Banks v. Nordstrom, Inc.

• Decision Date: 19 March 1990
• Docket Number: No. 23125-1-I,23125-1-I
• Citation: 57 Wn.App. 251,787 P.2d 953
• Court: Washington Court of Appeals
• Parties: Lisa BANKS, Appellant, v. NORDSTROM, INC., Respondent.

Page 251

57 Wn.App. 251

787 P.2d 953

Lisa BANKS, Appellant, v. NORDSTROM, INC., Respondent.

No. 23125-1-I.

Court of Appeals of Washington,

Division 1.

March 19, 1990.

Reconsideration Denied April 30, 1990.

Joseph Chalverus, Seattle, for appellant

Suzanne Kelly Michael, Lane, Powell, Moss & Miller, Seattle, for respondent.

SOLIE M. RINGOLD, ^* Judge Pro Tem.

The plaintiff Lisa Banks appeals from a summary judgment dismissing her complaint against defendants Nordstrom, Inc. and several Nordstrom's employees (referred to collectively as Nordstrom). Finding that material factual issues remain regarding her claim for malicious prosecution, we reverse.

On December 26, 1987, Gail Smith, a Nordstrom security officer at the downtown Seattle Nordstrom store, observed five individuals shoplifting. Seattle police officers were called. The suspects were questioned by Smith and the police officers and then arrested. Two of the suspects were identified as Lisa Banks and her father John Banks. In actuality, the individuals arrested were Sharon Banks, Lisa's older sister, and Sharon's boyfriend. Sharon was carrying Lisa's driver's license. The suspects were taken to the police station, booked, and released.

On January 5, 1988, defendant Evelyn Dingman a/k/a/ Sevelette, Nordstrom's civil claims manager, sent a letter to Lisa demanding civil restitution totalling $889.70. This letter, received on January 6, 1988, was Lisa's first notice of the shoplifting incident. At about this time, Lisa also received a notice from the prosecuting attorney's office that she had been charged with first degree theft and was scheduled to be arraigned on January 11, 1988.

Lisa immediately telephoned Gail Smith and informed her of the error. At Smith's request, Lisa and her father went to the Nordstrom store later the same day. Smith confirmed that Lisa and John Banks were not the individuals arrested on December 26, 1987, and gave Lisa a handwritten note on Nordstrom stationery, dated January 6, 1988, stating that Lisa was not the same woman who was arrested on December 26. ¹ Lisa states that Smith also told her that she would get the charges dismissed.

Smith maintains that she called a "Detective Corbett" of the Seattle Police Department and told him that Lisa was not the woman arrested on December 26, 1987. The record does not disclose, however, who "Detective Corbett" is or when this call occurred. By affidavit, Det. Frank Kampsen, one of the investigating officers, stated that the Seattle Police Department's fingerprint system was inoperable on December 26, 1987, making it impossible to discover the false identification provided by the suspects. Kampsen further averred that the involvement of store security generally ceases at the time of arrest until trial and that Nordstrom "would not and could not" have prevented Banks's arraignment.

Lisa also contacted the prosecutor's office and was informed that the charges against her were still pending and that if she did not appear at the arraignment, a bench warrant for her arrest would be issued and she could go to jail. Lisa was unable to contact anyone at Nordstrom, except Ms. Sevelette on one occasion, who told her that she could not do anything because of "inventory." On January 11, 1988, Lisa appeared at arraignment. After entering her "not guilty" plea, Lisa was booked, fingerprinted, and released. The Omnibus hearing was scheduled for January 22, 1988.

On the day after arraignment, Lisa retained counsel, who also was unable to contact either Ms. Smith or Ms. Sevelette. Counsel received a telephone call on January 21, 1988, from Mike Wargin, Nordstrom's security manager, who stated that "all efforts will be made to prevent a false arrest," but that he had not yet contacted Gail Smith or the prosecutor.

In response to a letter from Lisa's counsel, Ms. Sevelette sent a notarized statement by messenger to the prosecutor on January 22, 1988, indicating that Lisa and John Banks were not the shoplifting suspects. Based upon the affidavit, the charges against Lisa were dismissed just prior to the Omnibus hearing. Both Smith and Sevelette assert that they heard nothing further from Lisa after she came to the On March 18, 1988, Lisa filed the instant action against Nordstrom, Evelyn Sevelette, and Gail Smith, alleging claims of malicious prosecution, outrage, invasion of privacy, negligent hiring and supervision, and violations of the Consumer Protection Act. Lisa sought damages for "personal, mental and emotional anguish, ... embarrassment and humiliation." Lisa also sought recovery for legal expenses and triple damages. The trial court granted Nordstrom's motion for summary judgment dismissing the action. This appeal followed.

store for identification until the receipt of [787 P.2d 956] the letter from Lisa's counsel on January 19.

