Deadman v. Valley Nat. Bank of Arizona, 1

• Decision Date: 29 September 1987
• Docket Number: CA-CIV,No. 1,1
• Citation: 743 P.2d 961,154 Ariz. 452
• Parties: David G. DEADMAN, a single man, Plaintiff-Appellee, v. VALLEY NATIONAL BANK OF ARIZONA, a federal bank, Defendant-Appellant. 8953.
• Court: Arizona Court of Appeals

Page 961

743 P.2d 961

154 Ariz. 452

David G. DEADMAN, a single man, Plaintiff-Appellee, v. VALLEY NATIONAL BANK OF ARIZONA, a federal bank, Defendant-Appellant.

No. 1 CA-CIV 8953.

Court of Appeals of Arizona Division 1, Department D.

Sept. 29, 1987.

[154 Ariz. 454] Brenda K. Warneka, Phoenix, and Vincent D. Maggiore, Scottsdale, for plaintiff-appellee.

Mohr, Hackett, Pederson, Blakley, Randolph & Haga, P.C. by Michele M. Feeney, William C. Blakley, Phoenix, for defendant-appellant.

OPINION

BROOKS, Judge.

This is an appeal from a judgment entered upon a directed verdict, holding defendant, Valley National Bank, liable to plaintiff, David G. Deadman, for false arrest. The bank also appeals from the denial of its motion for a new trial or for judgment notwithstanding the verdict, as to the amount of damages awarded by the jury.

Phoenix police officers arrested Deadman in the lobby of the bank's Paradise Valley Mall branch after a bank employee called police to report her belief that Deadman was attempting to use a fraudulent credit card. The officers detained Deadman for half an hour and then released him when it was determined that his credit card was valid.

The dispositive question on appeal is whether either party was entitled to judgment as a matter of law on the issue of the bank's liability for instigating Deadman's wrongful arrest. Because we believe that the matter was one for the jury to decide, we remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

The relevant facts are not in dispute. Around July 15, 1982, while staying with relatives in Scottsdale, Arizona, Deadman, then a Michigan resident, arranged to buy a truck. The seller allowed Deadman until the following Saturday afternoon to pay for it. Before 9:00 a.m. on Saturday, July 17, 1982, Deadman joined others waiting for the Paradise Valley Mall branch of the Valley National Bank to open for business. Deadman was dressed in cutoff jeans, a tank-top shirt, tennis shoes, and a baseball cap.

Once inside the bank, Deadman asked teller Leslie Bertram for a $2,000 cashier's check payable to the seller of the truck. Deadman gave Bertram his Michigan driver's license and his Merrill Lynch VISA card. The license had Deadman's picture and signature on it. The VISA card, which also bore Deadman's signature, permitted direct withdrawal of money from his account with Merrill Lynch, which contained more than $2,000.

Bertram tried to get authorization for the transaction, but was unable to get through to the computer by telephone. She went to Pam Barrett, the branch operations manager and acting supervisor, and explained the situation. Bertram thought that there might be some problem with her pass code because she was working at the Paradise Valley Mall branch only temporarily. When Bertram telephoned again for computer authorization, this time using Barrett's pass code, a woman answered and told her that there was some trouble with the computer. The woman said that she would go to another room to get the authorization and would then call Bertram back. Bertram told Deadman that there would be a delay in processing his transaction. She testified that the possibility that Deadman's card was fraudulent had never crossed her mind; nothing about the transaction aroused her suspicions.

Meanwhile, Barrett received a telephone call from Irma Chavez, the operations supervisor at the bank's Metrocenter branch. The night before, someone at the Metrocenter branch had telephoned Barrett to ask her to read one of the bank's warning bulletins over the telephone. The bulletin concerned a gang that was operating in the Phoenix area using stolen or forged credit cards to obtain cash advances. The purpose of Chavez' telephone call that morning was to bring Barrett up to date on the events of the previous night, when a man had come into the Metrocenter branch near closing time and had asked for a $2,000 cash advance. He had presented an out-of-state license and credit card. The credit card had proved to be fraudulent, and police had arrested the man.

