Buckel v. Nunn

• Jurisdiction: Oregon
• Parties: , 10 IER Cases 769 Randi BUCKEL, Respondent, v. Ron NUNN, dba Town & Country Market, Dennis Nunn and Richard Rowe, Defendants, and Steven Rodrigues, Appellant. ; CA A83213.
• Citation: 133 Or.App. 399,891 P.2d 16
• Docket Number: No. 91-CV-0348,91-CV-0348
• Court: Oregon Court of Appeals
• Decision Date: 08 March 1995

Page 16

891 P.2d 16

133 Or.App. 399, 10 IER Cases 769

Randi BUCKEL, Respondent, v. Ron NUNN, dba Town & Country Market, Dennis Nunn and Richard Rowe, Defendants and Steven Rodrigues, Appellant.

No. 91-CV-0348; CA A83213.

Court of Appeals of Oregon.

Argued and Submitted Dec. 16, 1994.

Decided March 8, 1995.

P. David Ingalls argued the cause and filed the opening brief, for appellant. With him on the reply brief was Cowling, Heysell, Plouse, Ingalls & Moore.

Clayton Patrick argued the cause, for respondent. On the brief were Mark Lansing, R. Daniel Simcoe and Sloan & Lansing.

Before WARREN, P.J., and De MUNIZ and LEESON, JJ.

LEESON, Judge.

Plaintiff brought claims against the owner and manager of Town & Country Market (the market) and against defendant Rodrigues ¹ and his employee, Rowe, who provided security services to the market. She sought damages allegedly suffered when she was questioned by defendant and Rowe about employee thefts at the market. Defendant appeals from the judgment entered for plaintiff after a jury verdict. We affirm.

Defendant assigns error to the trial court's denial of his motions for directed verdicts on plaintiff's claims for intentional infliction of emotional distress, false imprisonment, and his defense of probable cause to the claim for false imprisonment under the merchant's statutory privilege to detain a suspected thief in a reasonable manner and for a reasonable time. ORS 131.655. He also assigns error to the trial court's refusal to remove the issue of punitive damages from the jury. We review the record in the light most favorable to plaintiff, the party opposing the motions. ² We will reverse the judgment only if the record contains no evidence to support plaintiff's claims or if defendant was entitled, as a matter of law, to the defense of probable cause on the claim of false imprisonment. Petty v. Rogue Federal Credit Union, 106 Or.App. 538, 541, 809 P.2d 121, rev. den. 311 Or. 432, 812 P.2d 828 (1991).

Plaintiff was employed for approximately nine months as a part-time grocery clerk at the market. The Nunns hired S & S Security, owned by defendant, to investigate alleged employee thefts. The contract with S & S Security specified that defendant and Rowe were to provide surveillance of store employees, conduct "honesty shops" ³ and apprehend and process store employees as appropriate. The contract also provided that S & S Security would be paid $400 per month and 50 percent of any recovered property or moneys.

On November 19, 20 and 26, 1989, defendant conducted "honesty shops" at the market and concluded that plaintiff was taking money. On December 20, defendant directed Rowe to question plaintiff about the thefts.

Shortly after 6:00 p.m. that evening, Rowe confronted plaintiff in the parking lot as she left the market after her regular shift. Rowe displayed a badge and requested that she return to the market with him. He led plaintiff back into the store and, after allowing her to make a telephone call, took her to a small storage room in the back of the market and asked her to sit on a crate. Rowe positioned himself between plaintiff and the swinging half-doors leading out of the room. Rowe told plaintiff several times that he would decide whether she would go home or go to jail that evening. He repeatedly accused her of stealing from the market, but did not offer any evidence to corroborate his accusations. Plaintiff was visibly upset throughout the interrogation, which lasted for about 3 hours. Plaintiff initially claimed innocence, but about 30 minutes into the interrogation, she confessed to taking merchandise, lottery tickets and cash from the market.

During the course of the interrogation, plaintiff's husband and mother-in-law made several telephone calls to the market, but plaintiff was allowed to receive only one call from her husband. Rowe frequently left the room to confer with Dennis Nunn about items that were allegedly missing and to request that Nunn total up the cost of the merchandise that plaintiff had admitted stealing. Following each conference with Nunn, Rowe returned to the room and informed plaintiff that there was more that she was not telling him.

