Chestnet v. K-Mart Corp.

• Decision Date: 18 October 1988
• Docket Number: K-MART,No. 55A01-8801-CV-23,55A01-8801-CV-23
• Citation: 529 N.E.2d 131
• Parties: Emma CHESTNET, Plaintiff-Appellant, v.CORPORATION, Karen France, John Doe I, and John Doe II, Defendants- Appellees.
• Court: Indiana Appellate Court

Page 131

529 N.E.2d 131

Emma CHESTNET, Plaintiff-Appellant, v. K-MART CORPORATION, Karen France, John Doe I, and John Doe II, Defendants- Appellees.

No. 55A01-8801-CV-23.

Court of Appeals of Indiana First District.

Oct. 18, 1988.

G. Michael Loveall, Jones, Loveall, and Johnson, Franklin, for plaintiff-appellant.

John L. Lisher, Osborn, Hiner & Lisher, Indianapolis, for defendants-appellees.

NEAL, Judge.

STATEMENT OF THE CASE

Plaintiff-appellant, Emma Chestnet (Chestnet), appeals the decision of the Morgan Circuit Court granting summary judgment in favor of defendant-appellees, K-Mart Corporation (K-Mart) and Karen France (France), on her suit for malicious prosecution, false imprisonment, slander, and negligent hiring. ¹

We affirm.

STATEMENT OF THE FACTS

The evidentiary material before the trial court and all the reasonable inferences therefrom most favorable to Chestnet is as follows. On December 5, 1981, Chestnet entered a K-Mart store located in Greenwood, Indiana and proceeded to the automotive department. At this point, France, the store security manager, began observing Chestnet through a two-way security mirror. While Chestnet was in the automotive department, France saw her remove a gas cap from a display and examine it. With a gas cap in her hand, Chestnet then proceeded to the cosmetic department at which time she placed the gas cap in her purse. She subsequently exited the store without purchasing any merchandise or paying for the gas cap.

Upon observing these events, France approached Chestnet outside the store, requested that she return, and escorted her to an office inside the store. Inside the office, Chestnet voluntarily emptied her purse, revealing the gas cap, and attempted to explain that she did not steal it. She told France she entered the store in order to exchange a previously purchased gas cap which she had in her purse with another suitable cap. While in the automotive department she pulled the previously purchased gas cap out of her purse for the purpose of comparing it with others on display. She was unable to ascertain whether there was a suitable cap for exchange and returned the previously purchased cap to her purse as she proceeded to the cosmetic department. In her deposition, France testified that Chestnet did not indicate to her that the gas cap was not stolen nor did she recall Chestnet offering any explanation in defense of herself.

After discovering the gas cap in Chestnet's purse, France began filling out an incident report. While completing the report, Chestnet supplied France with a ficticious name and address. France subsequently learned Chestnet's true identity and prepared a new report which Chestnet refused to sign. France then contacted the Greenwood Police Department. Chestnet's in-store detention lasted for a period of no longer than 30 minutes before the police arrived and arrested her. She was transported to the Greenwood Police Station and charged with the offense of conversion. K-Mart instigated criminal prosecution of the matter, and the Johnson County Court found probable cause existed for Chestnet's arrest for conversion. Chestnet was subsequently found not guilty of the charge, however, when witnesses for the prosecution failed to appear. France explained that her absence was due to the fact that she had never received notification of the trial date.

On December 1, 1983, Chestnet filed a seven count complaint against France and K-Mart for malicious prosecution, libel and slander, and false imprisonment. Counts II, IV, and VI were claims against K-Mart under the doctrine of respondeat superior for the liability of its agent, France, as alleged in Counts I, III, and V. Additionally, Count VII of the complaint was directed at K-Mart for the negligent hiring of its employees. On February 4, 1985, K-Mart and France filed a motion for summary judgment regarding the malicious prosecution count of the complaint. Following a hearing, the trial court granted the motion, determining that probable cause existed for On February 12, 1987, K-Mart and France filed a second motion for summary judgment as to the false imprisonment, libel and slander, and negligent hiring counts. Following a hearing, the trial court issued an order granting summary judgment on the remaining counts in favor of K-Mart and France. The trial court found that Chestnet's in-store detention was reasonable and lawful under IND.CODE 35-33-6-2(a) and (b), and as such both France and K-Mart were immune from liability for the detention under IND.CODE 35-33-6-4. With regard to the libel and slander count, the trial court determined that although defamatory, any statements France made in good faith to police officers pursuant to an investigation were protected by a conditional privilege and as such were not slanderous. Following the denial of her motion to correct error, Chestnet instituted this appeal.

