Big B, Inc. v. Cottingham

• Decision Date: 10 September 1993
• Citation: 634 So.2d 999
• Parties: BIG B, INC. v. Katherine COTTINGHAM. 1920746.
• Court: Alabama Supreme Court

Page 999

634 So.2d 999

BIG B, INC. v. Katherine COTTINGHAM.

1920746.

Supreme Court of Alabama.

Sept. 10, 1993.

Paul G. Smith of Smith, Spires & Peddy and Larry W. Harper of Porterfield, Harper & Mills, Birmingham, for appellant.

W. Lee Pittman and Nat Bryan of Pittman, Hooks, Marsh, Dutton & Hollis, P.C., Birmingham, and Bud Turner, Anniston, for appellee.

HOUSTON, Justice.

Katherine Cottingham sued Big B, Inc., and one of its assistant store managers, Gary Vaughn. Cottingham sought to recover compensatory and punitive damages from Vaughn for false imprisonment and assault and battery (her assault and battery claim was based on allegations that Vaughn forced her to engage in a sex act with him) and from Big B based on the doctrine of respondeat superior. She also alleged that Big B had negligently or wantonly trained and supervised Vaughn and that that negligence or wantonness was the proximate cause of her injuries. Cottingham sought punitive damages from Big B under her wantonness claim as well. At the close of all the evidence, the trial court granted Big B's motion for a directed verdict on the assault and battery claim, ruling that Vaughn's solicitation of the sex act from Cottingham was outside the line and scope of his employment with Big B. The trial court also granted Cottingham's motion to dismiss Vaughn as a defendant. The trial court denied Big B's motion for a directed verdict on the false imprisonment, negligence, and wantonness claims and submitted those claims to the jury, with Big B as the only defendant. The jury returned a general verdict for Cottingham, awarding her $5,000 in compensatory damages and $1,000,000 in punitive damages, and the trial court entered a judgment on that verdict. Big B's motion for a judgment notwithstanding the verdict as to all of the claims or, in the alternative, a new trial or remittitur was later denied. Big B appeals, and we conditionally affirm.

False Imprisonment

False imprisonment consists of the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty. Ala.Code 1975, § 6-5-170. For there to be a false imprisonment, there must be some direct restraint of the person; however, it is not necessary that there be confinement in a jail or a prison. Any exercise of force, or the express or implied threat of force, by which in fact the other person is deprived of his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment. Daniels v. Milstead, 221 Ala. 353, 128 So. 447 (1930). An employer may be held legally liable for a false imprisonment committed by one of its employees while acting within the line and scope of his employment. Birmingham News Co. v. Browne, 228 Ala. 395, 153 So. 773 (1934). Ala.Code 1975, § 6-11-27(a), provides:

"(a) A principal, employer or other master shall not be liable for punitive damages for intentional wrongful conduct or conduct involving malice based upon acts or omissions of an agent, employee or servant of said principal, employer or master unless the principal, employer or master either: (i) knew or should have known of the unfitness of the agent, employee or servant, and employed him or continued to employ him, or used his services without proper instruction with a disregard of the rights or safety of others; or (ii) authorized the wrongful conduct; or (iii) ratified the wrongful conduct; or unless the acts of the agent, servant or employee were calculated to or did benefit the principal, employer or other master, except where the plaintiff knowingly participated with the agent, servant or employee to commit fraud or wrongful conduct with full knowledge of the import of his act."

(Emphasis added.)