As she spoke with Chavez, Barrett had Deadman's driver's license, credit card, and signed cash advance form on the desk before her. She became alarmed at the thought that Deadman's card might also be fraudulent. Barrett knew that fraudulent transactions were normally attempted when the bank was least organized and that Paradise Valley Mall and Metrocenter were the only branches open on Saturday mornings. She observed Deadman pacing around and thought he looked nervous. She also believed that he appeared rather young to have a $2,000 line of credit. She testified: "[I]t just looked to me to be the same type of situation that Irma had dealt with the night before, and so the judgment was made to call the police in at that moment."

Barrett testified that before Deadman's arrest, she did not know that the genuineness of a credit card could be tested by scratching the back of the card. Neither did she know whether the bank had a book that listed the numbers of stolen or forged cards. She did know of a backup telephone number that could be used to get authorization on the credit card if communication could not be established using the main number. She did not try to use the backup number before calling the police, however, because she was already on the phone with Irma Chavez. Barrett thought that if she were to hang up, and if Deadman were in fact using a forged card, he might become alarmed and leave the branch. Barrett testified:

And so while I was on the phone with her it was agreed between us that I should remain on the phone with her so as not to alert the customer, because if he was actually a criminal in the branch we didn't want him to leave. We would rather have apprehended him.

Barrett and Chavez therefore agreed that Barrett would stay on the phone to avoid alerting Deadman and that the police would be contacted from the Metrocenter branch. At Chavez' request, Kathy Schoech, another employee at the Metrocenter branch, made the call. The information transmitted to the police was that "the Paradise Valley Mall branch believed that they had a man there presenting some kind of fraudulent credit card." Barrett and Chavez testified that they all wanted the police to get to the Paradise Valley Mall branch as quickly as possible so that the police could "apprehend" the man and find out what was going on.

Barrett testified that the bank had surveillance cameras and that, to the best of her knowledge, they were functioning on the date of the incident. She acknowledged that she might have refused to process Deadman's transaction, taking his picture before he left. In fact, someone did activate the cameras, and pictures of the incident were taken.

While Schoech was in contact with the police, the police dispatcher sent out a "hot call," a two- or three-second radio tone denoting an emergency. The dispatcher then transmitted further information indicating that there was a "forgery in progress" at the Valley National Bank in Paradise Valley Mall; she explained what was being forged and described the suspect and his location within the bank. One of the responding officers testified that he had not asked the dispatcher what proof of forgery there was. He explained:

When we have a crime in progress we would like to get the situation under control first and investigate. Us figuring that a bank is going to call us on a forgery, they have more knowledge of what to look for in a forgery in my assumption than an officer would.

Back at the Paradise Valley Mall branch, Deadman asked Bertram how long he would have to wait for his check. She told him that it would be quite a while. Deadman then left the bank for about five minutes, bought a cup of coffee, and brought it back with him. Again he asked Bertram if the check was ready. She told him it would take just a little longer. He waited another five or ten minutes before approaching Barrett, whom he thought was trying to get approval for his transaction. She told him it would not be much longer. He continued to wait.

When the officers arrived, Deadman was standing between the teller counter and the new accounts area. One officer, after noting that Deadman matched the description he had just heard over the radio, looked to Barrett for confirmation. She made eye contact with the officer and nodded her head in Deadman's direction. The officers approached Deadman from behind, grabbed his arms, placing them on the counter. The officers frisked Deadman and handcuffed him. The record contains no evidence that any bank employee expressly requested Deadman's arrest, told the officers to frisk or handcuff him, or offered any advice about how to handle the situation.

After taking Deadman into custody, the officers asked Barrett where they could go to talk to him. She directed them to a glass-walled conference room. Deadman testified that as he was being taken to the conference room, he heard Barrett say something like, "we finally caught him."

While one officer questioned Deadman in the conference room, another officer came out to ask Barrett exactly what was going on. Barrett explained to him the bases for her suspicions. The officer asked Barrett whether there was any means of verifying the card. Barrett remembered that there was another number that she could call for verbal authorization on the card. The officer and Barrett called the number and promptly received the verification, at which Barrett was very "shocked." She asked the person on the line if he was sure, and when he asked why, she explained her suspicions to him. He said he would double-check. Several minutes later, he returned to say that he could find nothing wrong and that, as far as he was concerned, she could give Deadman the money.

Barrett then stepped to the door of the conference room, apologized to Deadman, made explanations, and asked if he would still like his money. Deadman was released. He...