City of Hialeah v. Rehm, 83-1816

• Decision Date: 07 August 1984
• Docket Number: No. 83-1816,83-1816
• Citation: 455 So.2d 458
• Parties: The CITY OF HIALEAH, a municipal corporation, Detective Martin J. Farraher, and Officer Barry G. Krane, Appellants, v. Stephen Arthur REHM, Kenneth Rehm and Isabel Rehm, Appellees.
• Court: Florida District Court of Appeals

Page 458

455 So.2d 458

The CITY OF HIALEAH, a municipal corporation, Detective Martin J. Farraher, and Officer Barry G. Krane, Appellants, v. Stephen Arthur REHM, Kenneth Rehm and Isabel Rehm, Appellees.

No. 83-1816.

District Court of Appeal of Florida Third District.

Aug. 7, 1984.

Goodwin, Ryskamp, Welcher & Carrier and Fulvia A. Morris, Miami, for appellants.

Nathan & Williams and Martin L. Nathan, Miami, for appellees.

Before HENDRY, BARKDULL and BASKIN, JJ.

BARKDULL, Judge.

Appellants ¹ seek review of an adverse money judgment in the amount of $25,000 entered by the trial court pursuant to a directed verdict on the issue of liability and a jury verdict on the issue of damages. The plaintiff's original action in the trial court sought damages for false arrest, false imprisonment, malicious prosecution and intentional infliction of emotional distress. ²

Pursuant to a request by Burdines Management of the Westland Mall in Hialeah, the city assigned a tactical police team to monitor the restrooms in Burdines store for individuals who would mill about the restrooms observing other patrons and would engage in either acts of exposure or engage in sexual conduct with other individuals in the restroom. On the day in question, Stephen Rehm, a 14 year old, entered the men's restroom on at least four different occasions in a one-hour period during which time he did not use any of the facilities but rather wandered around looking at whoever was at the urinals and looking into the stalls through the crack in the doors. On each occasion he would stay five to ten minutes. On one occasion he did enter a stall but there was no indication he had in fact used the facility. Finally the officers being of the opinion that he was guilty of loitering decided to get a field interview card on the plaintiff and explain to him the restroom was not a place to hang out. One of the officers followed the plaintiff out of the restroom and when he attempted to stop him, the boy ran. He was caught, arrested and charged with loitering and prowling. The charge was ultimately dismissed and dropped without prosecution. Thereupon, the plaintiffs brought the instant action seeking by their third amended complaint, damages for false arrest, false imprisonment, malicious prosecution and intentional infliction of emotional distress. At the conclusion of the entire case the plaintiffs moved for a directed verdict on the premise that there was no testimony that the boy was about to approach anyone else or do anything that would cause the police to be concerned for the safety of others. The trial court granted the motions and directed a verdict for the plaintiffs on the issue of liability. This appeal is taken from the judgment entered pursuant to the jury verdict on the issue of damages.

We hold that the trial court erred in directing a verdict for the plaintiffs. The evidence raised an issue as to whether the officers had justifiable reason to believe the minor plaintiff was guilty of loitering in a semipublic place contrary to usual behavior. Reasonable men could reach different conclusions as to the minor plaintiff's conduct, therefore, that issue should have been submitted to the jury for its determination. Medina v. 187th Street Apartments, Ltd., 405 So.2d 485 (Fla. 3d DCA 1981); Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla. 3d DCA 1979); Budgen v. Brady, 103 So.2d 672, (Fla. 1st DCA 1958).

It is axiomatic that directed verdicts should not be entered if the evidence is conflicting and permits different, reasonable inferences. Riccio v. Allstate Insurance Company, 357 So.2d 420 (Fla. 3d DCA 1978); Sparks v. Ober, 216 So.2d 483 (Fla. 3d DCA 1968). A motion for directed verdict should be granted only when the court, after viewing the evidence and testimony in the light most favorable to the nonmoving party (defendants in the case sub judice) concludes that the jury could not reasonably differ as to the existence of a material fact or inference and that the movant is entitled to judgment as a matter of law. Gates v. Chrysler Corporation, 397 So.2d 1187 (Fla. 4th DCA 1981); Kilburn v. Davenport, 286 So.2d 241 (Fla. 3d DCA 1973). Where there is any evidence upon which a jury could lawfully find for the movant's adversary, a verdict should not be directed. Newsome v. St. Paul Fire & Marine Insurance Company, 350 So.2d 825 (Fla. 2d DCA 1977). The ultimate question then is whether there was any evidence upon which a jury could have lawfully found a verdict for defendants. Martin v. Thompson, 124 So.2d 744 (Fla. 3d DCA 1960).

The record reveals testimony concerning the officers' belief that the elements of the offense of loitering and prowling had been met by the activities of Stephen Rehm. The loitering and prowling statute, Section 856.021, Florida Statutes (1977) provides as follows:

"(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.

(3) Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree ..."

The officers agreed the elements of the offense had been met by the minor plaintiff visiting the men's room four times in one hour looking at individuals using the facilities, peering into occupied stalls, when there were vacant stalls available, etc. They also agreed Farraher would afford plaintiff a reasonable opportunity to dispel their concern. After Farraher identified himself as a police officer, plaintiff "broke and ran" whereupon he was arrested.

"A police officer making an arrest for an alleged commission of a misdemeanor in his presence is not liable for false arrest if he has probable cause (or substantial reason) to believe the arrested person was committing a misdemeanor in his presence." Toomey v. Tolin, 311 So.2d 678, 681 (Fla. 4th DCA 1975). In determining...