plaintiff rebuts the presumption with evidentiary material of a substantial nature that the merchant lacked such probable cause, which the court finds has at least counterbalanced the presumption.

Dennis A. Rotman,

Cleveland, for appellant.

Jan Saurman, Lakewood, for appellees.

MARKUS, Judge.

Plaintiff seeks reversal of a summary judgment dismissing his action against a department store and its security officer for malicious prosecution and false imprisonment. ¹ Defendants argue that summary judgment was justified because the security officer's probable cause to believe plaintiff committed a theft offense had been demonstrated by two prior determinations of probable cause. The municipal court judge had so found when he ordered plaintiff's bind over for grand jury consideration, and the grand jury so found when it indicted plaintiff for that theft. We conclude that each of those prior determinations created a legal presumption that probable cause existed for plaintiff's prosecution. However, we also conclude that evidentiary materials contained in plaintiff's affidavit and his deposition sufficiently rebutted those presumptions to create genuine issues of material fact. Therefore, summary judgment was not appropriate, and we are obliged to reverse and remand for further proceedings.

The total evidence presented to support or oppose the summary judgment motion consisted of plaintiff's deposition, plaintiff's affidavit, and plaintiff's indictment by the grand jury. Collectively those evidentiary materials showed certain undisputed facts.

Plaintiff was employed by the defendant department store. A store security officer detained him and a co-employee as they sat in plaintiff's automobile in the store parking lot. After the security officer questioned them at the car and in the store, store personnel contacted local police officers who arrested both employees for grand theft. The municipal court later heard testimony of the security officer ² and found probable cause to believe plaintiff had committed the crime charged, so that court bound him over for grand jury proceedings. Thereafter, the grand jury indicted him for grand theft. For unstated reasons, the prosecutor requested that the charge be nolled at plaintiff's initial pretrial hearing, and the case was dismissed. Subsequently, plaintiff filed the present action.

I

In order to recover in an action for malicious prosecution, a plaintiff must establish:

" * * * (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the defendant. * * *" Rogers v. Barbera (1960), 170 Ohio St. 241, 164 N.E.2d 162 , paragraph one of the syllabus.

Defendants seemingly acknowledge there is sufficient evidence that the prosecution terminated in plaintiff's favor, so as to prevent summary judgment on that ground. Cf. Douglas v. Allen (1897), 56 Ohio St. 156, 46 N.E. 707; Gaiser v. Hurleman (1906), 74 Ohio St. 271, 78 N.E. 372; Kunz v. Miller (App.1958), 80 Ohio Law Abs. 198, 157 N.E.2d 885. The parties apparently agree that malice in commencing or continuing the prosecution can be implied if defendants lacked probable cause to believe plaintiff had committed any offense. Cf. Melanowski v. Judy (1921), 102 Ohio St. 153, 131 N.E. 360. However, defendants assert the claim that they acted without probable cause to believe plaintiff committed an offense has been disproved as a matter of law.

Proof that defendants lacked probable cause to believe plaintiff had committed an offense is also essential to plaintiff's false imprisonment claim. False imprisonment occurs when the defendant acts:

" * * * ' * * * to confine one intentionally without lawful privilege and against his consent within a limited area for any appreciable time, however short.' 1 Harper and James, The Law of Torts, 226, Section 3.7 (1956)." Feliciano v. Kreiger (1977), 50 Ohio St.2d 69 at 71, 362 N.E.2d 646 .

Plaintiff's detention by the security officer would have been lawful if the security officer had probable cause to believe plaintiff had stolen store merchandise. R.C. 2935.041. ³ In that event, it could not constitute false imprisonment.