After carefully reviewing the record, we conclude that the evidence, when viewed in the light most favorable to Cottingham was sufficient to submit the false imprisonment claim to the jury. There was both substantial and clear and convincing evidence that Vaughn, while acting within the line and scope of his employment, wrongfully detained Cottingham during business hours at one of Big B's stores after a shoplifter, an acquaintance of Cottingham's who had entered the store with her, had escaped. ¹ Vaughn, who Cottingham said appeared to be upset that the shoplifter had escaped, held Cottingham in a back room, where he falsely accused her of participating in the theft and demanded that she tell him who the shoplifter was. Vaughn, a former marine, stood between Cottingham and the door, intimidating her and threatening to have her arrested and prosecuted on shoplifting charges. Vaughn testified that "[Cottingham] was verbally abused [by him in a manner] which no human being should have ever went through." He further testified: "I know I done wrong for the simple fact of the verbal abuse Ms. Cottingham has had to take.... There is not another human being [who] should have been put through what she was put through because of one man's anger to get at another man." Cottingham, who testified that she was too afraid to attempt to leave the room, asked Vaughn what she could do to avoid prosecution. Vaughn asked what his cooperation was worth to her. Cottingham offered to pay for the merchandise that had been stolen or to clean the store. Before this discussion could progress any further, a police officer arrived to investigate the incident. Vaughn told Cottingham that their discussion would have to continue after the police officer left. Cottingham cooperated fully with the police officer, identifying the shoplifter by name. Vaughn told the officer that Cottingham was a witness and that she had had nothing to do with the theft. It was at this point that Big B's liability under the doctrine of respondeat superior ended. After the officer had gone, Vaughn immediately picked up his conversation with Cottingham where they had left off, telling Cottingham that he had up to six months to have her prosecuted. Vaughn then asked Cottingham if she had "ever [given] a white man a blow job." Cottingham replied that she had not. Vaughn responded, "Well, you're about to learn." Vaughn then grabbed Cottingham by her arms and forced her to perform fellatio on him by threatening to file a criminal complaint against her.

Although it is undisputed for purposes of this appeal that Big B is not legally responsible for Vaughn's actions after the police officer left, ² there was sufficient evidence to show that up until the police officer's arrival Vaughn, while acting within the line and scope of his employment and for Big B's benefit, had falsely imprisoned Cottingham. We hold, therefore, that the false imprisonment claim against Big B was properly submitted to the jury.

Negligent Training and Supervision

In Lane v. Central Bank of Alabama, N.A., 425 So.2d 1098, 1100 (Ala.1983), this Court, quoting Thompson v. Havard, 285 Ala. 718, 723, 235 So.2d 853 (1970), stated:

" 'In the master and servant relationship, the master is held responsible for his servant's incompetency when notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon its being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. It is incumbent on the party charging negligence to show it by proper evidence. This may be done by showing specific acts of incompetency and bringing them home to the knowledge of the master, or by showing them to be of such nature, character, and frequency that the master, in the exercise of due care, must have had them brought to his notice. While such specific acts of alleged incompetency cannot be shown to prove that the servant was negligent in doing or omitting to do the act complained of, it is proper, when repeated acts of carelessness and incompetency of a certain character are shown on the part of the servant to leave it to the jury whether they would have come to his knowledge, had he exercised ordinary care."

See, also, Ledbetter v. United American Ins. Co., 624 So.2d 1371 (Ala.1993).

The evidence material to Cottingham's claim of negligent training and supervision, again viewed most favorably toward Cottingham, shows the following: Big B ran a background check on Vaughn before it hired him, and that check, which included an examination of his credit history, revealed nothing that would have called into question Vaughn's fitness for employment. Vaughn's application for employment with Big B indicated that Vaughn had been honorably discharged from the United States Marine Corps and that he had obtained management experience while working with another retail store chain. Vaughn also took and passed the "Reid Psychological Systems Test," which was used by Big B as a tool to evaluate a potential employee's integrity. During his employment with Big B, Vaughn received mostly favorable performance evaluations from his superiors and he was considered to be exceptional in the area of store security. Before his dismissal, Vaughn had apprehended numerous shoplifters without an incident or a complaint of impropriety. However, Vaughn's supervisors did not review Big B's training manuals with Vaughn in accordance with company policy. In addition, Vaughn's supervisors had a reason to question Vaughn's fitness for employment when he was accused of making an unwanted sexual advance toward a 16-year-old female part-time employee of Big B. The young woman had complained to her mother, who in turn had complained to Randall Stephens, one of Big B's district managers. Stephens confronted Vaughn with the accusation in a meeting that was also attended by Jose Suco, Vaughn's immediate supervisor. Vaughn denied any wrongdoing, and Stephens instructed him "that Big B absolutely did not tolerate anything like that in any shape,...