STANDARD OF REVIEW

In reviewing an order of summary judgment, we undertake the same inquiry as the trial court and determine whether the materials submitted demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); Hartley v. State, 103 Wash.2d 768, 774, 698 P.2d 77 (1985). We view the materials submitted and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).

MALICIOUS PROSECUTION

Malicious prosecution is the label attached to a tort violating one's freedom from wrongful prosecution. See W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 119, at 870 (5th ed. 1984).

Banks first contends that there are material factual issues regarding her malicious prosecution claim. In order to maintain an action for malicious prosecution, the plaintiff must establish

(1) that the prosecution claimed to have been malicious was instituted or continued by the defendant; (2) that there was want of probable cause for the institution or continuation of the prosecution; (3) that the proceedings were instituted or continued through malice; (4) that the proceedings terminated on the merits in favor of the plaintiff, or were abandoned; and Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 497, 125 P.2d 681 (1942). Nordstrom asserts that no material factual issues exist as to elements (1), (2), and (5).

(5) that the plaintiff suffered injury or damage as a result of the prosecution.

(1) Prosecution Instituted or Continued by the Defendant

Nordstrom's primary argument is that it did not "institute" or "continue" the prosecution against Lisa but merely called the police and assisted in the apprehension of the shoplifting suspects. No authority supports such a narrow interpretation of the "institution" requirement in a malicious prosecution action. See, e.g., Odom v. Williams, 74 Wash.2d 714, 719, 446 P.2d 335 (1968) (party who signed criminal complaint instituted the prosecution); see also 52 Am.Jur.2d Malicious Prosecution § 24 (1970). Moreover, the basis for Lisa's claim is not the institution of the prosecution, but rather Nordstrom's alleged malicious continuation of the prosecution between January 6, 1988, when Nordstrom became aware of the misidentification, and January 22, 1988, when the prosecution was dismissed. Consequently, Det. Kampsen's assertion that Nordstrom could not have prevented Lisa's arraignment is essentially irrelevant. ²

Although Washington law has long recognized a cause of action for malicious prosecution or the malicious continuation of a prosecution, see Peasley v. Puget Sound Tug, supra, no reported Washington decision has directly addressed the circumstances here, in which a party that properly instituted or procured the institution of criminal proceedings subsequently became aware of the defendant's innocence. Potential liability under such circumstances is recognized by the Restatement (Second) of Torts § 655 (1977), which states:

§ 655. Continuing Criminal Proceedings

A private person who takes an active part in continuing or procuring the continuation of criminal proceedings initiated by himself or by another is subject to the same liability for malicious prosecution as if he had then initiated the proceedings.

As one commentator has observed:

Not only the instigation of criminal proceedings but continuing to prosecute such proceedings maliciously after learning of their groundless nature will result in liability, although they had been begun in good faith and with probable cause. Clearly, it is as much a wrong against the victim and as socially or morally unjustifiable to take an active part in a prosecution after knowledge that there is no factual foundation for it, as to instigate such proceedings in the first place.

(Footnote omitted.) 1 F. Harper & F. James, Torts § 4.4, at 307 (1956); see also 52 Am.Jur.2d, supra § 26; see generally Annot., Malicious Prosecution: Liability for Instigation or Continuation of Prosecution of Plaintiff Mistakenly Identified as Person Who Committed an Offense, 66 A.L.R.3d 10 (1975).

Whether a party has "continued" a criminal proceeding for purposes of malicious prosecution liability depends on the specific facts of the case. There is general agreement, however, that where the instigator loses control of the case once prosecution has commenced, his or her continued participation in the prosecution will not support liability for malicious prosecution. Walsh v. Eberlein, 114 Ariz. 342, 560 P.2d 1249, 1252 (Ct.App.1977). "[A] malicious prosecution action will not lie where a prosecuting attorney is left to judge the propriety of proceeding with the charge and acts on his own initiative in doing so." Walsh v. Eberlein, supra.

In Walsh v. Eberlein, supra, the plaintiff was arrested and charged with passing forged checks, based primarily on eyewitness identifications. Subsequently, the investigating detective became aware of exculpatory handwriting and polygraph evidence, as well as the...