Corporate Property Investors v. Milon

• Court: Georgia Court of Appeals
• Writing for the Court: ELDRIDGE.
• Citation: Corporate Property Investors v. Milon, 249 Ga. App. 699, 549 S.E.2d 157 (Ga. App. 2001)
• Decision Date: 08 May 2001
• Docket Number: No. A01A0706, No. A01A0707.
• Parties: CORPORATE PROPERTY INVESTORS et al. v. MILON. Locke v. Milon.

549 S.E.2d 157

249 Ga. App. 699

CORPORATE PROPERTY INVESTORS et al. v. MILON.

Locke v. Milon.

Nos. A01A0706, A01A0707.

Court of Appeals of Georgia.

May 8, 2001.

Reconsideration Denied May 24, 2001.

Certiorari Denied October 1, 2001.

Duncan & Mangiafico, George E. Duncan, Jr., Atlanta, for appellants (case no. A01A0706).

Kimberly L. Miller, Atlanta, for appellant (case no. A01A0707). ELDRIDGE, Judge.

These are interlocutory appeals from the denial in part of motions for summary judgment by Corporate Property Investors, owners of Lenox Square Shopping Mall, Pembroke Management, Inc., management company for the mall, Minasha Fernanders, a Lenox Square security guard, and Officer Constance A. Locke, the Atlanta Police Department (APD), who was on beat patrol responding to a dispatch to Lenox; their motions were denied as to Captain Ronald C. Milon's, a Northwest Airlines pilot, claims against them for negligence, false arrest, false imprisonment, assault and battery, malicious prosecution, and punitive damages. The trial court erred in denying summary judgment on the claims for assault and battery; the trial court is affirmed as to the denial of summary judgment for claims of negligence, false arrest, false imprisonment, malicious prosecution, and punitive damages as to all the defendants except Officer Locke. Officer Locke is entitled to summary judgment under discretionary immunity.

On December 18, 1996, while passing Episodes Clothing Store, Ms. Fernanders allegedly saw someone, who appeared to be Captain Milon, placing a white blouse into a black bag. She went into the store and approached the plaintiff who had a black bag, tapping him on the shoulder to get his attention. When the security officer approached Milon, he had laid an off-white blouse down on a counter, but again had it in his possession when Officer Locke arrived, because he testified that he was in the process of purchasing it. Fernanders requested that Milon leave the store with her, which he refused to do, saying that this must be a joke; Milon continued shopping for five or ten minutes. At no time did Fernanders identify herself or tell Milon what she wanted or question the employees in the store, regarding the belief that Milon had attempted to shoplift from their store.

Fernanders reported by radio to her supervisor that she had witnessed a customer attempting to shoplift at Episodes and asked "for a backup police officer." The supervisor called APD; it was reported to APD that "there was a shoplifting in progress", and Officer Locke responded. Outside Episodes, Fernanders told Officer Locke outside Episodes that "she witnessed Mr. Milon take a white blouse, conceal it in his tote bag, and attempt to walk out of the store[; he] saw her standing there and immediately turned around, put the bag down, grabbed the blouse, and put it either back out on the shelf or hung it up." Fernanders pointed out Captain Milon, who was still inside Episodes, to Locke as the attempted shoplifter.

Captain Milon denied attempting to place the blouse in his child's tote bag or even opening it in Episodes and stated he never saw Fernanders until she spoke to him. The assistant manager of Episodes assisted Milon when he entered the store while he selected an off-white blouse and a pants suit for his wife.

On cross-examination, Fernanders admitted that she never witnessed Captain Milon remove a white blouse from his bag. But Fernanders had previously told Locke and the magistrate that she had witnessed Milon place a garment in the bag and then remove the garment, which had been relied upon to establish probable cause for the arrest and bindover. At the preliminary hearing attended only by Fernanders for the prosecution, Fernanders revealed that as she was passing by the store window, she had seen Milon putting the blouse in the bag through an array of mannequins from a distance of 45 feet.

Officer Locke approached Captain Milon based on the allegations made by Fernanders alone, and Milon saw Fernanders with Officer Locke and responded defensively and belligerently as a black man previously falsely suspected of shoplifting by Fernanders while Christmas shopping for his wife. Officer Locke asked where the black bag was, and he answered, "what bag?" Then Milon told Officer Locke that his child's black tote bag was in the chair. Neither Officer Locke nor Fernanders made any investigation or questioned any of the employees of Episodes prior to or even after arresting Milon. Thus, based upon her experience, Officer Locke concluded that Milon's demeanor indicated his guilt to her. Therefore, Officer Locke arrested Milon based upon his demeanor, response, and Fernanders' statement. Based only on the facts told her by Fernanders and her subjective opinion of Milon's attitude, she immediately placed Milon under arrest.