At approximately 9:00 p.m., defendant joined Rowe in his interrogation of plaintiff. By that time, plaintiff had admitted to taking $4,000 in merchandise, lottery tickets and cash from the market. Plaintiff was visibly upset when defendant entered the back room. Initially, defendant appeared to be sympathetic to her, telling her that he knew what she was going through and that he wanted to help her. Defendant and Rowe then repeatedly asked plaintiff about items she may have taken. When she asked "if that was enough," they told her it was not, that they knew there was more. Approximately 20 minutes after defendant joined in the interrogation, plaintiff admitted to taking an additional $5,000 in merchandise, lottery tickets and cash. At the end of the interrogation, she agreed to sign a promissory note for $9,000.

Plaintiff refused to make any payments on the promissory note. She was subsequently prosecuted for second degree theft and acquitted. She then filed this action against defendant, Rowe and the Nunns.

Defendant moved for directed verdicts at the close of evidence, on the ground that plaintiff failed to present any evidence to support her claims. He also moved for a directed verdict on his defense of probable cause under ORS 131.655. The trial court denied the motions. The jury returned a verdict in favor of plaintiff and against defendant and Rowe. The verdict specified economic damages of $10,700 and noneconomic damages of $20,000 jointly, and punitive damages of $25,000 each against defendant and Rowe. ⁴

Defendant first assigns error to the trial court's denial of his motion for a directed verdict on plaintiff's claim for intentional infliction of emotional distress. To support that claim, plaintiff must show that defendant: (1) intended to inflict severe mental or emotional distress; (2) that defendant's acts, in fact, caused plaintiff severe mental or emotional distress; and (3) that defendant's acts consisted of some extraordinary transgression of the bounds of socially tolerable conduct or exceeded any reasonable limit of social toleration. Patton v. J.C. Penney Co., 301 Or. 117, 122, 719 P.2d 854 (1986).

Defendant concedes that plaintiff produced evidence of emotional distress. ⁵ However, he contends that there is no evidence that he personally intended to cause her to suffer that distress or that the means he and Rowe used to extract the confessions from plaintiff amounted to outrageous conduct. He acknowledges that the requisite intent can be inferred from outrageous conduct. Bodewig v. K-Mart, Inc., 54 Or.App. 480, 488, 635 P.2d 657 (1981), rev. den. 292 Or. 450, 644 P.2d 1128 (1982).

Whether conduct is socially tolerable is a fact specific inquiry, which we review on a case-by-case basis, "considering the totality of the circumstances involved, to determine whether it constitutes an extraordinary transgression of the bounds of socially tolerable conduct." Lathrope-Olson v. Dept. of Transportation, 128 Or.App. 405, 408, 876 P.2d 345 (1994).

The facts, viewed most favorably to plaintiff, would permit a jury to find that defendant knew that plaintiff was upset when he entered the interrogation room, that he knew that she had already endured nearly three hours of interrogation before he arrived, and that she had already admitted to taking $4,000 worth of merchandise, lottery tickets and cash from the market. Nonetheless, both defendant and Rowe continued to press plaintiff to make additional admissions. They repeatedly told plaintiff that they knew that there was more that she was not telling them, despite defendant's admission that he had no evidence that plaintiff had, in fact, taken merchandise or lottery tickets. Defendant also admitted that he did not know the bookkeeping methods used by the Nunns, how they controlled inventory or how employees made purchases from the market. He further admitted that he did not know that the Nunn family was allowed to take merchandise from the store without paying the cashier, and that he did not attempt to verify that lottery ticket sales matched the alleged thefts by plaintiff.

Plaintiff testified that she confessed only because she wanted to go home and that she was intimidated by the interrogation. She believed that defendant and Rowe had the authority to decide if she would go home or to jail that evening. Plaintiff also testified that she felt she was under duress, was coerced into signing the promissory note and that she was told that she must sign it in order to be able to go home.

We are persuaded that there was evidence from which a jury could find that defendant's course of conduct was intended to intimidate and coerce plaintiff into the confession she made and that the necessary consequence of that conduct would cause her emotional distress. A factfinder could, therefore, decide that defendant intended that consequence. There was also evidence from which a jury could conclude that defendant's conduct exceeded the bounds of social toleration. The trial court did not err in denying defendant's motion for a directed verdict on this claim. ⁶

Defendant next assigns error to the trial court's denial of his motion for a directed verdict on plaintiff's false imprisonment claim. False imprisonment is "the unlawful imposition of restraint on another's freedom of movement." Walker v. City of Portland, 71 Or.App. 693, 697, 693 P.2d 1349 (1985). Restraint may be accomplished by actual or apparent physical barriers, compulsive physical force, a threat to apply physical force, or assertion of legal authority. Gaffney v. Payless Drug Stores, 261 Or. 148, 492 P.2d 474 (1972). Restraint need not be for more than a brief time. Lukas v. J.C. Penney Co., 233 Or. 345, 353, 378 P.2d 717 (1963).

Defendant maintains that plai...