Chestnet's arrest so as to defeat her claim for malicious prosecution.

ISSUES

Chestnet raises the following issues for our review:

I. Whether the trial court erred in granting summary judgment on the false imprisonment count for the reason that a genuine issue of material fact exists as to whether the procedural mandates of IND.CODE 35-33-6-2 were properly followed.

II. Whether the trial court erred in granting summary judgment on the false imprisonment count for the reason that the immunity afforded under IND.CODE 35-33-6-4 applies only to in-store detentions and does not insulate K-Mart from the civil liability arising from the subsequent improper arrest.

III. Whether the trial court erred in granting summary judgment on the libel and slander count for the reason that the defamatory statements complained of were made to third persons who were not police officers involved in the investigation of a crime and as such were not statements protected by a conditional privilege.

DISCUSSION AND DECISION

Standard of Review

The rules governing summary judgment are well settled. In reviewing a motion for summary judgment we apply the same standard as that employed by the trial court. Summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits and testimony, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Howard v. H.J. Ricks Const. Co., Inc. (1987), Ind.App., 509 N.E.2d 201, trans. denied. The party seeking summary judgment has the burden of demonstrating the absence of a genuine issue of material fact. Wingett v. Teledyne Industries, Inc. (1985), Ind., 479 N.E.2d 51. If there is any doubt as to the existence of a material factual issue, the motion should be resolved in favor of the non-movant. Id. In ascertaining the existence of any doubt, the contents of all pleadings, papers, and affidavits are liberally construed in favor of the non-movant. Bell v. Northside Finance Corp. (1983), Ind., 452 N.E.2d 951. Even where the facts are undisputed, the ability to draw from them conflicting inferences which would alter the outcome makes summary judgment inappropriate. Carrell v. Ellingwood (1981), Ind.App., 423 N.E.2d 630. However, the nonmoving party may not simply rest on his pleadings. When the moving party establishes the absence of a genuine issue of material fact, the opposing party must come forward and contest the motion by setting forth specific facts which show that there is a genuine factual issue. Popp v. Hardy (1987), Ind.App., 508 N.E.2d 1282.

ISSUE I: False Imprisonment

IND.CODE 35-33-6-2, the statute governing the detention of individuals suspected of theft of a merchant's property by owners or agents of the store, provides (a) An owner or agent of a store who has probable cause to believe that a theft has occurred or is occuring on or about the store and who has probable cause to believe that a specific person has committed or is comitting the theft may:

1. detain the person and request the person to identify himself;

2. verify the identification;

3. determine whether the person has in his possession unpurchased merchandise taken from the store;

4. inform the appropriate law enforcement officers; and

5. inform the parents or others interested in the person's welfare, that the person has been detained.

(b) The detention must:

1. be reasonable and last only for a reasonable time; and

2. not extend beyond the arrival of a law enforcement officer or two (2) hours, whichever first occurs.

Also relevant here is IND.CODE 35-33-6-4 which provides immunity from liability to an owner or agent of a store for any detention which is lawful under IND.CODE 35-33-6-2. That statute states:

A civil or criminal action against an owner or agent of a store or a law enforcement officer may not be based on a detention which was lawful under section 2 of this chapter. However, the defendant has the burden of proof that he acted with probable cause under section 2 of this chapter.

Chestnet first contends there is a genuine issue of material fact as to whether the procedural mandates of IND.CODE 35-33-6-2 were properly followed. Specifically, she maintains there is a genuine issue of material fact as to whether her in-store detention was lawful. Chestnet claims France's determination as to whether Chestnet had unpurchased merchandise in her possession was unreasonable. She argues that a reasonable inquiry into the matter would have included conducting an inventory of the merchandise to determine whether a gas cap was missing. Because a genuine issue existed as to whether the detention was reasonable, it was inappropriate to enter summary judgment in favor of France and K-Mart on the basis of the immunity afforded under IND.CODE 35-33-6-4.

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