In order to render summary judgment, a trial court must find that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. In making these determinations, the court must construe all evidence most strongly in favor of the party against whom judgment is sought. Civ.R. 56(C). ⁴

Thus, summary judgment is not appropriate here unless reasonable minds would necessarily conclude from the evidentiary materials submitted that defendants acted with probable cause to believe plaintiff assisted in the theft. On the other hand, summary judgment would be proper if defendants' evidentiary materials required that finding, unless plaintiff submitted contrary evidentiary material sufficient to rebut it by showing reasonable minds could conclude defendants lacked such probable cause. ⁵

II

In determining whether a tort defendant had probable cause to believe that plaintiff committed an offense, Ohio courts have assigned considerable weight to similar findings by tribunals in the underlying criminal case. Those Ohio decisions have said that an order to bind the accused over after a preliminary hearing or an indictment of the accused by a grand jury constitutes prima facie evidence that there was probable cause for prosecution. Epling v. Pacific Intermountain Express Co. (1977), 55 Ohio App.2d 59, 379 N.E.2d 239 ; C.F. Adams Co. v. Robertson (1908), 16 Ohio C.C. (N.S.) 278; Hruska v. Severance Specialty, Inc. (C.A. 6, 1974), 498 F.2d 796 (applying Ohio law). Neither of those tribunal findings constitutes conclusive evidence of probable cause, and a plaintiff in the malicious prosecution action may offer rebuttal evidence. Ash v. Marlow (1851), 20 Ohio 119; Epling, supra.

The choice of language in these decisions seems unfortunate. Ordinarily, prima facie evidence means the quantum of proof sufficient to avoid an adverse directed verdict, an adverse peremptory jury instruction, or any other adverse legal ruling premised on a failure to supply information for evaluation by the trier of fact. In a false imprisonment or malicious prosecution action, the plaintiff has the burden of proving that the defendant acted without probable cause. The defendant has no burden to prove that he had probable cause to justify his actions. At most, he may have a burden of rebuttal or a risk of nonpersuasion to dispel acceptance of the plaintiff's evidence on that subject. Consequently, it seems awkward to say the defendant in a malicious prosecution action presented prima facie evidence on an issue for which he had no burden of proof. The defendant has presented sufficient evidence for a trier of fact to consider his position regarding probable cause, by challenging the plaintiff's evidence and without presenting any evidence of his own on that subject.

Instead, the Ohio cases should be treated as establishing a legal presumption that the accuser had probable cause for his accusation if a bind over order or an indictment results, unless the related preliminary hearing or grand jury proceeding received perjured testimony or was otherwise significantly irregular. Cf. Boose v. Rochester (1979), 71 A.D.2d 59 421 N.Y.S.2d 740; Lee v. Mt. Vernon (1979), 68 A.D.2d 902, 414 N.Y.S.2d 215; Zalewski v. Gallagher (1977), 150 N.J.Super. 360, 375 A.2d 1195; Jones v. McKesson & Robbins, Inc. (D.N.D.1965), 237 F.Supp. 454. See, also, Annotation, 28 A.L.R.3d 748.

This presumption follows from the likelihood that such a tribunal finding is reliable, and the public policy to discourage lawsuits which inhibit enforcement of the criminal laws. Cf. McCormick, Evidence (2 Ed. Cleary Ed. 1972), Section 343. Absent substantial irregularities in their conduct, experience has shown these tribunals are reasonably well devised to find whether probable cause exists for the prosecution. They are not necessarily precursors of convictions, which require a considerably higher standard of proof. Further, the public should be encouraged to assist in prosecuting apparent offenders. They may be inappropriately dissuaded from doing so by the risk and expense of adverse litigation, particularly where an independent tribunal later confirms their belief that prosecution is appropriate.

At the same time, the presumption resulting from a bind over order or an indictment should be rebuttable. A malicious prosecution action fails without proof that the criminal case terminated favorably for the accused. It should be obvious that the bind over order and the indictment should not have conclusive weight. A contrary rule would change the elements of this action and exclude recovery in any case where there has been a bind over order or an indictment, regardless of its fanciful or unfounded source. The ability to rebut probable cause presumed from an indictment is particularly significant, since the grand jury's evidence is usually secret and beyond the plaintiff's reach. If the probable cause presumption were not rebuttable, a truly malicious accuser could lie at the preliminary hearing...