Based upon Fernanders' testimony alone, Captain Milon was bound over by the magistrate. In the State Court of Fulton County, the charge of shoplifting was nolle prossed against Milon.

Case No. A01A0706

1. The defendants contend that the trial court erred in denying summary judgment to them as to negligence, false arrest, false imprisonment, assault and battery, malicious prosecution, and punitive damages.

(a) The defendants contend that they are shielded from liability for false arrest, false imprisonment, and malicious prosecution, because Officer Locke exercised her own professional judgment in making the arrest of Captain Milon for attempted shoplifting without the influence of Fernanders. See Jacobs v. Shaw, 219 Ga.App. 425, 426(1), 465 S.E.2d 460 (1995). Had the evidence revealed that Officer Locke, in fact, made an independent investigation, as was her professional duty to do, and based her decision to arrest Milon on her independent investigation and the statements of Fernanders, then there would be a basis upon which professional judgment was exercised, and such would constitute a defense. However, merely to assert that Officer Locke exercised her professional judgment based on no probative facts, other than those told to her by Fernanders, some of which Fernanders now admits that she did not see, fails to constitute the predicate for the defense of the exercise of independent professional judgment by the on-duty police officer, because Officer Locke acted solely on the facts urged by another without any independent investigation to corroborate such allegations. See id. at 426-427(1), 465 S.E.2d 460; McLeod v. Pruco Life Ins. Co., 215 Ga.App. 177, 179-180(1), 449 S.E.2d 895 (1994). Further, plaintiff's evidence controverts Officer Locke's affidavit and testimony. Jacobs v. Shaw, supra at 426, 465 S.E.2d 460.

In Jacobs v. Shaw, supra at 426, 465 S.E.2d 460, the professional judgment of the nonparty officer was based upon the prosecution witness' statement, misrepresentations made by the accused regarding the prosecuting witness' statement, on-scene investigation, review of the report by the state regulatory agency after checking the gas pump for accuracy, the accused's statement, and professional experience. Id. at 427, 465 S.E.2d 460. In McLeod v. Pruco Ins. Co., supra at 178-179, 449 S.E.2d 895, the detective based his professional judgment upon two witnesses' statements obtained in the investigation, circumstantial evidence that the accused only had access to the money determined by investigation, and the officer's independent investigation. In contrast, in this case the only alleged facts upon which probable cause could be based was the statement of Fernanders as to what she allegedly saw.

Furthermore, as a party and not as a disinterested witness, unlike the above cases, Officer Locke's statement that the arrest was based upon her professional judgment constitutes a mere statement of self-serving opinion and a legal conclusion that cannot support the grant of summary judgment.

[W]e must give full weight to the rule that a jury, not a judge, may construe the facts upon which such opinion is based and reach a diametrically different conclusion to that reached by the witness.... Thus, on opinion evidence alone, a summary judgment is not demanded as a matter of law, although such opinion evidence is always sufficient to make a jury issue.

(Citations omitted; emphasis in original.) Ginn v. Morgan, 225 Ga. 192, 193, 167 S.E.2d 393 (1969); see also Savannah Valley Production Credit Assn. v. Cheek, 248 Ga. 745, 746-747, 285 S.E.2d 689 (1982); Tony v. Pollard, 248 Ga. 86, 90(3), 281 S.E.2d 557 (1981); Home Ins. Co. v. Sunrise Carpet Indus., 229 Ga.App. 268, 272-273(2), 493 S.E.2d 641 (1997). "`An expert may aid the jury, but he can not perform the functions of a juror, and under the guise of giving testimony, state a legal conclusion. [Cits.]'" Wells v. Metro. Life Ins. Co., 107 Ga.App. 826, 834, 131 S.E.2d 634 (1963). "Allegations, conclusory facts, and conclusions of law cannot be utilized to support or defeat motions for summary judgment." (Citations and punctuation omitted.) Johnson v. MARTA, 230 Ga.App. 105, 107(1), 495 S.E.2d 583 (1998).

(b) If all of what Fernanders told Officer Locke was proven to be true, then this would constitute probable cause for the arrest. However, there exists a compelling issue of the credibility of Fernanders. Fernanders made material, prior inconsistent statements to both Officer Locke and the magistrate that she saw Captain Milon take the blouse out of the bag and put it back on the shelf; but on deposition she admitted that she had not seen Milon take the blouse out of the bag.¹ Further, there exist facts tending to disprove what Fernanders testified to having seen, i.e., (1) the fact that she allegedly observed what she claims while walking by the store window handing out security flyers 45 feet away and through a mannequin-crowded store window; (2) the fact that the child's black tote bag allegedly held the blouse with all the other items in it already; (3) the...